R v Dunn [2017] ACTSC 227

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - recklessly inflict grievous bodily harm - mid range of objective seriousness - single punch - significant and long-lasting impact on victim - offender voluntarily intoxicated - offence committed in the presence of a police officer - guilty plea - male offender 25 years old - offender had previously committed violent offences associated with the consumption of alcohol - specific deterrence - general deterrence - denunciation.

Crimes Act 1900 (ACT), s 20

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), s 7

R v Amosa [2015] ACTSC 34

R v Beniamini (No 2) [2017] ACTSC 32

R v EL [2016] ACTSC 241

R v Sharma [2016] ACTSC 180

1. The offender is charged with recklessly inflicting grievous bodily harm in contravention of s 20 of the Crimes Act 1900 (ACT).

2. The maximum penalty for the offence of recklessly inflict grievous bodily harm in contravention of s 20 of the Crimes Act is 13 years' imprisonment.

3. The facts giving rise to the charge are, unfortunately, of a predictable nature. They involve one young man full of alcohol in Civic being violent towards another. The victim was out with friends and had consumed a considerable amount of alcohol. He left a bar in Civic to walk back to his hotel on Northbourne Avenue. He stopped at a service station and asked the offender and another male for directions to his hotel.

4. At about 12:40am, police at the intersection of Cooyong Street and Mort Street observed the offender, another male and the victim standing a few metres apart in a fighting stance with fists clenched. Both offender and victim appeared to be intoxicated. Police approached the offender and the offender said "this bloke's been following and abusing me all night". The police officer told them that it was time to go home. The officer walked with the victim as he crossed the road to the car park at the McDonalds restaurant. The victim was behaving in a manner consistent with a high degree of intoxication. He said something that the officer could not understand. The offender who had been walking in the other direction walked to the middle of Mort Street and said to the victim "what did you say?" The police officer, who was in full police uniform, told him to just walk away. The offender walked towards the victim and struck him with a closed fist on his right eye. The victim fell to the ground and had blood coming from around his right eye. The offender was placed under arrest and said "what was I meant to do, I couldn't let that go." The offender then asked the victim what he had said. Although the officer had checked the victim initially, he was subsequently unresponsive and appeared to be going in and out of consciousness. He was transported to the Canberra Hospital by ambulance.

5. The victim suffered a traumatic rupture to the globe of his right eye involving a fullthickness laceration of the cornea and the loss of the lens of the eye and possible retinal injury. He was required to undergo surgery twice to minimise the damage. At the time of discharge from hospital his vision in his right eye was poor and he was only able to count fingers at a distance of one metre. He also suffered bruising. He will suffer permanent loss of vision to his right eye, the exact degree of which is not known.

6. He also suffered laceration to the right upper-eyelid which required repair under general anaesthetic.

7. The extent of the impact upon the victim was made clear by the victim impact statement which was read out by counsel for the Crown. The victim remains unable to see anything with clarity out of his right eye. He sees only a blur of messy colour which he describes by comparing it to "a light show". These effects have resulted from the permanent structural damage which occurred within his eye. Fortunately after the accident he obtained treatment at the Canberra Hospital where he underwent surgery for a period of three hours. The stitches placed in his eye are likely to have to remain in place permanently. He subsequently had to have a second surgical intervention to stop his retina from detaching from his eye. He had to undergo surgery on a third occasion to remove the oil that had been inserted in his eye as part of the second operation. He suffered from pain during this process requiring him to be hospitalised for pain control and he is now dependent upon opiates. His eye is constantly dilated and this causes him severe pain and debilitating headaches. His vision and depth perception have been affected so that ordinary tasks have become very difficult. While he is now able to drive, he was unable to drive for three months after the injury and still struggles with peripheral vision and depth perception. He works as a fireman. He has had to have significant time off work. The injury has imposed a significant financial burden upon him as a result of ambulance fees, hospital fees, surgery fees, loss of wages, loss of income for his parents-in-law who have taken time from their employment to care for his five children, accommodation expenses, fees related to being admitted to mental health facilities as well as medical products necessary for the ongoing care of his eye.

8. The injuries that he had suffered and the consequences have also had ongoing effects on his family, his relationship with his children and his relationship with his wife. He also suffers psychological impacts, including fearing for his safety, being depressed that he has been robbed of his independence and autonomy and struggling to regain his confidence in circumstances where his eye will never be the same again. He feels embarrassed and self-conscious about the appearance of his eye which is now blackened. He wears a patch over it in public.

9. The victim impact statement clearly demonstrates that the impact of the assault on the victim is significant and long-lasting. It also demonstrates that the impact is not merely upon the victim but upon the whole of his family as well as consequential impacts for the broader community.

10. The objective seriousness of the offence must be judged by reference to both the nature of the behaviour in which the offender has engaged, indicating its level of moral culpability, as well as the nature and extent of the grievous bodily harm suffered by the victim: see R v Amosa [2015] ACTSC 34 at [20]; R v Sharma [2016] ACTSC 180 at [17].

(a) involved a punch to the head;

(b) sufficient to cause long-lasting damage to the right eye as well as to make the victim lapse in and out of consciousness in the short-term;

(c) in circumstances where there had been some earlier animosity and the threat of physical violence between the parties but no identifiable act of provocation on the part of the victim;

(d) in circumstances where the offender was voluntarily intoxicated;

(e) which occurred in the presence of police who were attempting to de-escalate the situation and hence where the deterrent effect of the state was at its most obvious.

12. Although the offender was in company with another person there is no evidence that that other person engaged in any aggressive conduct and hence I do not consider that this was an aggravating feature in the sentencing exercise: R v Amosa at [26].

13. While it was a single punch and did not involve a sustained attack involving a series of punches, the act was a serious one which carried with it the real risk of the infliction of grievous bodily harm.

14. The consequences of the offending conduct have been severe. While the range of conduct which is covered by this offence is obviously broad, in the present case the injury was to the head and while causing grievous bodily harm to the victim could also have involved more significant injury. The conduct had a permanent effect upon the vision of the victim and this has had dramatic long-term consequences for that individual and affects not only the individual but his family and the community more generally. Having regard to the gravity of the conduct that can be covered by the offence I assess this as being in the mid range of objective seriousness for this offence.

15. The offender is 26 years old. At the time of the offending conduct he was 25 years old. He is the younger of two children of his parents. His parents separated when he was one year old. He has not had contact with his father since. He recorded a positive childhood with his mother.

16. He has been in a de facto relationship for the past five years. He has two dependent children both of whom reside with their mother. The offender spends substantial amount of time away from home doing contract carpet-laying work.

17. He completed Year 11 at school and has worked as a subcontract carpet-layer for the past seven years. He works full-time. The references provided by employers, both made with knowledge of the charge he is currently facing, attest to the fact that he has been a very reliable and competent employee and contractor. They attest to the fact that he is a hard-working, diligent and honest young man.

18. He has recently been diagnosed with depression. The nature of this depression and its underlying causes are not disclosed. He has drunk alcohol regularly since the age of 15. He often gets intoxicated on the weekend. He is attending drug and alcohol counselling fortnightly commencing in July 2017. He has undertaken psychological counselling since May 2017 in order to manage his anger and modify his behaviour. While he admitted the offence to the author of the pre-sentence report the author commented that he "maintained his own version of the event", it is not clear from the report what this means.

19. He is assessed by the author of the pre-sentence report as being at a low to medium risk of reoffending.

20. He is assessed as being suitable for community service.

21. There is no evidence of any attempt to make any reparation to the victim.

22. The offender has a criminal history which, unfortunately, includes a number of assault offences. In 2008 he had a number of offences which included two charges of common assault, recklessly wounding another person and affray. The reckless wounding charge led to him being sentenced to a control order for a period of six months which involved him spending time in a detention facility. In 2013 when he was an adult he was convicted of assault occasioning actual bodily harm and fined the amount of $600. This involved a fight at a pub.

23. While the criminal history is not extensive it does indicate that only limited leniency is possible having regard to the previous offences involving violence and the need to specifically deter any such conduct in the future.

24. The matter first came before the Magistrates Court on 15 March 2017. On 5 April 2017 the offender pleaded not guilty to the charge. He pleaded guilty on 14 June 2017. On that date he was committed to the Supreme Court for sentence. While his plea of guilty was not at the earliest opportunity it was only the third occasion the matter was before the Court. Having regard to the utility of the plea, and the fact that it involves a recognition by the offender of the wrongfulness of his conduct, notwithstanding the strength of the Crown case, I will reduce the sentences I would otherwise have imposed by approximately 20 per cent.

25. As Justice Elkaim remarked in R v Sharma at [34]:

The courts must emphasise to young people that the consumption of large amounts of alcohol or drugs that places them in situations where they act with reckless indifference towards other persons and cause very severe injuries is entirely inappropriate.

26. Sentencing in these circumstances must involve a very high degree of deterrence.

27. Having regard to his criminal history and his ongoing abuse of alcohol, specific deterrence in relation to this kind of conduct must be a significant factor in sentencing him. Very clearly, general deterrence is an important consideration having regard to the all-too-common coincidence between alcohol use and violence amongst young males.

28. So far as the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 are concerned there is clearly a need for adequate punishment as well as both general and specific deterrence. In a case such as this rehabilitation is an issue but that will largely be from reducing the the offender's alcohol use and giving him techniques to manage his anger. Denunciation of the conduct is clearly necessary as is recognition of the harm done to the victim of the crime and the community more generally.

29. I was referred to and have taken into account the sentences imposed by other judges of this Court in the cases of R v Amosa; R v Sharma; R v EL [2016] ACTSC 241; R v Beniamini (No 2) [2017] ACTSC 32. I have also had regard to those other cases which are usefully summarised in R v EL in the footnotes to paragraph [40].

30. In this case the offence was one committed in circumstances which provide little by way of mitigation. There had been some previous animosity between the offender and the victim. The police had intervened and yet notwithstanding that intervention the offender in his intoxicated state punched the victim in the head while he was walking away with the police officer. The offender's record discloses that he has some difficulties with violence. The conviction in 2013 indicates that he has previously been involved with violence associated with the consumption of alcohol. The consequences of the offending conduct in the present case for the victim and his family have been dramatic. The offender is a relatively young man who has done well at work and is clearly respected there. However behaviour of the type which he engaged in needs to be deterred both in relation to the offender and young men generally.

31. While there has been an expression of remorse through his counsel there is not significant evidence of insight into his offending behaviour. It is not clear whether the steps taken in relation to psychological counselling and drug and alcohol counselling represent a long-term commitment on the offender's part to rehabilitate himself and avoid offending conduct in future. Clearly a partner and children, as well as consistent employment, are all factors which tend against future offending conduct, even if they are not factors which specifically address the problem that he has had with alcohol and violence. Those factors also existed prior to the offending conduct.

32. I have considered the alternatives to a custodial sentence and do not consider that any alternative sentence would be appropriate. The reason for that conclusion is the objective seriousness of the offence.

33. I consider that the appropriate starting point is a sentence of two years and 9 months' imprisonment. This will be reduced to 27 months having regard to the utility of the plea of guilty.

34. I do not consider that it is appropriate that the sentence be served by way of an Intensive Corrections Order and hence will not adjourn the proceedings so as to permit an assessment of suitability to be undertaken. I do not consider that there would be any significant utility in intensive supervision pursuant to such an order and it is unlikely that he would be assessed as suitable having regard to the need to move to the Territory in order to permit the sentence to be served. Further I do not consider that a sentence not involving a period of full-time detention would adequately meet the purposes of sentencing in s 7 of the Crimes (Sentencing) Act 2005, particularly the need for denunciation and deterrence.

35. Rather I consider that it is appropriate that the sentence be served by way of full-time detention for a period of 11 months and thereafter suspend that sentence upon the offender entering into a Good Behaviour Order for a period of three years with a probation condition. This will permit a greater period of supervision in the community than would be available by simply imposing a sentence with a non-parole period.

36. In sentencing the offender in this manner I have taken into account the effect that this period of imprisonment will have upon the offender's partner and family. It is a tragic circumstance that he has created a situation where he will be unable to participate in his child and step-child's lives for such a period. However it is a consequence of his offending conduct which in my view cannot be avoided.

(i) The offender is convicted.

(ii) The offender is sentenced to imprisonment for 27 months starting on 15 August 2017 and ending on 14 November 2019.

(iii) The sentence is to be served by full-time detention for a period of 11 months commencing on 15 August 2017 and ending on 14 July 2018 and thereafter suspended upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of three years with a probation condition and a condition that the offender undertake any educational, vocational, psychological, psychiatric or other programs or counselling directed by the person supervising his probation.

I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.