CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - assault occasioning actual bodily - causing grievous bodily harm - common assault - domestic violence - please of guilty - remorse - hardship to family - no pre-sentence report available

Crimes Act 1900 (ACT) ss 24, 25, 26

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 34

Supreme Court Act 1933 (ACT) s 63E

Alvares v R; Farache v R [2011] NSWCCA 33;

Butters v R [2010] NSWCCA 1

Fusimaolhi v The Queen [2012] ACTCA 49

Hili v The Queen [2010] HCA 45; 242 CLR 520

Imbornone v R [2017] NSWCCA 144

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Monfries v The Queen [2014] ACTCA 6

Muldrock v The Queen [2011] HCA 39; 244 CLR 120

Mun v R [2015] NSWCCA 234

R v Edigarov [2001] NSWCCA 426

R v HC [2018] ACTSC 49

R v Keyes [2016] ACTSC 387

R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566

R v Meyboom [2012] ACTCA 48

R v MMK [2006] NSWCCA 272; 164 A Crim R 481

R v Mumberson [2011] NSWCCA 54

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Xiao v R [2018] NSWCCA 4

Zdravkovic v The Queen [2016] ACTCA 53

1. On 20 August 2018, Samuel Baxendale (the offender) pleaded guilty to two offences. First, an offence of assault occasioning actual bodily harm contrary to section s 24 of the Crimes Act 1900 (ACT) (Crimes Act), which carries a maximum penalty of five years imprisonment. Second, an offence of causing grievous bodily harm contrary to s 25 of the Crimes Act, which also carries a maximum penalty of five years imprisonment.

2. In addition to these offences, the offender comes before me for sentencing in relation to four charges transferred to the Supreme Court from the Magistrates Court pursuant to s 68E of the Supreme Court Act 1933 (ACT). These charges were four charges of common assault contrary to s 26 of the Crimes Act, an offence which carries a maximum penalty of two years imprisonment.

3. The agreed facts are set out in the Statement of Facts, which forms part of Exhibit 1, being the Crown Tender Bundle. The facts in summary follow.

4. The offender lived with the victim at an address in Ngunnawal. The offender and the victim were in an intimate relationship. Their relationship was characterised by heated arguments. In August 2017, following one such argument, the victim was charged with damaging the offender's property and assaulting the offender. On 2 August 2017, the victim was placed on bail with a condition not to consume alcohol.

5. On Friday 29 September 2017, the offender and the victim decided to go out for dinner. During the course of the night both consumed alcohol. They returned home together in the early hours of Saturday 30 September 2017. An argument ensued and the offender pushed the victim into a glass cabinet, causing glass to break and the victim to sustain a deep laceration to her right hand. The offender then picked up a portable plastic speaker and struck the victim in the head with it.

6. The offender called police to report the victim being intoxicated and in breach of her bail. At 4:25am, police attended and observed the victim nursing a deep wound on her hand. Police also observed a speaker on the floor amongst broken glass. There were signs of a disturbance with items strewn across the floor and blood smears throughout the residence. The victim told police the offender had hit her across the back of the head with a speaker. Police also spoke with the offender who stated the victim had "gone crazy and smashed the place up". He also stated that he was not and never had been in a sexual relationship with the victim and they had never dated.

7. Ambulance officers attended and conveyed the victim to hospital as her wound required stitches. Police left the victim in the care of hospital staff and some hours after admission, at 7:15am, she self-discharged before having her injury attended to. The victim returned home to clean up and go to bed. The offender returned home later that day and the couple reconciled.

8. On Sunday 1 October 2017, the victim woke up and went downstairs. The offender told her he was leaving and would not be returning. Once he left, the victim locked the house and went back to bed. She later awoke to see the offender standing at the bedroom door shouting at her. The offender grabbed a plastic jewellery box and threw it at the victim's head. He then pulled the victim's hair and dragged her down the stairs.

9. At the bottom of the stairs he flipped the victim on to her back, causing her leg to become caught. The offender then threw his weight on top of the victim, causing a snapping sound and great pain to the victim. The victim screamed for the offender to get off her but he refused.

10. The offender then stood up and pulled the victim up by her hair and ordered her to clean the house. He tipped vodka over her and tried to force her to drink some of the vodka. He then went into the garage to bring the bins inside and began to clean the house. While the offender was cleaning, the victim crawled out the door and through the apartment complex to a male neighbour's house. She was unable to walk.

11. The neighbour called the police who attended shortly afterwards. The victim disclosed to the neighbour and to attending police that the offender had thrown an object at her head, then dragged her downstairs by the hair and sat on her causing her leg to snap. The victim was taken by ambulance to hospital at around 4:00pm. Police attended the address and spoke to the offender, who told them the victim had damaged some of his property and then had fallen down the stairs, after which he saw her get up and walk out of the house with a limp.

12. At the hospital, the victim was observed to be unable to bear her own weight on her right ankle. Following an X-ray she was diagnosed with a fracture to the right ankle. Her leg was set in a CAM boot and she was discharged with crutches into the care of her mother.

13. After discharge on 1 October 2017, the victim returned to the offender's address with her mother to collect her belongings. The offender called the police at 10:40pm and police attended shortly afterwards. The victim was seen to be intoxicated and was arrested for a breach of bail.

14. The victim spent the following 10 days in custody. During this time she was taken back to the hospital where she received surgery to repair her ankle, involving a screw and a plate being inserted into her leg.

15. The offender continued to contact the victim during this time. On 7 October 2017, the offender sent an email to the victim entitled, "Please please read", in which he stated, "i am so sorry babe. i didn't realize I had hurt your foot, we were fighting an it got out of hand. id never mean to hurt you like that, and i will never ever forgive myself for it" [sic].

16. Following the victim's release from custody, the couple reconciled. The victim was still subject to bail conditions.

17. Between 25 December 2017 and 5 January 2018, in the midst of an argument with the offender, the victim distanced herself by going into a spare bedroom at the couple's residence and closing the door. She was standing behind the closed door with her back to the door to keep it closed, when the offender forced the door open with such force that the victim was forced forwards into the wall, causing a large hole in the plasterboard. The victim did not disclose this to police until 7 January 2018.

18. In early January 2018, a breach of bail action was submitted by ACT Corrective Services and the victim was again arrested on 7 January 2018. While at the Watch House she was examined by a nurse who observed her to have multiple injuries on her body. In the presence of the nurse and a female police officer, the victim began to disclose her history of abuse at the hands of the offender. The nurse and police officer observed her to be very frightened and hypervigilant. The victim stated that she loved the offender and was fearful of being blamed for fighting back. She also expressed concern that he would lose his job and custody of his child if she made a report. The victim agreed to participate in a Family Violence Evidence in Chief Interview (FVEIC), but later became upset and fearful, and refused to make a statement.

19. On Saturday 14 January 2018, the victim and the offender went to the cinema to celebrate the offender's birthday, where both parties consumed alcohol. Upon returning home later in the evening, an argument ensued over cigarettes. Around midnight on Sunday 15 January 2018, the victim left in a taxi to purchase cigarettes. She told the taxi driver that she did not want to return home and that she felt the offender would harm her. The taxi driver offered to take her to the police station but the victim became more concerned and agreed to return home. The taxi driver dropped the victim home and observed a heated argument between the victim and the offender in which he saw that the victim looked very frightened. After the taxi left, the offender began grabbing at the victim for the cigarettes that she had secreted in her clothes. During the scuffle, the offender pulled out an amount of the victim's hair and the victim sustained a number of small scratches and bruises. Shortly afterwards, the victim took photographs of her hair on the floor and of a bruise on her arm that she sustained from the assault. The victim slept on a sofa and the following morning the offender took a photograph of her sleeping, with scratches on her wrist. The offender sent the photograph in a text message to the victim, blaming her for what happened.

20. In the evening of 15 January 2018, the offender and the victim were at home. The offender was intoxicated and became highly aggressive towards the next door neighbour's dogs, making threats to harm them. The female neighbour contacted police who attended at around 9:45pm and spoke with the offender. Police left shortly afterwards and the offender immediately went to the neighbour's front door and began banging on it. Police were contacted again and returned at around 10:20pm and arrested the offender. The offender was taken to the ACT Police Station.

21. Police attended the Ngunnawal address shared by the offender and the victim and spoke with the victim. The victim agreed to participate in a recorded FVEIC, during which she disclosed the history of violence from the offender.

22. Following the victim participating in the FVEIC, the offender was charged with family violence offences and was remanded in custody.

23. For the offence of assault occasioning actual bodily harm, committed on 30 September 2017, counsel for the offender submitted that the offence was of mid-range objective seriousness. Counsel for the offender submitted that the offence involved a cut to the victim's hand that required stitches. The prosecution submitted that it was "slightly above" mid-range, stating that it was "somewhere between the mid and upper range". The prosecution submitted that the offence was not too far short of grievous bodily harm, and that "had it been any deeper or more significant, it invariably would have given rise to a scar". The prosecution further submitted that I should have regard to the context of the offence, including the domestic violence context, and the fact that the offender called the police blaming the victim for damage caused to the house. These were matters that the prosecution submitted increased the objective seriousness of the offence. I find the offence to be above mid-range taking into account the circumstances of the offence including the injury and the domestic violence context. The subsequent call to police is a matter that is relevant to sentence but not relevant to the objective seriousness of the offence itself: see Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566; Muldrock v The Queen [2011] HCA 39; 244 CLR 120, as to the distinction between an aggravating matter on sentence and the objective seriousness of the offence itself.

24. In relation to the offence of causing grievous bodily harm by a negligent act or omission, committed on 1 October 2017, counsel for the offender submitted that the offence was of low-range objective seriousness. Counsel for the offender submitted that the injury was a broken ankle which required surgery, but that there was no permanent disability and the injury was not life-threatening. The prosecution submitted that the offence was of low to mid-range objective seriousness. The prosecution conceded that the injury was at the lower end of the spectrum of injuries that can constitute grievous bodily harm, but that the aggravating factor of domestic violence increased the objective seriousness. I find the offence to be below mid-range, as the prosecution conceded that the injury was at the lower end of the spectrum of injuries constituting grievous bodily harm. I have also taken into account the domestic violence context in coming to this conclusion.

25. In relation to all four common assault offences, counsel for the offender submitted mid-range objective seriousness. In respect of the common assault charge of CC 2018/2374 involving dragging the victim down the stairs by the hair, committed on 1 October 2017, the prosecution submitted that the offence was at the "upper end of the spectrum" objective seriousness. The prosecution submitted that dragging a female down the stairs by her hair is "a particularly serious form of offending", that it was "very degrading", and that it "shows complete exercise of power and dominance over her". The prosecution further submitted that context of the offence, being just hours after she had been released from hospital due to injuries the offender had caused, further increased the objective seriousness.

26. With respect to the charge CC 2018/2377, committed on 1 October 2017, which involved pulling the victim up by the hair, tipping vodka over her and trying to force her to drink vodka, the prosecution submitted that the offence was of mid-range objective seriousness. With respect to charge CC2018/5691, committed sometime between 25 December 2017 and 5 January 2018, which involved forcing a door open against the victim and knocking her into a plasterboard wall causing a hole, the prosecution submitted that the offence was of mid to upper-range objective seriousness. The prosecutions submitted that it involved a "significant exercise of force over a female in order for that type of damage to the wall" to occur. With respect to charge CC 1362/2018, committed on 14 January 2018, where the offender pulled out some of the victim's hair, the prosecution submitted mid-range objective seriousness, tending towards the upper range. The prosecution submitted that pulling out a quantity of a female's hair involves "a gross display of power and dominance over her".

27. I find that each of the common assault charges is of mid-range objective seriousness. However it must be stated that references to low range, middle range and high range objective seriousness are unlikely to be helpful in this jurisdiction. As has previously been expressed in this jurisdiction, it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of the case: see R v Toumo'ua [2017] ACTCA 9 (Toumo'ua).

28. The offender is 31 years of age. He pleaded guilty on 20 August 2018 at callover. There was no pre-sentence report sought or ordered.

29. A number of character references and other documentary material was in evidence before me. The offender wrote a letter to the Court expressing his remorse and indicating that the last several months in jail have been a wake-up call, and that he understands that he needs to address his drinking and anger management issues. On being released from jail, he proposes to stay with his mother, look after his daughter, and return to work. He also expresses concern that he has not been able to access dental treatment whilst in jail.

30. Second is a character reference from a family friend who has observed the offender to be a caring father to his daughter. She expresses the view that the offences are out of character, and that the offender has expressed his remorse to her.

31. Third is a letter from a neighbour and family friend expressing the hope that the offender's "current difficulties, about which I know very little, can be resolved and be a platform for learning and growth".

32. Fourth is a letter from the mother of the offender's daughter, indicating that the offender's incarceration has meant that she no longer receives child support payments, that she is caring for their daughter 100% of the time rather than 60% of the time, and, as a result of these matters, that she is to become homeless. She indicates that she may have to move back to New South Wales, but that she does not want to disrupt her daughter's schooling in Canberra. She also notes that her daughter's mental health has suffered since her father's incarceration.

33. Fifth is a certificate of achievement presented to the offender in recognition of his completion of the "First Steps to Anger Management Program".

35. As discussed above at [29], the offender wrote a letter to the court expressing remorse.

36. The prosecution submitted that the letter should be given "little, if any, weight". The prosecution relied on Imbornone v R [2017] NSWCCA 144 (Imbornone), and submitted the following:

The defendant, if he wants his expression of remorse to be taken seriously, needs to get in the witness box and be subject to crossexamination. Imbornone and the cases that it has followed make it very clear that courts should be very sceptical of untested selfserving statements made by accused in sentencing proceedings and documents like this.

37. The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ; Alvares v R; Farache v R [2011] NSWCCA 33 at [44]; Mun v R [2015] NSWCCA 234 at [36]; R v Mumberson [2011] NSWCCA 54 at [38]. Accordingly I cannot ascribe significant weight to the remorse expressed in the letter. I also note s 34(c) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) in relation to it being an irrelevant consideration on sentence that the offender does not give evidence on oath.

38. Counsel for the offender submitted that hardship to the offender's family was a mitigating factor. The prosecution submitted that in accordance with the authorities, the circumstances must be exceptional to be a mitigating factor. In this case, I do not find that the circumstances are exceptional in accordance with the stricture of the authorities on this topic, and therefore deal with this as part of the subjective matters: see s 33(1)(o) of the Sentencing Act.

39. The offender has a criminal history from Victoria in 2005, involving three summary offences: criminal damage, possession with intent to damage property, and stating a false name when requested. These offences attracted fines of $200 and a forfeiture order in relation to the possession charge. Importantly, there are no previous offences of domestic violence or of any personal violence offences generally.

40. As indicated above, the offender was arraigned in respect of the Supreme Court offences on 20 August 2018 and entered pleas of guilty on this date. The matters had been committed for trial and were listed for callover on the date that the offender ultimately entered pleas of guilty.

41. Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo'ua at [41]-[48]; see also Xiao v R [2018] NSWCCA 4 in relation to the utilitarian value of pleas of guilty in Commonwealth matters.

42. Monfries v The Queen [2014] ACTCA 6 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo'ua at [50].

43. Counsel for the offender submitted that a discount of 15% should be applied for the plea of guilty, submitting that the plea came before the matter was listed for trial. The prosecution did not make submissions on this issue.

44. I will allow discount of about 15% for the early plea of guilty in the circumstances of this case.

45. The offender was arrested for these offences on 15 January 2018 and has remained in custody since that date. As at today's date (14 September 2018), the offender has served 8 months in custody solely referable to these offences.

46. Counsel for the offender referred to one case, being R v Keyes [2016] ACTSC 387 (Keyes). This matter involved a single offence of grievous bodily harm which occurred outside a pub on the day of the Melbourne Cup. The offender, Mr Keyes, and victim, Mr Raftery, previously unknown to one another, became engaged in an altercation, during which the offender pushed and hit the victim, making contact with the victim's jaw and causing him to fall to the pavement. In the course of the fall, but by a mechanism not identified in evidence, the victim sustained a fracture to his ankle. Refshauge J noted at [16] that "there was no suggestion that Mr Keyes had made contact with Mr Raftery's ankle by kicking him or otherwise". The offender, who had no prior criminal history and was regarded as being of otherwise good character, was sentenced to a two year good behaviour order, including supervision and a requirement to perform 80 hours of community service work.

47. The prosecution submitted that the factual matrix of Keyes bears no resemblance to the case of the offender presently before me for sentence. In particular, the prosecution noted that Keyes involved only one charge, that it did not occur in a domestic violence context, and was an isolated incident of violence.

48. In my view, the decision of Keyes is not of assistance as a yardstick in the manner referred to in Hili v The Queen [2010] HCA 45; 242 CLR 520.

49. The prosecution did not refer to any comparable cases, and submitted the following:

The problem with the common assault cases is given they're dealt with summarily, reasons are not given. I could only give your Honour bare statistics, and those statistics are not going to capture whether those offences occurred in a domestic violence context and the nature of the assault. That would be quite unhelpful to your Honour in my submission.

50. The prosecution did not make any submissions in response to the submission made by counsel for the offender that the time served was an appropriate period of full-time custody in relation to the offences.

51. In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above. Additionally, I note s 33(1)(c) of the Sentencing Act and that this offending is a part of a series of similar behaviour.

52. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. Rehabilitation is also an important consideration.

53. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison.

54. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

55. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic).

56. The real question is whether the total sentence is "just and appropriate" to reflect the total criminality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].

57. It is well to recall what was stated in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63:

The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong.

58. I must evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, determine what, if any, downward adjustment is necessary whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relationship between the totality of the criminality and the totality of the sentences: see R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [12].

59. In R v Edigarov [2001] NSWCCA 426, the Court stated the following at [41]:

...violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.

60. In R v HC [2018] ACTSC 49, Elkaim J stated the following at [3] in relation to domestic violence offences:

These types of offences are appalling. Actions of violence against a partner or family member must be condemned. Any person who commits these offences should expect to be sentenced to a period of full-time custody.

61. It must be recognized by the Court that the offences have had a significant impact upon the victim. Both the short and long term consequences of being the victim of domestic violence must be acknowledged. Domestic violence is unacceptable in our community. It must also be recognized that no sentence that the court imposes can rectify the consequences of what has occurred to the victim in the commission of the offences by the offender.

62. Both parties accept that the offender must receive a sentence of imprisonment. In my view, a custodial sentence is appropriate. The issue is the length of the sentence.

63. I have taken into account the offender's pleas of guilty and have reduced the sentences that I would otherwise have imposed by approximately 15%.

64. Because this will be the offender's first custodial sentence, a short period of imprisonment prior to suspension is appropriate. In the present case I consider a short period of imprisonment of 8 months prior to suspension is called for. This will reflect the gravity of the offending conduct to the offender and indicate to him what he faces if he fails to be of good behavior during the period of his Good Behavior Order.

65. In relation to the offence of assault occasioning actual bodily harm, as this offence is the first in time, it is appropriate that I deal with it by way of Good Behaviour Order for 36 months.

66. In relation to the offence of causing grievous bodily harm, the starting point is 29 months imprisonment, reduced to 24 months imprisonment on account of the plea of guilty.

67. In relation to the common assault offences, the starting point is 14 months of imprisonment, reduced to 12 months on account of the plea of guilty.

68. Along with the imposition of the punishment of full time custody, rehabilitation should be encouraged by the Court. The sentence will therefore include supervision and a condition in relation to programs and counselling with regard to alcohol abuse and domestic violence.

(a) In respect of the offence of assault occasioning actual bodily harm (CC2018/2372), the offender is sentenced to a Good Behaviour Order for 36 months, commencing on 14 September 2018. I impose the core conditions.

(b) In respect of the offence of causing grievous bodily harm (XO2018/31411), the offender is sentenced to 24 months of imprisonment, commencing on 15 January 2018 and ending on 14 January 2020.

(c) In respect of the offence of common assault (2018/2374), the offender is sentenced to 12 months of imprisonment, commencing on 15 October 2019 and ending on 14 October 2020.

(d) In respect of the offence of common assault (2018/2377), the offender is sentenced to 12 months of imprisonment, commencing on 15 October 2019 and ending on 14 October 2020.

(e) In respect of the offence of common assault (2018/5691), the offender is sentenced to 12 months of imprisonment, commencing on 15 January 2020 and ending on 14 January 2021.

(f) In respect of the offence of common assault (2018/1362), the offender is sentenced to 12 months of imprisonment, commencing on 15 January 2020 and ending on 14 January 2021.

(g) Each sentence will be suspended after he has served a period of 8 months imprisonment from 15 January 2018 until 14 September 2018, upon him entering into a Good Behaviour Order for a period of three years subject to the following conditions:

• (i) A condition that he be subject to supervision by the DirectorGeneral for a period of three years (or such shorter period as the DirectorGeneral determines) and obey all reasonable directions of the DirectorGeneral.
• (ii) A condition that he attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed by the DirectorGeneral, particularly with regard to alcohol abuse and domestic violence.

I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson