R v Chapman [2018] ACTSC 57

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - recklessly inflicting grievous bodily harm - unprovoked attack - victim struck once - general deterrence - intensive corrections order not appropriate - suspended sentence - community service work condition

Crimes Act 1900 (ACT), s 20

Crimes (Sentence Administration) Act 2005 (ACT)

R v Kepaoa [2017] ACTSC 414

R v Kepaoa (No 2) [2018] ACTSC 24

1. Benjamin Chapman, the offender, has pleaded guilty to a charge of recklessly inflicting grievous bodily harm. The offence occurred on 1 April 2017 when he was at the Mr Wolf nightclub with two of his friends. Without warning or provocation he struck his victim, another young man attending the nightclub, on the left side of his face with enough force to fracture his jaw.

2. The maximum penalty for recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) is 13 years imprisonment.

3. The offender and a friend of his, Mr Gibson, travelled from Ulladulla to the house of another friend, Mr Templeton, in Bruce in the Australian Capital Territory. They commenced an evening of drinking by consuming beer before going to Bruce Stadium to watch a football game. They consumed a substantial quantity of beer there. They then went back to Mr Templeton's house in Bruce where they drank some more. They then continued drinking at a number of pubs and clubs, ending up at the Mr Wolf nightclub, a venue commonly referred to in sentencing decisions in this Court.

4. At about 10:44pm, Mr Templeton bumped into the victim, a Benjamin Zaja. Mr Zaja and Mr Templeton had a brief interaction which concluded with them shaking hands and hugging. Mr Templeton and Mr Gibson then walked away. Mr Zaja extended his hand to the offender who was standing behind Mr Templeton. They shook hands. Then, without any warning or provocation, the offender struck Mr Zaja once on the face with his right arm with enough force to cause Mr Zaja to stumble backwards and fall on the floor. Mr Zaja suffered a broken jaw. There is no rational explanation for the offender's violent conduct.

5. Mr Zaja attended The Canberra Hospital and underwent surgery under general anaesthetic to repair a fracture to the left side of his jaw. He had a minimally displaced fracture. Plates and screws were inserted. He was discharged after two days. A victim impact statement which was read to the Court indicates that he has required ongoing orthodontic treatment and will require further surgery to remove a tooth and the plates that had been inserted. It also records the financial impacts, the impact on his relationship with family and his girlfriend, and upon his quality of life for a substantial period due to the immediate impact of being unable to eat, the requirement for orthodontic work and the requirement for further surgery.

6. The offender was told of the video of his conduct taken from closed circuit television (CCTV) within the nightclub on 1 May 2017. He contacted police on 3 May 2017. On

6 May 2017 he agreed to attend an interview with police on 18 May 2017. On that day, he travelled from Ulladulla to Canberra to participate in the interview. In that interview he made admissions that he was the person shown in the video and indicated his remorse for his conduct.

7. The objective seriousness for this offence is to be assessed by reference to both the culpability of the offender as well as the gravity of the harm caused.

8. While very serious in an absolute sense, having regard to the range of harm that is encompassed within the concept of grievous bodily harm, a broken jaw of the nature suffered by the victim is at the lower end of the spectrum of harm encompassed by this offence.

9. So far as his culpability is concerned, what was involved was a single strike. It was not premeditated. It was an act of violence influenced by a significant degree of intoxication. Having regard to his previous history of violence when intoxicated, the offender must have been aware of his propensity in that regard.

10. Having regard to these matters, the objective seriousness of this offence is in the low-range of objective seriousness.

11. The offender is 25 years old. He was raised in a positive family environment. He remains supported by his parents and two older siblings. He has been in a long-term relationship for the past four years and has a daughter who is four months old. Although his partner is or has been employed, it is the couple's intention that she stay out of paid employment at the end of her period of paid maternity leave. The birth of his daughter is a significant motivating factor for making changes in his life. A letter from his partner illustrates that she and her young daughter are dependent upon the offender both financially and emotionally. He is a qualified cabinetmaker and has been employed as a cabinetmaker with his current employer for the past seven years. He is currently a foreman. He is clearly a valued, long-term employee of the joinery where he works. He also tendered an additional positive reference from a member of the Milton-Ulladulla community.

12. He did not recall the incident, although he has viewed the CCTV. He has expressed shame and remorse at his conduct both to the police, in a letter to the Court and in the oral evidence that he gave. He recognises the connection between violence and his use of alcohol. He is assessed by the author of a Pre-Sentence Report as being at a low-risk of reoffending and as unlikely to benefit from a period of supervision.

13. He has undertaken some psychological counselling after his offending conduct, but that ceased prior to or soon after May 2017.

14. The offender has convictions for offences of violence. In 2013, he was convicted of an offence of affray committed on 8 June 2013 and was required to perform 75 hours of community service work. In September 2017, he was convicted of an offence of assault committed on 18 February 2017 and given a 12 month good behaviour order.

15. The offender pleaded guilty in the ACT Magistrates Court on the third occasion the proceedings were before the Court, after the brief of evidence had been prepared and served upon him. A plea of not guilty had been entered initially. That was on the advice of his solicitor in order to determine whether the nature of the injuries was such as to amount to grievous bodily harm. The plea of guilty clearly has significant utilitarian value and was consistent with his acceptance of responsibility.

16. The offender has not spent any time in custody in relation to the offence.

17. It must be recognised that the assault on the victim was completely unprovoked and has had a significant impact upon him. Both the short and long-term consequences of being the victim of a violent and unprovoked assault must be acknowledged. No sentence that the Court imposes will rectify the consequences of the loss of bodily integrity inflicted upon the victim.

18. The circumstances of this case are in many respects similar to those R v Kepaoa [2017] ACTSC 414 (Kepaoa). I adopt what I said in that case at [34]-[41]:

1. So far as the second assault [an assault occasioning grievous bodily harm] is concerned, it is well established that the key matters to be considered when assessing the objective seriousness of this offence are the culpability of the offender's conduct and the relative seriousness of the grievous bodily harm sustained by the victim ...
2. There are a number of decisions of this Court relating to offenders who inflicted grievous bodily harm on their victim.
3. In R v Dunn [2017] ACTSC 227 the offence involved a punch to the head causing permanent damage to the complainant's eye resulting in a substantial permanent impairment of vision that had long-term consequences for the victim and which occurred in the presence of police where the offender had a history of previous violent conduct. A sentence of 27 months was imposed which was suspended after 11 months.
4. In R v EL [2016] ACTSC 241 the offender had picked-up a wooden fence paling and hit the complainant which resulted in extremely severe life-threatening injuries to his head. The offender had been a child soldier in Sudan and had an extremely troubled childhood. He had previous convictions for offences of violence. The offender was sentenced to imprisonment for two and a half years reduced from three years on account of the plea of guilty. It was to be served by an Intensive Corrections Order.
5. In R v Hidic [2017] ACTSC 307, the offender had punched a player upon an opposing futsal team in the head. The victim suffered a fractured eye socket as well as lacerations requiring stitches. The offender was a young man who was otherwise of good character. Having served two months when bail-refused he received a sentence of two years and seven months to be served by way of an Intensive Corrections Order as well as 300 hours of community service.
6. R v Sharma [2016] ACTSC 180 involved a one-punch attack by a drunk man who was 20 at the time of the sentence. Elkaim J at [34] and [35] emphasised the need for general deterrence for this kind of attack. The offender was sentenced to 27 months' imprisonment suspended after nine months.
7. In R v Myles [2017] ACTSC 194, the offender had committed another one-punch attack whilst drunk which led to a broken jaw. He was given a sentence of 22 months which was to be served by Intensive Corrections Order as well as a requirement that he perform 249 hours of community service within 12 months.
8. So far as the considerations under s 7 of the Crimes (Sentencing) Act 2005 (ACT) are concerned, as I have indicated, general deterrence is a very important sentencing consideration. Clearly, these kinds of drunken attacks by young men are a matter of considerable community concern and have the potential to cause extremely serious harm to the victims. A sentencing purpose of general deterrence must be clearly reflected in the sentence that is imposed. ... Punishment, accountability, denunciation and the recognition of the harm to the victim are also sentencing purposes that are important in this case. Clearly, the court must recognise the harm to the community that arises from this kind of behaviour.

19. In Kepaoa, the ultimate sentence was a custodial sentence of 22 months to be served by way of an intensive corrections order with 249 hours community service: see R v Kepaoa (No 2) [2018] ACTSC 24.

20. Unlike the situation in Kepaoa, the offender in the present case has previous convictions for offences involving violence. Those circumstances indicates a close association between his consumption of excess quantities of alcohol at public drinking establishments and violence. Notwithstanding that situation, the personal circumstances of the offender and the terms of his oral evidence are such that I consider that the need for specific deterrence is somewhat less than in Mr Kepaoa's case. The particular features of the present case that led me to that conclusion are the fact that he is now the father of a young child and that there are significant indications that the experience of fatherhood will reduce the likelihood of continued incidence of drunkenness at public drinking establishments. It is also the case that, unlike Kepaoa, the victim was only struck on one occasion. Consistent with the evidence in the case, the impression that he gives is that, other than under the influence of alcohol, he is a non-violent and

non-threatening young man. It appears that the offender is at a point where, if he is able to avoid excessive alcohol consumption, he will be able to put his offending conduct behind him. All of the objective indicators, except his past history, are positive in that regard.

21. I accept that he entered a plea of guilty at an early stage and that he is remorseful in relation to his conduct. No reparation order was sought by the Director of Public Prosecutions.

22. It is clear that having regard to the available alternatives, a custodial sentence is the only appropriate sentence.

23. In my view, the appropriate starting point is a custodial sentence of 20 months. That will be reduced by 25 per cent on account of the plea of guilty, which gives a sentence of 15 months.

24. The default position is that it must be served by way of full-time detention.

25. An intensive corrections order is not available having regard to his residence outside the Territory. In any event, I do not consider that the intensive supervision that would be required by such an order would be of any particular benefit in the present case.

26. I do consider that in the present case it is appropriate that the sentence be wholly suspended. Having regard to the gravity of the offence, that is only possible if a significant obligation to perform community service is also imposed.

27. The effect of the sentence that I will impose will be that there will be very strong incentives for the offender to put his excessive drinking behind him and to conduct himself lawfully. If he does not, then the default position will be that he will be required to spend a substantial period of time in full-time custody. On the other hand, if he can remain free of further offending conduct as a result of avoiding excessive alcohol consumption and the violence that it appears to provoke, the community's interest will be advanced.

(1) The offender is sentenced to imprisonment for a period of 15 months which will be suspended forthwith upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 30 months.

(2) The good behaviour order will be subject to the following condition:

(a) a community service condition requiring him to perform 300 hours of community service within 30 months.

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.