R v Amosa [2015] ACTSC 34

Supreme Court of the ACT|2015-02-04|Before: Murrell CJ

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW - Sentence - particular offences - offences against the person - cause grievous bodily harm − early guilty plea

Carberry v R [2013] ACTCA 20

DPP v Lawrence [2004] VSCA 154

DPP v Zullo [2004] VSCA 153

McCullough v R [2009] NSWCCA 94

R v Byrne (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 3 February 2014)

R v Carberry (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 19 October 2012)

R v Laipato (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 16 September 2010)

R v Loveridge [2014] NSWCCA 120

R v Neish (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 24 May 2013)

R v Pumpa [2014] ACTSC 223

1. The offender adhered to a plea of guilty to the offence that on 21 April 2014 he recklessly inflicted grievous bodily harm on the victim. The offence is contrary to s 20 of the Crimes Act 1900 (ACT) and it carries a maximum available penalty of 13 years' imprisonment.

2. The plea of guilty was entered at the earliest reasonable opportunity. It entitles the offender to a discount of 25% on sentence. The discount relates primarily to the utilitarian value of the plea. I also take into account the other considerations in s 35 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), including the fact that the Crown case was relatively strong.

3. The offender has spent no time in custody apart from half a day following his arrest.

4. At about 4.00 am on 21 April 2014, the offender was at the Academy nightclub in central Canberra. Also present at the club was the victim and a group of his friends including K. At about 4.10 am, Academy security staff directed K to leave the nightclub. K walked towards the exit. He stopped near the exit to speak to the security officer as he waited for his friends, including the victim. At that time, the offender walked up behind K and pushed him, in effect pushing him up the stairs towards the ground level exit. K assumed that the offender was a security staff member. At the ground floor exit from the nightclub, closed circuit television (CCTV) footage shows the victim's group exiting the premises and also shows the offender. It shows K beginning to speak to a security staffer. Another member of the victim's group (S) was standing next to K.

5. The offender approached S and pushed him, gesturing to him that he should move into the street. The victim intervened in an attempt to calm the situation. He placed himself between the offender and the victim's friends. The offender approached the victim. The victim put his arm up in a defensive manner. The offender pushed towards the victim and words were exchanged. The victim continued to move backwards away from the offender. The offender followed closely while the apparently heated verbal exchange continued. As the victim continued to back away from the offender, K attempted to place himself between the offender and the victim but the offender shoved him out of the way. S then placed himself between the offender and the victim, with his back turned to the offender and his arms stretched out sideways. The offender shoved S in the back while continuing his verbal exchange with the victim.

6. The victim then turned away from the offender and began walking away, gesturing for his group to come with him. After pushing S out of the way, the offender advanced rapidly towards the victim. He struck the victim in the head with a closed fist. The victim fell to the ground and his head struck the concrete pathway. The victim was rendered unconscious.

7. The Crown relied on the facts that that the victim was struck from behind after the offender rushed at him. In order to throw the punch, the offender had to push S out of the way. The punch was targeted at the victim's head. After striking the victim, the offender looked at the victim and then left the nightclub area. Strangely, security staff did not appear to assist the victim. Fortunately, two members of the public rendered assistance to the victim until ambulance officers arrived. Police attended shortly afterwards.

8. When the ambulance officers arrived, they assessed the victim as having a Glasgow Coma Score of 3. This is the lowest score possible. It reflected a state of deep unconsciousness on the part of the victim. Had the victim received no appropriate medical intervention, he could well have died or at least sustained a very serious brain injury.

9. As it was, the victim was transported to the Canberra Hospital, where he was treated conservatively. He remained in hospital for a week. He sustained a fracture of the right skull bone around the right ear, bleeding on the front surface of the brain on both sides, bruising of the brain on both sides around the temple area and bleeding behind the right eardrum. He also lost his sense of smell and the associated sense of taste. The victim has an increased risk of dementia and Parkinson's Disease. Whether these possibilities will materialise is unknown. Nevertheless, they must be a source of worry to the victim. The victim has not recovered his sense of smell and taste. It is not known whether the loss is permanent.

10. After the incident, the media were asked to assist in identifying the offender. CCTV footage was broadcast to the public. A member of the public contacted the police and identified the offender as the perpetrator. The offender's telephone call records confirmed that he was in the city precinct at the relevant time. He hired a taxi soon after the incident at a central Canberra location. He travelled with a friend to his then residence. Soon after the incident, the offender's consciousness of guilt in relation to the commission of the offence caused him to leave Canberra. A warrant was issued for his arrest. In October 2014, in the company of his Victorian based family, the offender voluntarily attended the Winchester Police Centre in Canberra.

11. The victim impact statements of the victim and his mother disclose that, while the victim was recovering in hospital, he was in excruciating pain. Thereafter he experienced symptoms that are commonly felt by people who have suffered brain injury, including headaches, agitation, difficulty with concentration, problems with balance, dizziness, breathlessness and photosensitivity. While his condition was being monitored and assessed, his movements were restricted. For example, he could not drive a car or fly. He spent a significant time off work. The precise period is not clear. When he returned to work, he undertook restricted duties and worked restricted hours. He has a relatively high level position in the health industry. Ultimately, he returned to full duties. The principal ongoing disabilities relate to loss of the senses of smell and taste and the psychological sequelae of the events of 21 April 2014.

12. There has been a significant impact on the victim's family. They are very worried about the victim. They fear that, in a psychological sense, he has not yet come to terms with the offence.

13. The Court acknowledges the severe injuries sustained by the victim, both physical and psychological, and expresses its sympathy for him.

14. The offender was 25 years of age at the time of the offence. He is of Samoan background. He was schooled to Year 12. His criminal history contains a conviction in Victoria for an offence of recklessly causing serious injury on 11 July 2010, for which he was sentenced to 16 months' imprisonment. The sentence was suspended. It is of concern that the facts which led to that conviction were very similar to the facts of this offence. The Victorian incident occurred at a nightclub. It involved an alteration between the offender's group and the victim's group. The offender punched the victim in the head and then stomped on him. A fight ensued between the offender's group and the victim's group.

15. In relation to the offence that is the subject of these proceedings, the offender was released on bail and has resided with his father in Victoria.

16. His father is not working and the offender is the only breadwinner in the house. The offender works as a fulltime carpenter, having qualified in that trade in 2013. He enjoys good family and community support in Victoria, particularly from the Samoan Christian community. The offender tendered letters showing that he is a devoted Christian who received a strong Christian upbringing. The authors of the letters describe the offender as polite, responsible and active within the Samoan community. They state that he is not usually violent and that his conduct on the occasion in question was out of character.

17. A comprehensive Pre-Sentence Report was not compiled as the offender was based in Victoria. Instead, a less detailed, Court Duty Report was prepared. The reporter stated that the offender is at low risk of reoffending. The reporter noted that the offender had a previous conviction. However it is unclear whether the reporter was aware of the circumstances surrounding the Victorian conviction.

18. The offender was in a relationship for some years. Because of that relationship, he moved from Victoria to Canberra to reside with his girlfriend. They lived together until the relationship ended in September 2013. The offender then began to consume alcohol to excess. The 2010 offence suggests that that was not the first time that the offender had consumed alcohol to excess.

19. The offender gave evidence that on the night of the incident, he was very intoxicated. He rated his level of intoxication as eight out of 10. He asserted that he has a limited recollection of the events on that night because of the level of his intoxication.

20. The objective seriousness of an offence of this nature has two aspects; the nature of the behaviour in which the offender engaged and the associated level of moral culpability, and the nature of the grievous bodily harm that was suffered by the victim.

21. As far as the offender's behaviour and the associated moral culpability are concerned, the offence is of significant seriousness. Although there was only one blow, it was a powerful and targeted blow that was directed at the victim's head, the most vulnerable part of the body. The evidence does not disclose whether it was the blow itself or the impact with the pavement that caused the victim's skull to fracture. In the offender's favour, I assume that it was the impact with the pavement. However, that does not do much by way of diminishing his culpability because the blow was a fierce one.

22. The reasons for the offender engaging with the victim are unexplained. All that is known is that words were exchanged between the two men prior to the incident. There was no provocative physical conduct on the part of the victim. The victim attempted to move away from the offender. Earlier, the victim had attempted to protect other members of his group from the offender. The circumstances of the offence could be described as alcohol fuelled gratuitous violence that occurred in the centre of the city, and in a public area. Such incidents cause a great deal of public concern, especially when they involve young people who have consumed alcohol to excess and, for no apparent reason, attack what are usually other young people. The results of such attacks may be lifelong injury or death.

23. The Court was referred to cases from this jurisdiction, New South Wales and Victoria. Most of the cases concerned injuries sustained when a punch was delivered by a relatively young person who was highly intoxicated. Generally, the cases concerned attacks in a public area.

24. The New South Wales decision in R v Loveridge [2014] NSWCCA 120 is significant because of its discussion of general principles. However, it is of little assistance with regard to an appropriate sentencing range because it concerned a one punch injury where a death resulted. The matter was prosecuted as manslaughter and a maximum available penalty of 25 years applied.

25. Other cases to which I was referred were R v Carberry (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 19 October 2012), R v Byrne (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 3 February 2014), Carberry v R [2013] ACTCA 20, R v Pumpa [2014] ACTSC 223, R v Laipato (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 16 September 2010), R v Neish (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 24 May 2013), McCullough v R [2009] NSWCCA 94, DPP v Zullo [2004] VSCA 153 and DPP v Lawrence [2004] VSCA 154. These decisions provided the Court with some assistance as to the usual sentencing range.

26. Some of the cases involved attacks in company. In this matter, although the offender was with others, no other members of his group behaved aggressively. In that sense, he was not "in company" and that is not a relevant aggravating feature in this sentencing exercise. The Crown did not argue otherwise.

27. In relation to some of the ACT cases to which I was taken, the maximum available sentence was 10 years' imprisonment. The maximum available sentence is now 13 years. The maximum available penalty is a very important sentencing parameter.

28. The Crown rightly submitted that the circumstances attaching to each of the decisions referred to the Court are different and one cannot place undue reliance on any one of the matters. But, looked at overall, they do give a reasonably clear indication of the range of sentences that have been imposed for such matters.

29. The Court has had regard to s 7 of the Sentencing Act. That section sets out the purposes for which a sentence may be imposed. In this case, relevant sentencing purposes include the imposition of adequate punishment and general deterrence. The latter consideration has been emphasised in a number of the cases in relation to alcohol fuelled one punch attacks in public. Specific deterrence is of relevance given that the offender was convicted for a very similar offence in Victoria in 2011. Protection of the community is also important in relation to matters such as this.

30. No particular submission was put in relation to the rehabilitation of the offender. It was suggested that he would benefit from drug and alcohol intervention, but a specific proposal was not forthcoming.

31. Accountability is an important sentencing purpose, particularly for an offender who, at 25 years of age, has committed a prior similar offence. Denunciation is also important as are recognition of harm to the victim and the community. The Court has already noted the extent of the harm to the victim and his family.

32. Section 33 of the Sentencing Act outlines relevant considerations that the Court must consider, in so far as they are known and relevant. I have referred to relevant considerations elsewhere in these reasons.

33. In relation to s 33(1)(w) of the Sentencing Act, there was discussion about whether the offender had demonstrated remorse. He wrote a letter to the victim in which he expressed remorse. He convinced some members of the Samoan community in Victoria that he was remorseful. The early plea of guilty is consistent with remorse. However, the remorse expressed by the offender is of a level that is commonly expressed in relation to matters of this nature and it does not significantly mitigate the sentence that would otherwise be imposed.

34. The offender is convicted of the offence of recklessly inflicting grievous bodily harm on the victim. He would have been sentenced to five years' imprisonment but the sentence has been reduced by 25% for the early plea of guilty, taking into account the other considerations in s 35 of the Sentencing Act.

35. The offender is sentenced to three years and nine months' imprisonment. The sentence will commence on 3 February 2015 and expire on 2 November 2018. I impose a non-parole period of one year and 10 months from 3 February 2015 to 2 December 2016. The offender is eligible for release to parole on 2 December 2016.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

(Sentencing) Act 2005

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