R v Deng [2017] ACTSC 338

[2017] ACTSC 338

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - sentencing - offences against the person - grievous bodily harm - "one punch" attack - single charge - early guilty plea - lower range of objective seriousness - victim required the surgical implantation of pins and plates to stabilise and realign jaw - young offender - offender takes responsibility for offence - offender demonstrates insight into offence - strong prosocial factors - consideration of employer references - psychologist reports - general deterrence - no punishment other than a sentence of imprisonment appropriate - Intensive Corrections Order

R v Byrne [2015] ACTSC 113

R v Pumpa [2014] ACTSC 223

R v Reinberger (No 2) [2016] ACTSC 307

R v Seretin [2016] ACTSC 45

R v Sharma [2016] ACTSC 180

R v Williams [2015] ACTSC 406

1. The offender, Alex Deng, who is now aged 22 years' old, has pleaded guilty to a single charge of recklessly inflicting grievous bodily harm.

2. The maximum penalty under s 20 of the Crimes Act 1900 (ACT) is 13 years.

3. The plea of guilty was entered on the second mention of the matter in the ACT Magistrates Court. I therefore treat this matter as involving an early plea of guilty.

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

5. On 12 June 2016 the offender was at the Academy nightclub. The offender and another male, Zachary Sutherland, were involved in a physical altercation. The victim of the charged offence, Andrew McGovern, attempted to separate the offender and Mr Sutherland. Security staff at the nightclub intervened and separated the offender and Mr Sutherland. Both Mr Sutherland and Mr McGovern were escorted by security towards the exit. There was a point at which Mr McGovern was in front of the offender but not facing in his direction. The offender struck Mr McGovern once to the left side of his face with a closed fist and Mr McGovern fell to the ground striking the right side of his face on a solid metal table. He suffered serious injuries as a result of the application of blunt force to his lower jaw. He required surgical procedures under anaesthetic to treat the fractures of his jaw. That involved the implantation of pins and plates to stabilise the right side of his jaw and the realignment of the left side of his jaw. There is the risk that he will experience ongoing consequences as a result of the injuries including facial scarring, pain, reduced mobility of his jaw, an increased risk of arthritis of his jaw and an increased risk of dementia and Parkinson's disease. The extent of the pain and the magnitude of the risks is not quantified in the agreed Statement of Facts or otherwise by the evidence.

6. The offence was a single incident. It was not premeditated. Recognising that all offences of this nature are serious I would assess it as being in the lower range of objective seriousness.

8. The offender was born in Sudan and immigrated to Australia with his mother and two siblings when he was 10 years old. Since that time he has resided in Canberra and maintains good, supportive relationships with his family. He completed Year 12. He has been consistently employed in various relatively lowskilled positions. He has been with his current employer in the carpetlaying industry for approximately two years and is employed six days per week.

9. From the age of 16 until the age of 20 the offender would binge drink each weekend. His drinking has somewhat reduced since that time. He first used cocaine and MDMA when he was 21 years old. He has continued to use approximately half a gram of cocaine once every two months and two or three capsules of MDMA each fortnight.

10. The offender commenced alcohol and drug awareness prevention training at Directions ACT on 3 February 2017. He commenced the SMART Recovery group at Directions ACT on 9 February 2017. He has attended one session of each group intervention.

11. The offender takes full responsibility for his actions and demonstrated some insight into the offence identifying that alcohol and illicit drugs were a contributing factor. There was some evidence of racial abuse at the time of the offending conduct but the evidence was not sufficient to determine that it was the conduct of the victim of the offence.

12. The author of the Pre-Sentence Report identifies that he has strong prosocial factors with a supportive family and consistent employment history. He is identified as being at a low risk of further offending. He is assessed as not suitable for a community service work condition because of his full-time employment commitments.

13. A forensic psychological-assessment report prepared by Danielle Hopkins provides more detail on his family background, the circumstances at the time of the offence and the relationships within his family. The assessment report provides some more detail about the offender's psychological condition and his sense of social anxiety as a result of being a man of Sudanese background with a perception that he is not fully accepted by some people. It also provides further information about the offender's role within his family and in particular his mother's illness resulting from a lesion on her spine and pain paraesthesia and functional impairment on the right side following a fall in March 2016 as well as the offender's responsibilities at home, including cooking, cleaning and transporting his mother to medical appointments and church.

14. He has two excellent references from his employers. The relationship between the two employers "K & N Floors" and "Master Carpets (ACT) Pty Ltd" is not entirely clear. However the reference given by Christopher Simonovski and Nicholas Pribyl of K & N Floors attests to his hard work, his role within the family and his insight into his offending conduct as well as the progress that he has made since the offending conduct. The reference from Stuart Marshall of Master Carpets attests to the offender's enthusiasm, work ethic and professionalism and indicates that Mr Marshall intends to continue to employ him. These references and the evidence that they provide about his ongoing employment are important indicators of stability and support for him in the future.

15. A reference from Lesa Reed, who is the mother of high school friends of the offender, attests to his respectfulness, his willingness to assist others, his reliability and his trustworthiness. The reference also attests to the offender's generosity in assisting Ms Reed while at the same time fulfilling his work responsibilities.

16. There is also a reference from the offender's sister, Helen Deng, attesting to the offender's character, his family circumstances and the assistance that he has given to his mother, Ms Deng herself as well as her own children in times of need.

17. The offender attended appointments with a psychologist at Headspace Canberra who recorded his remorse and that he had attempted to avoid substances in situations that could contribute to anything similar in the future.

18. There is also a report from Dr Danielle Clout to whom the offender was referred for treatment for anxiety and depression under a GP Mental Health Care Plan. Dr Clout considered that the offender met the DSM criteria for both Social Anxiety Disorder and Major Depressive Disorder. She expressed the view that because of those conditions a sentence of full-time imprisonment would be found more onerous than for somebody with normal mental functioning. It would also have a greater impact upon him because of his sense of responsibility for his family.

19. The offender was referred for assessment for an Intensive Corrections Order and found suitable.

20. The offender was referred for assessment for restorative justice. The victim was not prepared to participate and hence he was found not suitable.

21. The offender was assessed as not suitable for community service because of his full-time work commitments although as part of his Intensive Corrections Order assessment he was found suitable for a community-service condition.

22. I was referred to a number of cases which have dealt with "one punch" or similar attacks: R v Sharma [2016] ACTSC 180, R v Reinberger (No 2) [2016] ACTSC 307, R v Byrne [2015] ACTSC 113, R v Seretin [2016] ACTSC 45, R v Williams [2015] ACTSC 406 and R v Pumpa [2014] ACTSC 223. Having regard to the differing objective circumstances of those offences and the subjective circumstances of the offender, no clear pattern emerges from those sentences other than that the offence is treated very seriously having regard to the necessarily grave consequences of the offender's actions. There is clearly a significant need for general deterrence of violent conduct by young men that occurs in or near licensed drinking establishments.

23. Because of the gravity of the offence and the seriousness of the harm caused I am satisfied that no punishment other than a sentence of imprisonment would be appropriate.

24. Having regard to the circumstances of the offence, including its consequences and the subjective circumstances of the offender, the appropriate starting point is a sentence of imprisonment of 16 months which will be reduced to 12 months on account of the early plea of guilty.

25. It is necessary to consider whether an order should be made that departs from the default position that imprisonment is to be served by way of full-time detention. I have given consideration to the imposition of a wholly or partly suspended sentence as well as an Intensive Corrections Order. I consider that an Intensive Corrections Order is appropriate in the present case. That will allow the offender to maintain his employment and to continue his role within his family. It will also permit a higher degree of supervision and resources so as to ensure that his mental health and drug and alcohol use are attended to.

1. The offender is convicted of the offence of recklessly inflict grievous bodily harm.

2. The offender is sentenced to imprisonment for a period of 12 months commencing on 18 May 2017 and ending on 17 May 2018 which is to be served by way of an Intensive Corrections Order with the following additional condition:

(a) the offender is required to attend and participate in any treatment counselling or programs relating to drugs or alcohol use or the management of his mental health as he is directed by the DirectorGeneral.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.