R v Byrne [2015] ACTSC 113

Supreme Court of the ACT|2015-05-08|Before: Refshauge J

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

**1. Daniel Byrne be convicted of causing grievous bodily harm to Timothy Gerald McCarthy by an unlawful act on 24 July 2011;

2. Daniel Byrne be sentenced to twelve months imprisonment to commence on 8 September 2014;

3. The sentence be suspended on 8 May 2015 for a period of twelve months;

4. Daniel Byrne be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with a probation condition that he accept supervision of the Director-General or her delegate for a period of two years, or such lesser period as the person supervising him deems appropriate, and that he obey all reasonable directions of the person supervising him.**

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Sentencing - Offences against the person -Causing grievous bodily harm by an unlawful act - Major, life-threatening injuries - Offending whilst on Conditional Liberty - Good prospects of rehabilitation

Byrne v The Queen [2014] ACTCA 31

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

R v Bloomfield (1998) 44 NSWLR 734

R v Byrne [2013] ACTSC 246

R v Byrne (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, SCC 345 of 2011).

R v Charnock (Unreported, Australian Capital Territory Supreme Court, Nield AJ, SCC 334 of 2011, 4 September 2012)

R v Obradovic (Unreported, Australian Capital Territory Supreme Court, Burns J, SCC 148 of 2013, 23 December 2013),

R v Srikandakumar (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, SCC 113 of 2013, 8 April 2014),

R v Tuala [2015] NSWCCA 8

**1. On 23 July 2011, Daniel Byrne, the accused, punched Timothy Gerald McCarthy, the victim, outside the convenience store called "Quick and Go" at the corner of London Circuit and Northbourne Avenue in Civic. Mr Byrne punched Mr McCarthy in the head and then quickly left the scene. Mr McCarthy fell to the ground and hit his head.

2. Subsequently, police arrested Mr Byrne and he was charged with intentionally inflicting grievous bodily harm on Mr McCarthy.

3. In circumstances with which I will deal below, he was convicted of that offence and sentenced to imprisonment for three years and six months to be served partly by full-time custody, partly by periodic detention, then the sentence was suspended and, as required under s 12(3) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the Court made a good behaviour order.

4. Mr Byrne appealed against the conviction and sentence and, on 11 August 2014, the conviction was set aside. On 15 August 2014, the Court of Appeal ordered that there be a new trial.

5. On 25 February 2015, the Crown presented a new indictment charging Mr Byrne with recklessly inflicting grievous bodily harm on Mr McCarthy and, in the alternative, with, by an unlawful act, causing grievous bodily harm to Mr McCarthy.

6. On 2 March 2015, Mr Byrne pleaded guilty to the second count, the alternative count, on the indictment. This was accepted in full satisfaction of the indictment. No doubt, a Notice Declining to Proceed with the remaining count on the indictment will be filed in due course: R v DF (No 2) (2012) 6 ACTLR 105.

7. Causing grievous bodily harm by an unlawful act is an offence against s 25 of the Crimes Act 1900 (ACT) which provided, at the relevant time, for a maximum penalty of two years imprisonment. That penalty was, at the time, the same maximum penalty provided for the offence of common assault.

8. A Statement of Facts was tendered without objection. From this, and the submissions of counsel, I make the following findings.

9. Early on Sunday 24 July 2011, Mr Byrne was standing with a number of males outside the "Quick and Go" convenience store referred to above (at [1]).

10. Mr McCarthy, who had been out that night with a friend having a few drinks at a pub in Civic, approached Mr Byrne and the other males. He did not know any of them.

11. He made a comment about an upcoming game of football between Ireland and Australia and, at one point, hugged one of the males who was standing with Mr Byrne. Mr Byrne softly slapped him on the right side of the head but Mr McCarthy ignored him. Mr Byrne then slapped him a second time and Mr McCarthy turned round, approached Mr Byrne and hugged him with his left arm. Mr Byrne took a step away and then struck Mr McCarthy in the head with his right elbow or fist. Mr McCarthy immediately fell to the ground, unconscious. As he fell, his head bounced off the ground and hit the ground again.

12. Security guards, alerted by the sound of Mr McCarthy falling and hitting the ground, saw Mr Byrne walk away and recognised him. A closed circuit television camera (CCTV) captured the entire incident and I had the opportunity of seeing what was shown of the incident on the footage from the CCTV. It showed an apparently unprovoked and forceful punch by Mr Byrne to Mr McCarthy who fell straight to the ground.

13. The police were called and later saw Mr Byrne, but he ran from them and they lost sight of him.

14. The next evening, police executed a search warrant at Mr Byrne's home and seized some items. It appears he was also then arrested.

15. The injuries suffered by Mr McCarthy were described in the Statement of Facts, from which I make the following findings.

16. Mr McCarthy was admitted to Canberra Hospital where his Glasgow Coma Score, an objective measure of consciousness, was between five and seven, near to the unconscious state of three on that score and well below the score of 15 for someone who is fully conscious.

17. Mr McCarthy was intubated, paralysed and ventilated. An urgent cerebral CT scan was performed which revealed the following injuries:

• bilateral acute subdural haematoma measuring approximately 4mm in depth;

• traumatic subarachnoid blood which was present within his left insular, left frontal lobe and bilateral temporal lobe sulci;

• focal parenchymal contusions present at the anterior pole of his left frontal lobe and within his left anterior temporal lobe;

• a possible calvarial linear fracture in the region of his right coronal suture, extending down to his right squamous temple bone through to his right lambdoid suture;

18. Urgent decompressive surgery was performed by a neurosurgeon and Mr McCarthy subsequently underwent a number of further surgical procedures including the removal of part of his skull to reduce the pressure on his brain and to allow for the swelling to reduce. At one point, Mr McCarthy was on life support and was in intensive care for a number of days. He remained unconscious and on a ventilator for eight days after the first surgery was performed and developed ventilator associated pneumonia.

19. He was finally discharged from the intensive care unit to the neurological ward on 2 August 2011 where he showed symptoms of agitation and confusion requiring close nursing supervision.

20. On 17 August 2011, he had his frontal skull replaced and was discharged from hospital on 2 September 2011 when he returned to Ireland.

21. Dr David McDowell, the neurosurgeon who treated Mr McCarthy described his injuries as "major, life-threatening head injuries" and that it was "almost certain that he will suffer permanent cognitive impairment as a consequence of his severe head injuries. There is also a risk of future epilepsy".

22. Dr McDowell confirmed that the bruising on the left frontal and left temporal areas of the brain would have been caused by the punch. He concluded that the injuries will have had a negative impact on Mr McCarthy's cognitive function and that Mr McCarthy will have a major long-term impairment. He concluded that the injuries were permanent and that a considerable degree of force would have been required to cause the skull to fracture. He said that Mr McCarthy would have died if he had not received immediate medical assistance.

23. Mr Byrne was arrested on, it appears, 25 July 2011 and appeared in the Magistrates Court on 26 July 2011. He was charged with intentionally inflicting grievous bodily harm and remanded in custody. Mr Byrne was granted bail on 29 July 2011 and, as a result of a breach, his bail was revoked on 3 October 2011.

24. On 29 July 2011 he entered a plea of guilty and was committed for trial to this Court on 13 October 2011. On 21 October 2011, he was granted bail by this Court. He had, at that time, been in custody for twenty-three days in respect of the offence.

25. After a two-day trial before Murrell CJ, without a jury, her Honour, on 27 November 2013, found Mr Byrne guilty of the charge. See R v Byrne [2013] ACTSC 246. On 3 February 2014, he was sentenced to a term of imprisonment to be served as noted above (at [3]). The sentence was directed to commence on 11 January 2014 to take into account the periods of pre-sentence custody. See R v Byrne (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, SCC 345 of 2011, 3 February 2014).

26. At the time, he was also sentenced in relation to a breach of a good behaviour order. [Redacted for legal reasons]. The conviction entered by Murrell CJ constituted a breach of that further good behaviour order.

27. Her Honour cancelled the good behaviour order, sentencing Mr Byrne to four months imprisonment to be served concurrently with the sentence on the count of recklessly inflicting grievous bodily harm. I shall refer to this later.

28. As also noted above (at [4]), Mr Byrne appealed to the Court of Appeal which, at the conclusion of the hearing of the appeal, allowed the appeal and granted Mr Byrne bail: Byrne v The Queen [2014] ACTCA 31 at [63]. He did not apply for bail pending appeal and, given the sentence, it is unlikely that it would have been granted. See Sherd v The Queen (2011) 5 ACTLR 290 at 299; [47].

29. Accordingly, Mr Byrne had spent exactly seven months in custody pending the appeal. I shall take this period into account when imposing sentence. See Hawkins v Hawkins (2009) 3 ACTLR 210 at 228; [85].

30. I had a Pre-Sentence Report and a Criminal History. Mr Byrne gave some evidence before me and I had submissions from his counsel. A copy of the sentencing remarks of Murrell CJ, R v Byrne, was also provided to me. From this material, I make the following findings of fact.

31. Mr Byrne was eighteen years of age at the date of the offence, having been born in 1992, the younger of two boys of his parents. His parents separated in 1996 and his father moved to Queensland. Although they stayed in contact, their relationship has never been a close one, but Mr Byrne felt sad after his father left the family. Mr Byrne's mother has re-partnered and he shares a close relationship with his mother and stepfather.

32. Mr Byrne had a rather rough relationship with his older brother, who bullied and beat him frequently, once to the point where Mr Byrne had to be treated at hospital. He says, however, that he now has a close relationship with his brother.

33. Mr Byrne completed Year 12 at school and, in 2011, commenced studies at the University of Canberra for a Bachelors Degree in Architecture. During that time he held a number of part-time casual positions in customer service and construction. He now studies Business Marketing during the week and works on Fridays and Saturdays as a builder's labourer.

34. Mr Byrne told the author of the helpful Pre-Sentence Report that he supports himself and funds his education with the help of a student loan and earnings from his casual employment. He is said to have no debts.

35. He currently lives at home with his mother and stepfather. He has been in a relationship with his present girlfriend for approximately three years though they have known each other for about six years.

36. In her remarks on sentencing, R v Byrne at [13], Murrell CJ said:**

The couple engages in projects of a domestic nature, and the offender rarely goes out, maintaining a small group of close friends. He has become relatively reserved and introverted.

**37. In the past, Mr Byrne has used alcohol every week on social occasions, typically sharing a bottle of spirits with his friends. Indeed, he had consumed alcohol on the night of the offence.

38. Mr Byrne's evidence was that since his release from custody he has only consumed alcohol on one occasion, namely the night that he was released, and has not consumed alcohol otherwise since August 2014. I accept that evidence.

39. His girlfriend reports that she has only seen him drink alcohol on social occasions and never to excess. Mr Byrne does not consider alcohol to be an ongoing problem for him. I accept that evidence also.

40. He has tried marijuana once when younger but has not used it since and does not use other illicit substances. He has been a member of a basketball team for a number of years.

41. Mr Byrne told the author of the Pre-Sentence Report that he "felt very bad" about assaulting Mr McCarthy and that he "was not thinking about hurting him" before he did so. He also said that he heard the victim saying that he wanted to fight with Mr Byrne but acknowledged that his judgement was affected by alcohol and tiredness as he had been "clubbing" with his friends that night. He accepted responsibility for the assault and, in relation to the injuries suffered by Mr McCarthy, said, "I wish it had not happened".

42. Mr Byrne has a rather significant criminal history. [Redacted for legal reasons].

43. At the time of the offence, he was on conditional liberty. [Redacted for legal reasons].

45. In the remarks on sentence by Murrell CJ, R v Byrne at [15]-[16], her Honour also said:**

The material before the Court establishes that the offender is good natured, helpful and polite. He is mature and helpful around the home, and he undertakes many domestic tasks. He is an active sportsman. He is a very reliable employee. He is modest, and he gets on well with other people. To the offender's credit, he has engaged with the Bimberi Youth Detention Centre for the purpose of organising a programme to educate juveniles about the negative impacts of street violence and the relationship between alcohol and violence. That is a commendable decision on the part of the offender.

The offender's stepfather gave evidence that the offender has expressed concern for the victim after the offence. It appeared that the offender's concern was genuine and not solely motivated by the fact that he perceived that he was in trouble.

**46. I propose to take these matters into account.

47. A statement from Mr McCarthy was tendered and admitted into evidence. He says that he is forty-one years old and would work seven days a week, if he could get work, as he considers himself a hard worker. He loves his work as a builder and had to leave Ireland to follow his work due to the recession. He came to Australia on a holiday visa.

48. He described his medical circumstances and noted that he was on heavy medication all the time. He says it took him weeks "to just stand again". He still suffers from migraines and, though he used to have "a fine appetite", he now has no appetite. His head hurts when he tries to lie on the pillow at night and he finds it hard to sleep. He has difficulties with his memory which he did not before the incident. He cannot work or drive and the incident has clearly affected his family. His mother had to come to Australia from Ireland when he was in hospital and thought she was coming over "to turn off the machine that was keeping [him] alive". He says he is not allowed to drink, smoke or work and considered that he had "no life". He does not go out any more and feels embarrassed about the way he looks because his scars are so obvious, being on his head. He is afraid of getting balder. His fiancée has had their first child but he is unable to support them and feels he cannot get married or be "a dad and husband for [their] family".

49. This gives a good indication of the disabilities suffered by Mr McCarthy which the description of his injuries do not clearly describe. It is, however, not unexpected from the harm which it describes as having been suffered by Mr McCarthy as described in the Statement of Facts.

50. As no objection was taken to the Victim Impact Statement, no question raised as to the weight to be attributed to it and no attempt made to limit its use, I accept it as evidence of the substantial harm which it describes as having been suffered by Mr McCarthy. See R v Tuala [2015] NSWCCA 8 at [78].

51. It is curious that the maximum penalty for the offence was the same as for common assault, as noted above (at [7]), even though the element of the offence relating to the harm suffered is so much more serious. That has now changed, however, and the maximum penalty is now five years imprisonment, the same penalty for assault occasioning actual bodily harm which is, still, though, a lesser harm than this offence encompasses.

52. Nevertheless, Mr Byrne is to be sentenced for the offence charged and to which he has pleaded guilty and with a maximum penalty as at the time the offence was committed. As has been said many times, the maximum penalty specified by the legislature is an important yardstick to mark the relative seriousness of an offence. See, for example, Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31].

53. Nevertheless, this must be a serious version of the particular offence. The injuries actually suffered are plainly relevant to the assessment of the seriousness of an offence of violence as pointed out by Spigelman CJ, with whom Sully and Ireland JJ agreed, in R v Bloomfield (1998) 44 NSWLR 734 at 740.

54. Notwithstanding the seriousness of the injuries and harm suffered by Mr McCarthy, I cannot sentence Mr Byrne, and will not do so, for a more serious offence than the one to which he has actually pleaded guilty.

55. The Crown submitted that this was to be regarded as a serious offence by virtue of other factors as well. In the first place, as is the fact, Mr Byrne was on conditional liberty at the time the offence was committed. It was also pointed out that the victim was in a vulnerable position; he was intoxicated and alone, while Mr Byrne was surrounded by males whom he apparently knew.

56. I accept that this was a very serious version of the offence.

57. A number of decisions were handed up by the Crown. It was not entirely clear what was said to be drawn from some of them.

58. For example, in R v Charnock (Unreported, Australian Capital Territory Supreme Court, Nield AJ, SCC 334 of 2011, 4 September 2012), the offender was sentenced for a different offence, namely recklessly inflicting grievous bodily harm. Mr Charnock pleaded not guilty but was found to be guilty after a trial. He was somewhat older than Mr Byrne and had a more serious criminal record with four prior offences of violence. It did not seem to me that this decision was of assistance in this case. There appeared to be no principles of sentencing to be drawn from it that were relevantly applicable.

59. The next case was a decision of the New South Wales Court of Criminal Appeal, Ross v R [2012] NSWCCA 161. This case was also problematic since it, too, involved a different offence, recklessly inflicting grievous bodily harm, the offence for which Mr Byrne was originally charged and convicted but the conviction for which was set aside.

60. It appears that the purpose of reference to this case was for the principle set out in the comment of Price J, with whom McClellan CJ at CL and Button J agreed (at [20]) as follows:**

The Sentencing Judge correctly acknowledged that the assessment of the objective seriousness of an offence under s 35(2) will significantly depend upon the harm suffered by the victim: R v Mitchell; R v Gallagher [2007] NSWCCA 296; [2007] 177 A Crim R 94; R v Thawer [2009] NSWCCA 158. Her Honour recognised that other factors such as the nature of the attack and the surrounding circumstances were also relevant to the objective seriousness of the offence: McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439.

**61. While the two offences were quite different (the offence dealt with in Ross v R attracted a maximum penalty of ten years imprisonment) the principles there set out do seem to me to be applicable to offences of violence more generally and, therefore, applicable here.

62. The Crown, however, did refer to two decisions of this Court in respect of sentences imposed for the same offence. In R v Obradovic (Unreported, Australian Capital Territory Supreme Court, Burns J, SCC 148 of 2013, 23 December 2013), the offender took umbrage at the victim kissing his girlfriend. He followed him and demanded an apology. The victim did not wish to fight, but Mr Obradovic struck him once in the head with a hard blow causing him to fall to the ground striking his head heavily on the road surface. He was badly injured. He was taken to hospital suffering a traumatic brain injury, not dissimilar to the injuries suffered by Mr McCarthy. The victim in that case was also unable to work and may be unable to return to full-time employment. Mr Obradovic had a criminal history, though not a substantial one, the most significant matters being three drink-driving offences. He was thirty-eight years old and showed remorse and empathy for the victim. The victim was vulnerable as he was intoxicated and the blow was a hard one. He was sentenced to eighteen months imprisonment to be released after six months and the balance of the sentence suspended with a good behaviour order, including a probation condition.

63. In R v Srikandakumar (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, SCC 113 of 2013, 8 April 2014), the offender and the victim were involved in an altercation at a McDonald's restaurant in Civic when the victim was slightly intoxicated. The offender then walked to the victim and punched him on the right side of his forehead with significant force. The victim managed to stand up and attempted to fight back but without making contact with the offender who forcefully punched him causing him to fall backwards. The victim managed to walk away, but was later diagnosed with complex facial and skull fractures to his right cheek and right eye socket. He underwent surgery that involved the insertion of plates and screws. The injury was described as "very significant" leaving him with some incapacity, blurred vision and, in the short term, significant physical difficulties.

64. The offender in that case was nineteen years of old at the time of the offence and had no significant record. He was intoxicated at the time, being a regular binge drinker, and was also, as it happens, studying for an architecture degree. In that case, Mr Srikandakumar was sentenced to imprisonment for six months, three months to be served by periodic detention and the remainder suspended with a good behaviour order.

65. It is, however, notable that, in R v Obradovic and R v Srikandakumar the maximum penalty at that time was five years imprisonment.

66. Finally, the Crown drew my attention to the decision of the New South Wales Court of Criminal Appeal in Gilmore v R (1979) 1 A Crim R 416. The significance of this case was simply that the court there held that where there is a new trial the head sentence passed at the first trial should ordinarily be regarded as a ceiling which should not be exceeded on sentencing by the second trial judge. This is not directly relevant here for at least two reasons. In the first place, the offence for which I am now sentencing Mr Byrne is a different offence from that for which Murrell CJ sentenced him. The second matter is that the sentence imposed by her Honour in fact exceeded the maximum penalty for the offence for which I am sentencing Mr Byrne.

67. Nevertheless, it is an important principle in appropriate cases.

68. I take into account the purposes of sentencing set out in s 7 of the Sentencing Act. It seems to me in this case that general deterrence is an important factor but, in the context, rehabilitation is also significant.

69. In the circumstances, it does not seem to me that specific deterrence looms large, given Mr Byrne's behaviour since the offending, including the absence of further offences and his abstention from alcohol, the latter being an important risk factor identified by the author of the Pre-Sentence Report.

70. On the other hand, it is important to recognise the harm done to Mr McCarthy and to impose a suitable punishment.

71. I have set out above the relevant matters which I am required to take into account under s 33 of the Sentencing Act.

72. I take into account Mr Byrne's plea of guilty. I note that the Crown case was a very strong case and that must moderate the discount for the plea of guilty, though it was entered at a very early stage, shortly after the indictment containing the offence was filed.

73. I take into account the objective seriousness of the offence as I have indicated above. The harm caused means that the offence was one of significant seriousness with significant ongoing disabilities suffered by Mr McCarthy. The nature of the offending was not in the highest range since there was a single blow, with no weapon, but the punch administered by Mr Byrne was of such force that Mr McCarthy was felled immediately. Further, in all the circumstances, I cannot say that Mr Byrne was genuinely provoked.

74. It is also relevant that Mr Byrne left the area immediately and did not attempt to render assistance. Indeed, he tried initially to evade police.

75. He is, however, a relatively young man and although no longer entitled to the particular regime reserved for offenders under the age of eighteen years, he was still young enough to be entitled to appropriate consideration. See R v Gordon (1994) 71 A Crim R 459 at 469. I note that the weight to be given to the element of youth does not vary with the seriousness of the offence; indeed, it should be dealt with in materially the same way as in less serious offences. See Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at 458; [24].

76. I take into account the subjective circumstances of Mr Byrne as I have set them out above. In particular, I take into account that he has stopped drinking alcohol and committed no further offences since this one. He has, in my view, excellent prospects of rehabilitation.

77. I also take into account the delay between the commission of the offence and this sentencing, very nearly four years. As pointed out in Blanco v R [1999] NSWCCA 121; (1999) 106 A Crim R 303 at 306; [16], there are three reasons for this, namely the uncertain suspense in which the offender is left, the demonstrated progress towards rehabilitation in the intervening period and the fact that sentencing for a stale crime calls for a measure of understanding and flexibility of approach.

78. While the delay is not considerable, Mr Byrne is not responsible for it. For a young man, it is a significant period of his life.

79. I note that Mr Byrne has been assessed as suitable for a community service work condition to a good behaviour order and as suitable for serving a period of imprisonment by periodic detention.

80. Nevertheless, I consider that no sentence but a sentence of imprisonment is appropriate for this offence.

5. I convict you causing grievous bodily harm to Timothy Gerald McCarthy by an unlawful act on 24 July 2011.

6. I sentence you to twelve months imprisonment to commence on 8 September 2014.

7. I suspend the sentence today for a period of twelve months.

8. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with a probation condition that you accept supervision of the Director-General or her delegate for a period of two years, or such lesser period as the person supervising you deems appropriate, and obey all reasonable directions of the person supervising you.**

I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge

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