R v Bourne [2015] ACTSC 181

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - offender sentenced for assault occasioning actual bodily harm - assault pre-meditated, and threatened for some time before offence committed - offender saw assault as required to save face in motorcycle club - absence of real remorse - significance of drug use and absence of commitment to drug rehabilitation - continued membership of motorcycle club increased risk of further offending - sentencing discount for late plea of guilty after negotiations.

Crimes Act 1900 (ACT), s 24

Andrew Hutcheon v Timothy James West [2015] ACTSC 55

R v Jamie Douglas Davidson [2010] ACTSC, Nield AJ, 26 August 2010

1. Alex Bourne has pleaded guilty to one count of assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for five years.

2. The assault was committed on 16 January 2014. It is described in the agreed statement of facts generally to the following effect.

3. In about mid-2013 Mr Bourne and the victim, Mr Benjamin Jabs, began to associate. Mr Bourne was a member of the Rebels Motorcycle Club. Through him, the victim was introduced to other members of the Rebels Motorcycle Club, including Mr Michael Reece. The victim wished to become a member of the Rebels Motorcycle Club, so Mr Bourne put forward the victim as a nominee to the club. This meant that the victim would be in training to become a member of the Rebels Motorcycle Club.

4. On 2 October 2013 Mr Reece allowed the victim to borrow his black Harley Davidson motorcycle. The victim drove the motorcycle to Gungahlin shopping centre. Another car suddenly pulled out and the victim crashed the motorcycle, causing significant damage to it. The victim was told by Mr Reece that the repair for damage to the motorcycle would cost $16,000. However, the victim did not have employment and could not pay for the repair work to the motorcycle.

5. It seems that Mr Bourne felt that Benjamin Jabs had brought him into disrepute in the eyes of the Rebels Motorcycle Club. On 18 November 2013, in a phone call intercepted pursuant to a warrant, Mr Bourne said to Benjamin Jabs, "Well, you fucking crashed the bike, you fucking made me look bad to this fucking club".

6. Over the course of the months between 2 October 2013 and 16 January 2014, Mr Bourne pursued the victim for payment of the motorcycle damage. The victim did not make any repayments.

7. During that period Mr Bourne was recorded a number of times through telephone intercepts saying to other people that he was going to harm the victim. I see no need to recite the contents of all these calls, but the following extract from the 18 November 2013 call to the victim, albeit with expletives deleted, gives some of the flavour of Mr Bourne's communications:

You're lucky I don't neck all you and your whole family, bro ... I am that ropeable, I'll do the time for you tonight, I swear to God ... and the other thing that pissed me off is that you went to [another member of the Rebels Motorcycle Club] and that, thinking they're going to stop me from hurting you bro, it's not going to happen ... when I see you I'm going to kick your teeth through the back of your head and I'm going to break every limb in your body and you're going to cop it, bro.

8. On 16 January 2014 Michael Reece sent the victim a text message asking for a meeting in Gungahlin at 6.00 pm that day for the purpose of part payment for repair of the motorcycle. The victim drove to Gungahlin town centre at 6.00 pm in the company of Melvin Diack and they parked the car.

9. The victim waited for Michael Reece outside Wok It Up in the main street of the town centre. Melvin Diack remained in the victim's car.

10. Michael Reece arrived in a car with Mr Bourne. Michael Reece, Mr Bourne and the victim all met up at the front of the Elite Supplements store, across the road from Wok It Up.

11. Michael Reece told the victim that he (Mr Reece) had "lost his colours" because the motorcycle had not been repaired. The reference to colours is a reference to a vest that Rebels Motorcycle Club members wear. The reference to loss of colours is a reference to demotion or loss of membership within the Club.

12. Mr Bourne, noticing that the victim had some rosary beads, said, "Not even God can help you now." Shortly after this exchange, Rachel Jabs, the sister of the victim, her boyfriend, Jonathan Carter, and Melvin Diack arrived on the scene.

13. Mr Bourne then punched the victim to the left side of his head. The victim felt dazed by the punch and put his hands up to protect himself. Mr Bourne then walked around to the front of the victim and punched him two or three times with both fists. The victim fell over a pole and landed on his back on the ground. While he was on his back Mr Bourne continued to punch him while the victim yelled out for him to stop. The victim was punched a few more times by Mr Bourne, who then stomped on the victim's head with his right foot and left foot, striking him to the left side of his face. The force of the kicks caused the victim's head to bounce off the concrete.

14. The victim's right eye and the top left of his ear started to bleed. Mr Bourne's shoe came off. When Mr Bourne ceased stomping on the victim, Mr Reece punched him twice to the face with a clenched fist, using each hand.

15. Mr Bourne then stomped on the victim again and threw further punches. At some point, Rachel Jabs, Melvin Diack and Jonathan Carter told Mr Bourne to stop, and he stopped.

16. Mr Bourne said, "We'll come take your mum's car and her house if you don't pay ... How are you going to pay?" The victim said, "I'll ask someone. I don't know."

17. The victim was left on the side of the road. Shortly afterwards, a friend took him to hospital.

18. The Crown concedes that although both attackers are criminally liable for the assault, it cannot establish which particular blow caused the actual bodily harm that is the subject of the charge. I note, however, that the statement of facts indicates that Mr Bourne contributed most of the blows in the course of the attack.

19. Photos of the victim's injuries, some taken on the day of the assault and some taken by police when the victim reported the incident several days later, are in evidence. They show what appears to be very severe bruising around the victim's eyes and other parts of his face.

20. A report by Dr Vanita Parekh was in evidence. She did not see the victim, but reviewed the medical records some time later and provided the following information:

The victim was examined and was found to be suffering the following injuries:

1. A right subconjunctival (white of the eye) haemorrhage, with a swollen and bruised peri-orbital region;
2. Soft swelling over the right occipital area (the back of the head);

1. An undisplaced fracture of the right orbital floor, meaning that the bones had not moved from their normal placement;

1. a significant volume of gas in the soft tissues of the right cheek.

the victim was discharged from hospital that day, but was seen by a maxillofacial registrar on 20 January 2014. The registrar noted, amongst other things, that Mr Jabs was suffering diplopia (double vision) on downward gaze.

Benjamin JABS sustained an injury involving his right orbit as the result of the application of blunt force and that Benjamin Jabs may have an increased risk of :

1. Persistent diplopia (double vision);
2. Dementia in the future.

23. A couple of days after the offence, Mr Bourne, presumably in another intercepted phone call, made a number of comments expressing satisfaction about the beating he had inflicted and suggesting that the victim had "got away pretty easy".

24. At the time of the offence, Mr Bourne was on bail in respect of two charges of trafficking in cannabis in November and December 2012, for which he was sentenced by Burns J in December 2014.

25. On 27 January 2014, Mr Bourne was charged with offences arising out of this incident. Mr Reece was also charged, but died in July 2014 before he could be dealt with.

26. Mr Bourne was released on bail in 2014 after spending 32 days in custody. He has been remanded in custody since 6 March 2015 on unrelated charges, and on 13 May 2015, I remanded him in custody at the end of this sentencing hearing. This means he has been in custody in connection with this charge for 32 days plus the time since 13 May, a total of 45 days so far. In fact, I propose to give Mr Bourne credit also for the time he has so far spent on remand custody on the unrelated charges, another 69 days, noting that if he is eventually sentenced for those other charges, the sentencing court should be told that credit has already been given for the relevant pre-sentence custody. That gives a back-dating date of 1 February 2015.

27. Mr Bourne pleaded not guilty in the Magistrates Court and on 10 April 2014 was committed to this court for trial on three charges arising out of the incident. The trial was set down for 16 March 2015, but on that date he pleaded guilty before this Court to one of the three charges, and his plea was accepted in full satisfaction of the indictment.

28. As well as the statement of facts, the following material is in evidence before me, all tendered by the prosecution:

(a) Mr Bourne's criminal history;

(b) a pre-sentence report dated 8 May 2015; and

(c) a notification that Mr Bourne declined a CADAS assessment.

29. As well, oral evidence was given by a Corrective Services officer involved with supervising community service orders, by the pre-sentence report author, and by Detective Senior Constable Liam O'Mahony.

30. Counsel for Mr Bourne cross-examined the Crown witnesses but did not tender other evidence.

31. In considering the objective seriousness of the offence I have had regard to various matters, including in particular:

(a) the violence of the assault, its sustained nature and the number of blows involved;

(b) the nature and seriousness of the actual bodily harm;

(c) that the assault was committed in company and that it involved kicks to the victim's head while he was on the ground;

(d) that Mr Bourne's co offender took an active role in the assault, but does not seem to have been the lead assailant;

(e) that Mr Bourne was already on bail for other offences at the time of this offence; and

(f) that the assault on the victim was premeditated, in that it had been threatened for some months previously, and that the assault was boasted about afterwards.

32. I also note that the fact that the assault might not have taken place if the money had been provided does not reduce the significance of those threats or of the assault itself.

33. Counsel for Mr Bourne pointed to the fact that the victim had not been in hospital for very long, that he was treated only with paracetamol, and that Dr Parekh's report concluded, "most of these fractures [are] asymptomatic, do not require surgery and will heal in approximately three weeks." I note, however, that this was not the doctor's opinion about this victim's injuries, but a comment about "orbital floor blowout fractures" in general.

34. By way of general explanation, Dr Parekh also pointed out in her report that the victim had been triaged as a Category 3 patient, meaning that on arrival at hospital he had been assessed as a person with a potentially life-threatening medical condition, although I accept that the victim's discharge from hospital within only a few hours suggests that on further examination his condition was not considered to be life-threatening.

35. Defence counsel further submitted that, although the assault was unprovoked, frenzied and perhaps even vicious, the victim does not appear to have suffered permanent physical injury, although he did concede that Dr Parekh's report had referred to the victim's increased risk of developing double vision or dementia. Counsel submitted that the offence was of mid-range, or slightly above mid-range seriousness.

36. The pre-sentence report described Mr Bourne's attitude to the offence as follows:

Mr Bourne stated he agreed with the details of the Case Statement and said that he "felt sorry" for the victim. He reported feeling relieved that the incident was over and stated he would never approach the victim again. Mr Bourne advised he was a heavy drug user at the time of the offence, and drug affected at the time of the offence.

Mr Bourne claimed he is not influenced by his involvement with the motorcycle club and did not view his involvement with the club as having a negative influence on his lifestyle choices.

37. The pre-sentence report author confirmed in cross examination that, in response to a question about how he thought the victim would have felt during the assault, Mr Bourne had said, "I feel sorry for him. It's not going to happen again. I'm relieved that it's over and I'm not going to go near him again". She said that Mr Bourne did not express any regret for his actions or the injuries he had inflicted.

38. Mr Bourne's offence is, in my view, somewhat above the mid-range of seriousness.

39. I have also had regard in this sentencing to Mr Bourne's subjective circumstances.

40. Mr Bourne is now 27. His criminal history is not substantial, consisting of convictions for two traffic offences, a minor theft, and the two offences of trafficking in cannabis already mentioned. It is of concern, however, that most of his offending has taken place in the last two years.

41. The pre-sentence report describes Mr Bourne's background as follows:

Mr Bourne stated he was raised in a positive and supportive environment by his mother and stepfather. He said he is close to his mother and stepfather, who remained supportive although angry about the current offences. A discussion with Mr Bourne's stepfather confirmed this information. He stated they are supportive, however disagree with Mr Bourne's lifestyle choices and want no association with his criminal behaviour.

Mr Bourne advised he had been in a relationship for four months [but] his partner had not visited him whilst he had been in custody.

Mr Bourne advised that prior to this period of custody he resided in a rental property by himself. He said he planned to live in his mother's home for a short period upon his release and then hoped to move out independently again. Mr Bourne's family advised that Mr Bourne would not be welcome to stay in their home overnight due to previous experiences with police contact and his current lifestyle choices.

Mr Bourne advised he completed Year 10 before choosing to cease his education.

He stated he had been employed throughout most of his adult life in various labouring positions and also reported working in administration for a period of three years for a local educational institution.

Most recently Mr Bourne stated he was employed for a period of 12 months as a labourer. He stated he was unemployed for five months prior to this period of incarceration.

Mr Bourne advised he did not have any outstanding debt and stated while unemployed he lived on savings made from previous jobs.

It is noted that Mr Bourne stated he was not in receipt of a Centrelink Benefit, and was unemployed for a period of five months prior to this period of incarceration.

Mr Bourne reported he had been a member of an outlaw motorcycle club for approximately five years. He reported to be a highly ranked member and advised during the preparation of this report that he views the members of this club as part of his family, and had no plans to cease his allegiance to them.

Mr Bourne said he first consumed alcohol at 14 years of age. He said he drank socially, approximately twice per month, until his mid twenties. Mr Bourne stated for the three years prior to the period of custody in early 2014, he would consume alcohol to intoxication every weekend with friends. He reported using cannabis daily from the age of 14 years until he was 17 years of age. He said his use decreased slowly, claiming to have ceased this use by the age of 21 years. He reported using cocaine daily from the age of 21 years, stating his habit cost him $1000 per day, until his incarceration in January 2014.

Mr Bourne said he had not used any illicit drugs or alcohol since his release from custody on 27 February 2014.

42. Mr Bourne's claims of abstinence from illicit drugs appear to be borne out by recent urinalysis showing only benzodiazepines that had been prescribed for him.

43. As already mentioned, Mr Bourne told the pre-sentence report author that he was drug-affected at the time of the offence. Given, however, that the offence was not a spur of the moment outburst but something that had been threatened for some time, this does not in my view have any particular significance in mitigating or, in the absence of more specific evidence, in aggravating the offence.

44. The pre-sentence report sets out the author's opinion that:

Mr Bourne appeared to accept responsibility for the offences and demonstrated some understanding of the effect his actions would have had on the victim. He appeared focused on changing his criminal behaviour, however his denial that his associates and lifestyle choices have contributed to his behaviour remain a concern for this Service.

Mr Bourne disclosed a long history of drug and alcohol use and although claimed no use since March 2014, he may benefit from some ongoing counselling to prevent relapse.

45. The pre-sentence report author gave oral evidence about the reference in the pre-sentence report to Mr Bourne's failure to perform a community service order. She explained that he had eventually, after missing two such sessions, attended a two-hour community service induction session. However, he was then remanded in custody several days before the day on which he was to start his actual community service, and has had no further opportunity to undertake any community service.

46. There is some uncertainty in the evidence before me about Mr Bourne's employment history. Detective Senior Constable O'Mahony gave evidence that he had checked with one of the people nominated by Mr Bourne as a former employer. That person, who had Rebels associates while not being a member of the Rebels Club himself, had indicated that Mr Bourne had only worked there for a couple of shifts, and that he was considered unreliable because he did not turn up for rostered shifts.

47. More significantly, there is little material before me that indicates any solid basis from which Mr Bourne can pursue his expressed wishes to change his behaviour and never to return to jail.

48. Counsel for Mr Bourne submitted that although he did not appear to be remorseful in the early period after the offence, his comments that he felt sorry for the victim, that what he did was wrong and that it would not happen again, and that he had accepted responsibility by pleading guilty, could be taken as evidence of remorse. However, in my view Mr Bourne has carefully avoided expressing regret or remorse for what he actually did, and although his plea of guilty must be recognised, I am not convinced that it reflects anything more than a realisation that the matter needed to be resolved and, in the circumstances, was not likely to be resolved otherwise than by his conviction and punishment.

49. Counsel also submitted, noting the pre-sentence report assessment of Mr Bourne as at moderate risk of re-offending, that Mr Bourne's recent negative drug tests, and the fact that he had eventually begun the process of performing the community service orders in an earlier sentencing, gave some hope for his prospects of rehabilitation. I should mention, however, that since I am not convinced about the significance of Mr Bourne's drug use in his commission of this offence, his recent negative urine tests, while commendable, do not in my view have any major significance in relation to the risk of him re-offending in similar ways in future; for the same reason, however, I do not for present purposes place great weight on the facts that Mr Bourne has not expressed any interest in drug rehabilitation programs, and that while in the AMC he has twice declined to attend the Smart Recovery Program sessions.

50. Putting aside the issue of drug use, I note that Mr Bourne's accommodation and employment prospects do not seem particularly bright, and his determination to remain involved with the Rebels is a matter of concern.

51. I accept the submissions of Mr Bourne's counsel that membership of a motorcycle club is not an offence in the ACT. On the other hand, it seems that it was Mr Bourne's membership of the Rebels, and the expectations attached to club membership, that made him feel a need to save face in the Club by committing a serious assault on a person with whom he was, presumably, at an earlier point on good terms. For this reason, Mr Bourne's refusal to contemplate distancing himself from the Club must cast a shadow over his prospects of avoiding re-offending of this kind in the future.

52. The prosecutor submitted that Mr Bourne had engaged in a sustained and pre-meditated assault, and that his apparent general disinclination to address the matters that put him at risk of further offending meant that I should place little reliance on his planned rehabilitation.

53. There is no doubt that people need to be deterred from assaults of this kind, and especially from seeking to resolve their financial disputes in such ways. While noting Mr Bourne's current disinclination to return to prison in the future, I consider he still needs personal deterrence.

54. I have already noted that Mr Bourne entered a late guilty plea, but did so after some negotiation as to the charges. Although counsel for Mr Bourne suggested that he was entitled to a discount of around 5% for that plea of guilty, it seems to me that a discount of around 10% is available, having regard to the negotiations and to the fact that even on the day of the trial Mr Bourne's plea had real utilitarian value.

55. Counsel for Mr Bourne drew my attention to four other sentencing decisions that he considered might be helpful:

(a) R v Matthew Delander [2010] ACTSC, Penfold J, 21 September 2010: Mr Delander had pleaded guilty to a serious assault occasioning actual bodily harm that required more invasive treatment of the victim than the assault in this case. He had had a somewhat troubled childhood and adolescence, which included family breakdown, illicit drug and alcohol abuse, and the failure of several previous relationships. The assault concerned was committed in the heat of the moment and in response to what Mr Delander believed was inappropriate behaviour to his girlfriend by the victim. Mr Delander had expressed genuine remorse and, since the assault, had rehabilitated himself, including by having obtained significant work in the occupational health and safety area in Queensland in relation to which his employer had given him a very favourable reference. I sentenced Mr Delander to six months imprisonment, reduced from eight months for his plea of guilty, fully suspended.

(b) R v Donal Brian Murray [2012] ACTSC, Higgins CJ, 26 March 2012: Mr Murray had committed an assault occasioning actual bodily harm constituted by a single punch which, however, caused significant facial injury requiring ongoing medical treatment for the victim. Mr Murray had what was accepted by the sentencing judge as a genuine grievance against the victim, although not such as to justify the assault. Mr Murray was also sentenced to six months imprisonment fully suspended; I note that the sentencing judge in that case had provided a total discount of six months (presumably therefore from a starting sentence of 12 months) in respect of different aspects of the plea of guilty.

(c) Andrew Hutcheon v Timothy James West [2015] ACTSC 55: The Crown had appealed against a sentence imposed in the Magistrates Court for assault occasioning actual bodily harm of 10 months imprisonment, seven months to be served concurrently with another sentence imposed in the same proceedings. The Crown appeal was upheld and the 10-month sentence was replaced with a sentence of 20 months imprisonment (reduced from 24 months for the plea of guilty). The assault had been a sustained assault of Mr West's domestic partner carried out while the victim's four-year-old son was in the house. Mr West had what was described on appeal as "an extremely extensive criminal history" involving about 80 criminal offences over 20 years.

(d) R v Jamie Douglas Davidson [2010] ACTSC, Nield AJ, 26 August 2010: Mr Davidson, a relatively young and fit man, had assaulted an older and unfit man while both were greatly affected by alcohol. The victim sustained injuries not unlike those found in the current case, although possibly slightly more serious, but in a much briefer encounter, albeit involving four punches where the sentencing judge said, curiously, that "three of the punches were unnecessary". Mr Davidson had substantially rehabilitated himself over the four years that had passed between the offending and the sentencing, and the sentencing judge was reluctant to interfere with that rehabilitation by sending him to full-time custody. Instead, Mr Davidson was sentenced to 12 months imprisonment, reduced from 15 months and fully suspended.

56. The prosecutor commented on all those cases, and also referred to R v JS [2013] ACTSC, Nield AJ, 24 July 2013. JS was 18 years old when he punched his victim once, causing a fracture apparently in the sinus area which did not require surgical repair. Other associates then joined in and inflicted further injuries. JS entered a late guilty plea, but had demonstrated remorse. The sentencing judge was doubtful about his prospects of rehabilitation and sentenced him to 10 months imprisonment, reduced from 12 months, the first seven months to be served as periodic detention and the rest to be suspended.

57. I take from these various other sentences that an available sentence for an assault causing actual bodily harm of the current order of seriousness ranges at least from 6 months to 20 months imprisonment on a plea of guilty, and that the circumstances of the offence, including whether it was committed in the heat of the moment or otherwise, whether it was sustained, and any rehabilitation achieved by the offender, are likely to be significant in the sentencing process.

58. In particular, those issues all seemed to be relevant to whether any full-time or part-time custody was immediately required.

59. Mr Bourne, please stand. I record a conviction on the charge of assault occasioning actual bodily harm.

60. I now sentence you to imprisonment for 14 months, reduced from 16 months for your plea of guilty, and backdated, for reasons already explained, to 1 February 2015. Noting that you are currently remanded in custody in relation to other offences, I propose not to complicate matters by setting a suspension date for this sentence, and instead I set a non-parole period of seven months from 1 February 2015.

61. The effect of the backdating and the non-parole period is that you will be eligible for parole, at the earliest, in just over three months, namely, 31 August this year. However, if it seems that you are likely to remain in custody beyond that date on other matters, then you will presumably continue to serve this sentence beyond the end of the non-parole period I have set, until either this sentence is completed or you are able to be released on parole.

62. Please ask Mr Thomas if you have any particular questions about how this sentence will operate, having regard to your other current matters.

63. Mr Bourne, I am not going to tell you to give up your Rebels membership. That is a decision for you. Burns J has already made it clear to you that maintaining your Rebels links is a risk, and I have already indicated that, having regard to this offending, your attitude to club membership and to what is apparently necessary for you to retain your status in the club puts you at real risk of offending in the future, and therefore at real risk of further terms of imprisonment. That is something you need to think about in the next few months.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.