[2017] ACTSC 51

1. The conviction of David Ian Bartlett for recklessly inflicting grievous bodily harm on another person on 22 May 2015 be confirmed.
2. David Ian Bartlett be sentenced to imprisonment for three years and six months to commence today.
3. The sentence be served by Intensive Correction Order in the community in accordance with s 11 of the Crimes (Sentencing) Act 2005 (ACT).
4. David Ian Bartlett be required to undertake the following additional condition, namely a community service condition that he perform 150 hours of community service work within 12 months.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - recklessly inflicting grievous bodily harm - assessed as suitable for an Intensive Corrections Order - positive subjective circumstances - Intensive Corrections Order made - community service work condition - general deterrence

Crimes (Sentencing) Act 2005 (ACT), ss 11, 11(3), 78, 78(6)

R v Bartlett [2016] ACTSC 390

R v Berg (2004) 41 MVR 399; [2004] NSWCCA 300

R v Ngerengere (No 3) [2016] ACTSC 299

R v Wyper [2017] ACTSC 50

1. On 13 October 2016, David Ian Bartlett, was found guilty of recklessly inflicting grievous bodily harm on the victim when he drove a motor vehicle that collided with the victim.

2. On 23 December 2016, I convicted Mr Bartlett of that offence but adjourned the sentencing until today in order that the Director-General might assess Mr Bartlett for suitability under s 78 of the Crimes (Sentencing) Act 2005 (ACT) for an Intensive Correction Order: R v Bartlett [2016] ACTSC 390.

3. An Intensive Correction Order is a sentencing option introduced into this Territory in 2016. It requires the Court to find that a sentence of full-time imprisonment is appropriate and, indeed, that would often be the sentence imposed on an offender who committed such an offence. Such a sentence may be served by an Intensive Correction Order where the Court considers that there is a justification for it.

4. I have described the sentencing option in some detail in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]- [27]. I do not need to set out what I there said.

5. I do note, however, that such a sentencing disposition is clearly more lenient than

full-time custody but it is a sentence of imprisonment to be served in the community, though under such intensive conditions that the courts have made it clear that it remains both a punitive sentencing option and one with such features as are likely to achieve the purpose of general deterrence.

6. Given Mr Bartlett's subjective circumstances, including, especially, his good character, his age and his lack of any significant prior criminal record, and the general characterisation by his referees that the conduct was "out of character", he is entitled to rely on these matters to justify a moderation of the sentence. See R v Wyper [2017] ACTSC 50 at [75]- [76]).

7. In addition, he has made some contribution to the community through his work in various retirement villages and he is entitled to call upon what Howie J, with whom Spigelman CJ and Wood CL agreed, described in R v Berg (2004) 41 MVR 399; [2004] NSWCCA 300 at [35] as "the bank of credit arising from his community welfare support", though it is more modest in the case of Mr Bartlett than in the case of Mr Berg.

8. On resumption of the sentencing proceedings, today, I received a comprehensive and helpful Assessment Report as I had ordered and which was based on seven interviews with Mr Bartlett, interviews with members of his family, an inspection of relevant records, and the administration of appropriate tests.

9. Mr Bartlett was compliant with the assessment, though he maintained his innocence of the offence and, indeed, had commenced an appeal against the conviction.

10. Nevertheless, he co-operated with the assessment. The relevant background information in the assessment is consistent with the subjective circumstances as I described them in R v Bartlett at [43]-[65] and I do not need to repeat them. I take them into account.

11. Mr Bartlett denied any illicit substance use and moderate alcohol consumption. Drug testing during the period of assessment did not result in the identification of any drug or alcohol use.

12. The Intensive Correction Order, if made, will impose some burdens on Mr Bartlett. That is, of course, part of the consequence of any punishment, In particular, he currently resides in a caravan at a nature reserve but will be required to reside at his sister's property where he must pay rent. The requirements under which the Intensive Correction Order is to be served will also mean that the order may impact on his ability to obtain employment. Part of his income, with which he supplements his superannuation, is derived from fruit picking outside the ACT as I noted in R v Bartlett at [47]. This may be prevented, at least initially, by the conditions of the order. While these are unfortunate consequences, they are inevitable having regard to the need for a proper sentencing response to the seriousness of the offence.

13. The Assessment Report suggested that, although Mr Bartlett was not ready to undertake treatment programs to address his criminogenic risk factors, he could be initially referred to a treatment readiness program in order to undertake the necessary programs required under such an order.

14. He was also assessed as suitable for community service work which is one of the conditions available to be made with the Order.

15. Mr Bartlett has been assessed in the Assessment Report as suitable for an Intensive Correction Order.

16. I have set out the seriousness of the offence and the subjective circumstances relating to Mr Bartlett in R v Bartlett at [4]-[42]. I do not need to set these out here, but I take them into account.

17. I have set out the relevant sentencing considerations, including sentencing practice, in R v Bartlett at [75]-[100]. I do not need to repeat what I there said, but again, I take what I said into account.

18. It seems to me that the offence was sufficiently serious, given the circumstances under which it was committed and the consequences of it, in particular, the harm suffered by the victim, that a sentence of imprisonment is appropriate.

19. Because of the matters addressed in R v Bartlett at [100], I considered that full-time custody was not inevitable and it was for this reason that I ordered the assessment for an Intensive Correction Order.

20. Under s 78(6) of the Crimes (Sentencing) Act, a court may make, or decline to make, an Intensive Correction Order despite any recommendation in the Intensive Correction Assessment.

21. In this case, as I have noted above (at [15]), Mr Bartlett was assessed as suitable for an Intensive Correction Order.

22. It seems to me that, unless further matters come to light since a court has ordered an assessment for an Intensive Correction Order, it would be inappropriate for a court, and probably unfair to the offender, for the Intensive Correction Order not to be made if the Assessment Report recommends that the offender is suitable. It would seem to me that, where an offender is recommended as suitable for an Intensive Correction Order, there would have to be an exceptional reason or a significant change in circumstances to justify not making such an order despite the Court seeking an assessment with the consequent delay to sentencing of the offender including the extensive interviewing, testing and assessing that is thereby involved.

23. The sentence that I proposed was set out in R v Bartlett at [99], namely a sentence of three years and six months imprisonment.

24. Under s 11(3) of the Crimes (Sentencing) Act, I may only make an Intensive Correction Order for a sentence of imprisonment for more than two years but not more than four years if I consider it appropriate having regard to the level of harm to the victim and the community caused by the offence, whether the offender poses a risk to other people or the community, and the offender's culpability for the offence having regard to all the circumstances.

25. The level of harm to the victim was substantial and, although any breach of the law imposes some harm to the community, I do not consider that, in these circumstances, the harm to the victim or the community renders an Intensive Correction Order inappropriate, particularly having regard to the amelioration of the significant financial impact the offence had on the victim as explained in R v Bartlett at [71].

26. I do not consider that Mr Bartlett poses a risk to any persons or to the community more generally and, while Mr Bartlett's culpability for the offence was relatively high, his subsequent actions, including some expressions of empathy for the victim, mean that I am able to find that it is not inappropriate that an Intensive Correction Order be made.

27. Accordingly, I propose to make an Intensive Correction Order.

1. I confirm the conviction for recklessly inflicting grievous bodily harm on another person on 22 May 2015.

2. For that offence, I sentence you to imprisonment for three years and six months to commence today.

3. I order that the sentence be served by intensive correction in the community in accordance with s 11 of the Crimes (Sentencing) Act 2005 (ACT).

4. I include the following additional condition, namely a community service condition that you perform 150 hours of community service work within 12 months.

29. Mr Bartlett, that order will further be explained to you, although it has probably been explained to you in the course of the assessment. What I have said is, in effect, that the offence you have been found guilty of justifies a severe sentence of imprisonment for three years and six months. However, I do not require you, at this stage, to serve any of that in full-time custody. You may serve it by an Intensive Correction Order, which is in the community but subject to supervision and direction by ACT Corrective Services. It also includes an obligation that you perform 150 hours of community service work within the next 12 months. That will be supervised by ACT Corrective Services.

30. Among the things that Corrective Services can do is make directions about where you live, programs that you must undertake, and other matters that come within the conditions of the Intensive Correction Order. If you disobey any of those conditions, then you can be placed into prison for periods of time, varying from days to weeks, or indeed the Order can be cancelled and you can be required to serve the rest of the three years and six months in prison. So the stakes are quite high in your compliance with the Intensive Correction Order for that period of three years and six months. The intensive involvement of Corrective Services will not be the same throughout the whole of that period, and supervision can be reduced over time, depending on your compliance with the orders that are made.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.