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[2025] ACTSC 311
General information, not legal advice.
Supreme Court of the ACT
2025-07-18
Elkaim AJ
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Phonsaya
Citation: [2025] ACTSC 311
Hearing Date: 18 July 2025
Decision Date: 18 July 2025
Before: Elkaim AJ
Decision: See [39]
Catchwords: CRIMINAL – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving – intentional wound – recklessly inflect grievous bodily harm Legislation Cited: Crimes Act 1900 (ACT) ss 20(1) Cases Cited: DPP v Atem [2025] ACTSC 301
Parties: Director of Public Prosecutions (Crown) Nikorn Phonsaya (Offender)
Representation: Counsel M Lucero (Crown) G Le-Couteur (Offender) Solicitors ACT Director of Public Prosecutions ACT Legal Aid (Offender)
File Number: SCC 422 of 2024 ELKAIM AJ:
Introduction:
On 15 April 2025 the offender pleaded guilty to a single charge of recklessly inflicting grievous bodily harm on Mr Dominic Caruso, contrary to s 20(1) of the Crimes Act 1900. The maximum penalty for this offence is 13 years imprisonment.
There is an agreed statement of facts. On 15 September 2024, during the middle of the day, Mr Caruso was driving with his partner along Flemington Road in the suburb of Mitchell. They were in a small sedan called a Mitsubishi Lancer.
Driving along the same road was the offender in a slightly bigger sedan called a Subaru Liberty. It belonged to his mother. He was ‘tailgating’ the Mitsubishi. The two vehicles stopped alongside each other at traffic lights. The offender was revving his engine and looking at the Lancer. Mr Caruso’s partner waved her hand at him in a gesture designed to have him move on. The offender interpreted the gesture as being rude.
The lights turned green. The Subaru went in front of the Lancer and then alongside the Lancer. The offender was calling out for Mr Caruso to pull over. Mr Caruso did not pull over so the offender drove his Subaru behind the Lancer at a very close distance. No doubt wondering about the offender’s reckless driving behaviour, Mr Caruso did pull over and stopped in a bus bay. The offender stopped behind the Lancer. Both drivers alighted from their vehicles as did a passenger who was in the offender’s vehicle.
The offender moved quickly towards Mr Caruso displaying a demeanour of anger and aggression. The offender wanted to know what Mr Caruso’s problem was. Mr Caruso responded “what’s wrong, I don’t know what you’re talking about… We don’t have to do this”.
The offender, full of the bravado of an aggressor invited Mr Caruso to hit him and told Mr Caruso to apologise, because Mr Caruso’s partner had been rude in her hand signals. He said, “tell your bitch to say sorry.” Mr Caruso declined all invitations.
The offender returned to his Subaru, removed a selection of accessories including his hat, sunglasses and bum-bag and then returned to face Mr Caruso. The offender was now armed with a knife. Mr Caruso put his arms up. A fistfight began in which, as observed by Mr Caruso’s partner from the vehicle, the offender had the upper hand. In the course of the fight the offender stabbed Mr Caruso with the knife which had about a 4-inch blade. Mr Caruso pleaded with the offender to stop. He said “I’m sorry”. The offender replied “oh, now you’re sorry”.
Mr Caruso got back into his car. His partner drove him to hospital. Immediate treatment was rendered in the emergency department. There was a finger thoracostomy and a chest tube insertion. The wound was debrided. A thoracostomy is the making of an incision into the chest in order to allow for the insertion of a tube.
There seems no doubt that the injuries could have been fatal, a result which was avoided by the emergency procedures. In overall terms it was found that Mr Caruso had suffered a left sided tension pneumothorax, a left sided haemothorax, left upper lobe pulmonary contusion and an un-displaced fracture of the left anterior second rib.
Mr Caruso was admitted to the hospital and remained there for three days.
The offender was examined by a medical officer on 16 September 2024. There was bruising and swelling to his left cheek and a bruise on his right arm. Clearly one or more of the punches thrown by Mr Caruso had met their target. Equally clearly, Mr Caruso had been acting in self-defence.
During a recorded telephone call with another person on 23 September 2024 the offender seems to boast about his exploits. Of his victim the offender said: “Yeah. [Then describing the victim with an unseemly word sometimes used to denote a part of the female body] the victim almost died, bro.”
The offender was arrested on 17 September 2024, taken into custody where he has remained.
The offender
The offender was born in December 1994. He is 30 years old but, based on the facts in this matter, is yet to grow up. This is also evident from his criminal history which dates back to 2014. On 24 July 2024 the offender was sentenced in the Magistrates Court to one month and 15 days imprisonment, but suspended on condition he entered into an 18 month good behaviour order. The current offending is in breach of the good behaviour order.
Although living with his family the offender has become involved in illicit drug use. To his credit he has, while in custody, undertaken some alcohol and anti-drug awareness sessions.
The offender was born in Canberra. His father died when he was nine years of age. As an adolescent he started to misbehave. He left school in Year 11 and has worked in assorted jobs including as a landscaper and a cleaner.
The offender has a partner with whom he lives in the family home together with their child. Notably, the child was born before the offending, rendering the plea for mitigation arising from a young family less strong.
In the pre-sentence report prepared for the hearing in the Magistrates Court on 24 July 2024 (when he received the suspended sentence) the offender told the authors of his noble intentions to work, stay off alcohol and drugs and generally lead a more responsible life.
It took about two months for him to abandon his good intentions in favour of the criminal conduct for which he now appears before me.
I was provided with a letter from the offender which was said to demonstrate his expressions of remorse. Unfortunately, in the letter, he also seems to attribute some blame to the victim because of something “just thrown at my car”. There is absolutely no evidence to that effect.
I also have a letter from the offender’s sister. She talks about the importance of her brother to both the family and her life as well. She says he unselfishly always put her needs before his. He has always encouraged her in her sporting exploits and she says she feels that he is deeply remorseful and has “a strong desire to rehabilitate himself”.
An Intensive Corrections Order assessment dated 10 July 2025 concluded that the offender was suitable for such an order. The victims
Mr Caruso has provided a victim impact statement. Although he commences his statement stating that he was “driven off the road” I will ignore that description as it is inconsistent with the agreed statement of facts.
In his statement Mr Caruso describes the treatment he received in the emergency department as well as the complications following his discharge from hospital. His wound became infected requiring a return to hospital. He had about three weeks off-work and he has “suffered insomnia, weight gain, hypervigilance, extreme anxiety and PTSD when he drives or sees a person who appears threatening.” He still has scarring and an associated loss of muscular strength.
In respect of his partner, Mr Caruso states:
“For my partner she has had to avoid driving along certain parts of the GDE and Flemington Road, and no longer takes Hayden Drive at all. This is due to the route she had to take to rush me to hospital. She was put under heavy emotionally debilitating stress never leaving the hospital in fears I would get worse or die. She is in therapy, suffering from PTSD from this event and experiences violent and gory nightmares involving loved ones almost every night since this incident occurred. She now suffers from anxiety attacks whenever I’ve had to drive alone because she is afraid that if another incident was to occur, she would not be there to help or, worst case scenario, say goodbye and see me one last time. She is constantly worried about my mental state and physical health.”
Sentencing
In sentencing it is necessary to look at the whole of the circumstances surrounding the offence. In this case the circumstances include the road rage, the access to a knife and its use.
Psychologists can no doubt provide many causes for road rage. They might include the anonymity of being in a different vehicle, an inherently aggressive personality, a desire to protect an important asset (in this case a Subaru) or a perception of being under threat from the manner of driving by a different vehicle. I do not know the cause of the road rage in this matter, but I can say it was totally unnecessary.
Even worse than the road rage was the bravado and aggression in the confrontation after the two drivers emerged from their vehicles. And even more serious was the offender returning to his vehicle to obtain a knife and then stab the victim.
The stabbing could have been fatal. It’s effects on the victim and his partner, including psychological, could well be permanent. I do not think an ICO is appropriate. I think the offender needs to stay in prison for a little longer.
This is an offence which carries a maximum penalty of 13 years. 13 years is an indication of just how seriously such conduct is viewed. Rendering the victim close to, or at least on the path to, a dire ending makes the objective seriousness of the offence at least a good way along the path to very serious. I add that a stab to the chest indicates a high degree of recklessness.
The offender’s criminal record and the offence being committed while under the Magistrates Court orders, lessens the scope for leniency. The offender has breached community-based orders on at least 17 occasions.
There does however need to be a discount for the plea of guilty which I assess at 20% bearing in mind its utilitarian value and the saving of the victim and his partner having to be cross-examined. I am sure that cross examination would have been a particularly harrowing experience for both of them.
By way of comparable sentences the prosecution has provided me with examples of cases both involving road rage and recklessly inflicting grievous bodily harm. I was also reminded of the need for specific and general deterrence, in particular the need to discourage the public from having ready access to knives.
The offender referred me to a sentence I handed down earlier this week in the matter of DPP v Atem [2025] ACTSC 301. On one reading perhaps the facts in that case are more serious but overall I do not think so.
I think the appropriate sentence is four years imprisonment which after deducting 20% becomes 38 months and eleven days.
Because of the breach of the good behaviour order imposed in the Magistrates Court it is necessary to cancel that order. I think the correct course is then to impose the suspended sentence of one month and 15 days.
Although the offender has been in custody since 17 September 2024 the time attributable solely for this offence is 258 days. I will backdate the sentences I will impose to 1 November 2024. Because the suspended sentence is so short and because it took but a few weeks for the good behaviour order to be broken, I think there should only be a short period of concurrency.
For the non-parole period it will be 25 months which takes into account the possibility of rehabilitation.
Orders
Accordingly, I sentence the offender as follows:
The conviction is confirmed.
The suspended sentence imposed in the Magistrates Court is cancelled.
The sentence imposed in Matter No CC2024/22, one month and 15 days, is to commence on 1 November 2024 and end on 15 December 2024.
For the offence of recklessly inflicting grievous bodily harm the offender is sentenced to 38 months and 11 days imprisonment to commence on 10 December 2024 and end on 20 February 2028
The non-parole period is 25 months, to expire on 30 November 2026.
I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim.
Associate: N Dwyer
Date: 22/07/2025
DPP
Phonsaya [2025] ACTSC 311