R v EL [2016] ACTSC 241

Supreme Court of the ACT|2016-07-20|Before: Penfold J

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

See [45]-[47] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - one count of recklessly inflicting grievous bodily harm - late plea of guilty - history of violent offending - offender exposed to significant trauma during childhood - offender suffering symptoms of Post Traumatic Stress Disorder at time of offence - connection between moral culpability of offender and objective seriousness of offence - sentence of imprisonment to be served by intensive correction order.

McCullough v The Queen [2009] NSWCCA 94; (2009) 194 A Crim R 439

R v Amosa [2015] ACTSC 34

R v Freeman-Quay (No 3) [2015] ACTSC 284

R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94

R v Seretin [2016] ACTSC 45

R v Williams [2015] ACTSC 406

The Queen v Ivan Torbert [2015] ACTSC 331

1. EL has pleaded guilty to one count of recklessly inflicting grievous bodily harm, an offence arising under s 20(1) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for 13 years.

2. The offence was committed in August 2013. As summarised in the agreed statement of facts:

The offender and the complainant are brothers. There was disagreement between them and the offender picked up a wooden fence paling and hit the complainant with it. The complainant suffered serious injuries.

3. The assault followed a conversation between the two brothers (EL being the younger) which, possibly fuelled by consumption of six cans of beer and a Red Bull, turned into an argument about family matters, in particular the pregnancy of EL's wife and the need for him to get a job so he could support her. Around 20 minutes after the conversation ended and EL went back to their mother's house, his brother returned to collect a jacket he had left. EL saw him, jumped out of the window, and hit his brother with a wooden fence paling. EL hit his brother again, and when his brother bent down to pick up a rock to defend himself, EL hit him in the mouth, and he fell to the ground. EL's brother was rescued by another brother.

4. Some time later (it is not clear how much later), EL called 000 and said that he had had a fight with his brother, claiming that his brother had hit him first. Police came and the brother was taken to hospital.

5. In hospital, EL's brother underwent emergency brain surgery, and remained in the Intensive Care Unit for five days. He was discharged from hospital around two weeks after the assault. Dr Catherine Sansum provided a report based on the hospital documentation, and summarised her opinion as follows:

[The complainant] sustained extremely severe life threatening injuries. The injuries required urgent specialist medical and surgical intervention to preserve his life.
[The complainant] sustained extremely severe life threatening injuries to his head. Possible consequences of such trauma to the head include:
- Injury to the brain
- Intracranial bleeding
- Facial bone fractures
- Skull fractures
- Damage to the cervical spine
- Dental injuries
- An increased lifelong risk of dementia and Parkinson's disease.
- Long term changes to his personality.
- Long term reduction in cognitive and physical abilities.

6. I note that those are the possible consequences of such trauma, not identified consequences, at this stage, of the assault. Dr Sansum went on:

There [is] a possibility of ... long term problems with [the complainant's] teeth. ...
[The complainant] will have permanent scarring due to the injuries sustained and medical interventions undertaken in order to preserve his [life].

As at 13 June 2014, approximately 10 months after the attack, the complainant still suffers from ongoing headaches, blurred vision and dizziness. The ongoing symptoms have impaired his ability to work and drive.

8. On 29 May 2014, EL answered a summons to appear in the Magistrates Court, where he was charged with this offence. He was released on bail, and has spent no time in custody.

9. EL pleaded not guilty in the Magistrates Court and was committed to this Court for trial. The trial was set down for 3 August 2015, but he pleaded guilty on that day.

10. As well as the statement of facts, the following material is in evidence before me:

(a) a victim impact statement;

(b) a criminal history;

(c) photographs of the complainant's injuries;

(d) Dr Sansum's statement; and

(e) photographs of injuries sustained by EL, the offender;

11. As well, the defence tendered a large volume of material:

(a) a transcript of the emergency calls between EL and police, and police and the ambulance service, on the day of the assault;

(b) a psychiatric assessment of EL dated 19 August 2008 from Dr Graham George;

(c) a report on EL dated 1 September 2010 from Companion House;

(d) two reports about EL prepared in the second half of 2013 by a psychologist working at Companion House;

(e) a psychological assessment of EL dated 9 November 2015 by clinical psychologist Sam Van Meurs;

(f) a letter from Multicultural Youth Services dated 11 June 2013;

(g) a CADAS report dated 14 August 2013; and

(h) pre-sentence reports dated 16 March 2011; 3 June 2013; and 15 October 2015; and an updated pre-sentence report dated 15 April 2016.

12. In considering the objective seriousness of the offence, I have had regard to the following matters.

13. Recklessly inflicting grievous bodily harm is a serious offence, and this is a fairly serious example of the offence.

14. The assault was a significant one, involving several blows and the use of a weapon for at least one and possibly two of them. EL's brother sustained serious and initially life-threatening injuries and, as Dr Sansum's report indicates, will for the rest of his life be at risk of developing particular health problems arising from this assault, including dementia and Parkinson's disease, as well as a general reduction in cognitive and physical abilities. He will also have permanent scarring.

15. The assault does not appear to have been premeditated; there is no suggestion that the presence of the fence paling was other than coincidental.

16. EL's brother provided a victim impact statement in September 2015. He reported emotional distress from recognising what he sees as his brother's hatred of him, and from the impact of their conflict on the rest of the family and also the Sudanese community in Canberra. He has also suffered financial loss through being unable to work, saying that it is hard to support his four children on a disability payment. He suffers ongoing pain and uses a lot of painkillers. He has problems with his teeth and eyesight and may require further surgery.

17. The pre-sentence report author says that EL has accepted that his behaviour was inappropriate, but did not take full responsibility for his behaviour and suggested that his brother shared the blame for the incident.

18. The prosecution cited the matter of R v Amosa [2015] ACTSC 34 as authority for the proposition that the objective seriousness of an offence of this nature:

has two aspects; the nature of the behaviour in which the offender engaged and the associated level of moral culpability, and the nature of the grievous bodily harm that was suffered by the victim.

19. I am not convinced that the reference in this context to moral culpability is helpful, since the question of moral culpability is significantly related to the offender's personal circumstances and the reason for the offender's actions, to which the offender's mental health may in some cases be particularly relevant. On the other hand, the offender's behaviour and the circumstances of the offence are relevant in assessing objective seriousness. In McCullough v The Queen [2009] NSWCCA 94; (2009) 194 A Crim R 439, Howie J, with whom McClellan CJ at CL and Simpson J agreed, said:

37 Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence.

20. The New South Wales Court of Criminal Appeal in that case referred to an earlier case, R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94, in which Howie J, with whom Giles JA and Fullerton J agreed, noted that, in effect, the objective seriousness of an offence may be distinct from the offender's culpability and how that is to be addressed in sentencing:

27 A very important aspect of an offence under s 33 is the result of the offender's conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence. This is not to underestimate the intent component of the offence, after all that is the element that makes the offender liable to a maximum penalty of 25 years as opposed to 7 years for a s 35 offence. But there is less scope for variation in the nature of the intention to do grievous bodily harm when determining the seriousness of a particular instance of the offence than there is for variation in the nature of the injury inflicted. It should be borne in mind that, if the victim had died, the respondents would have faced a charge of murder. The injury suffered by the victim was, as her Honour noted, little short of death.

...

31 The relevance of motive will vary depending upon the particular facts of the case. It may explain why the offence was committed without condoning or excusing it. The more serious the offence committed the less weight that can be given to motive as a mitigating factor, even if it might otherwise have had that effect. But as was pointed out in Swan, the existence of motive is relevant to other factors that may impact upon the sentencing discretion. In this case, particularly with respect to the respondent Gallagher, it partly explains why he committed such a serious offence notwithstanding that he had no prior criminal record and was otherwise considered a person of good character, apart from his use of illicit drugs. The existence of the motive indicated that in his case there was no need for personal deterrence. But because of Mitchell's prior offence of violence and because he was on a bond at the time, the significance of motive in this respect was reduced and it was appropriate to consider personal deterrence as a relevant factor notwithstanding his remorse.

32 It is importance [sic] therefore to understand that the existence of a motive for the commission of a crime and the nature of that motive may be important factors in the exercise of the sentencing discretion but may in some cases point in different directions. It may to some degree mitigate the objective seriousness of the offence yet indicate the need for a more severe sentence in order to address issues of deterrence. In some cases, as where the use of illegal drugs explains the commission of the offence, it offers no mitigation of the objectives [sic] seriousness of the offence, yet may allow significance to be given to rehabilitation of the offender: see generally Wood CJ at CL in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.

21. In summary, I consider that the objective seriousness of an offence of recklessly inflicting grievous bodily harm depends on the seriousness of the harm inflicted (generally, the result of the offence), and on the objective nature and circumstances of the offender's behaviour (generally, the offender's conduct). The offender's moral culpability for his or her conduct, and for the result of that conduct, and the significance of that culpability in determining the appropriate sentence are, in my view, appropriately considered in the context of the offender's subjective circumstances and separately from the determination of objective seriousness.

22. See also the remarks of Robinson AJ in The Queen v Ivan Torbert [2015] ACTSC 331 at [37].

23. The result of EL's behaviour, while certainly serious and of ongoing significance to his brother, is not the most serious kind of grievous bodily harm - for instance, the victim in the matter of Mitchell and Gallagher already mentioned suffered extensive brain injury as a result of the attack on him and was left in a vegetative state from which he would not recover.

24. EL's conduct in inflicting several blows and using a weapon for at least one of them was, however, also serious. I consider that his offence is of mid-range seriousness.

25. I have also had regard in this sentencing to EL's subjective circumstances.

26. He is now 28. His criminal history involves a substantial amount of minor offending since 2006, when he came to Australia as a refugee from the Sudan. There is a public nuisance offence recorded in Queensland, and in the ACT there are several breaches of the peace, two offences of damaging property worth less than $1,000, and also breaches of good behaviour orders, but more significantly there are two common assaults and two assaults occasioning actual bodily harm, committed in 2007, 2008 and 2011. That is, the current assault suggests a deterioration in EL's behaviour and a tendency to engage in increasingly serious acts of violence.

27. EL's background does provide a kind of explanation (although not an excuse) for his violent behaviour. When I sentenced EL in 2009 for one each of the previous assaults and assaults occasioning actual bodily harm, I said:

[EL] is now 22. He came to Australia from Sudan in 2006. He grew up during a period of war in Sudan, and found himself a "child soldier" in the Sudan People's Liberation Army. He witnessed the killing of his grandfather when he was only 12 years old; shortly after that his family left Sudan and in 2003 arrived (although without his father) in a refugee camp in Kenya, from which they eventually came to Australia.

It seems that [EL's] troubled childhood and cultural background largely explain his offending behaviour, although alcohol has also played a big part. [EL] said that he began drinking only after he came to Australia and soon began binge drinking. He says that he was extremely drunk at the time of the [earlier assault] offences.

...

[EL] received little formal schooling before coming to Australia, but since then he has successfully completed a course in introductory English at an ACT College and has also obtained a Responsible Service of Alcohol certificate.

28. At the time of the earlier sentencing, EL was an active member of St George's Anglican Church in Pearce and aspired to undertake a leadership role within the Sudanese community in the future. The earlier sentencing remarks noted:

Since arriving in Australia [EL] has been employed in several positions for extended periods. He left one job after a year because of continuing racism in his workplace and was later laid off after some months, along with some other workmates, from a specialised building firm as a result of a shortage of work for the firm. He hopes to resume work there after business improves. In the meantime, he is working for another specialist building firm.

29. Since then, EL has married a Sudanese woman who now lives with him in Australia, and they have three children. The family lives in government housing, and EL's wife speaks little English. It seems that their relationship is affectionate and supportive - the pre-sentence report author noted that although there are protection orders in place between EL and some of his other family members, there have been no such orders made involving EL and his wife. EL currently works only on a casual basis, but has indicated an interest in furthering his skills.

30. EL has some casual employment, and also receives Centrelink benefits which enable him to meet day-to-day expenses.

31. EL's wife speaks little English and relies on him for support in that respect. It would not be easy for her to manage the home and care for their three children without EL, especially since the ill-feeling between EL and his extended family suggests they are unlikely to offer support to his wife.

32. As already mentioned, alcohol has been involved in some of EL's previous offences. It seems that on the current occasion EL's brother was drinking alcohol, but EL was drinking only Red Bull; however, I understand that this is a high-caffeine drink, and it is possible that the caffeine exacerbated rather than moderated EL's response to what he saw as inappropriate behaviour by his brother.

33. Since EL was first psychologically assessed in 2008, he has had several further such assessments. Psychologist Ina Toumo'ua, who works at Companion House, reported in 2013 that EL displayed significant symptoms of Post-Traumatic Stress Disorder (PTSD), but did not qualify for a diagnosis of PTSD because, although he met five of the six criteria, he showed only one symptom listed for the sixth criterion, for which at least three symptoms needed to be shown.

34. In September 2013, the Companion House psychologist explained:

The symptoms of PTSD which [EL] exhibits are, however, pervasive and debilitating. He has been suffering from these for at least the last 7 years, or since his arrival to Australia. They include, intrusive thoughts and nightmares about past events and in particular the murder of his grandfather, intense psychological distress and physiological reaction on exposure to internal or external cues about the past events, avoidance of thoughts, feelings and conversations associated with the past, persistent increased arousal as indicated by difficulty in staying and falling asleep, outbursts of anger and exaggerated startle response.

[EL] has reportedly been especially affected by outburst[s] of anger or anger attacks, and ... particularly in instances of actual or perceived physical threat, a learnt response indicative of protracted trauma sustained in childhood.

35. Mr Van Meurs concluded in November 2015 that although EL was not then suffering clinically significant psychological symptoms, he was at the time of the offence experiencing symptoms consistent with PTSD. He went on:

More probably than not, ... [EL] did suffer an impaired ability to exercise proper judgment. When experiencing symptoms of trauma, an individual can often perceive benign circumstances as threats to their physical or emotional integrity, and the fight, flight, or freeze response is activated. [EL] acted out in a situation whereby he believed he was defending his own safety, whether this danger was objectively ... present or not. The same trauma threat response causes significant Amygdala and Limbic system activity, which is quite primal, and subsequently this causes one to become disinhibited, and to find it difficult to use the executive functioning systems of the mind used for calm and rational thinking. I do believe that it contributed to his conduct and offending behaviour, however to say it was the sole cause would be difficult to ascertain. The issues are complex. At a societal level he has been raised in a society that endorses violence as a means to resolve disputes, so at a larger level, these may be attitudes that could be either considered cultural, or potentially a product of the violence that he was witness to in his youth.

36. Mr Van Meurs said that continuing therapy would be important for EL, so that he can understand the triggers for hyperarousal and learn strategies to manage it. He recommended 12 to 18 sessions of counselling with a psychologist or psychiatrist.

37. I have no reason to believe that EL is resistant to ongoing counselling such as recommended by Mr Van Meurs, but I cannot see that he has any prospect of funding it privately (at a minimum cost of $200 a week, or perhaps a session) given his limited income.

38. General deterrence is clearly relevant to offences of this kind. Even accepting that EL's psychological difficulties go some way to explaining his behaviour, there is a clear ongoing need for him to be personally deterred from violent behaviour.

39. As already mentioned, EL pleaded guilty to this offence, but at the last minute. Nevertheless, even a late guilty plea has utilitarian value, and I shall provide a modest sentencing discount in recognition of that fact.

40. The Crown drew my attention to the sentences imposed in a number of other cases, being R v Amosa;[1] R v Freeman-Quay (No 3) [2015] ACTSC 284;[2] R v Seretin [2016] ACTSC 45;[3] The Queen v Ivan Torbert;[4] R v Williams [2015] ACTSC 406.[5]

41. At the sentencing hearing, I ordered that EL be assessed for an intensive correction order, since it seemed to me that his criminogenic factors as already outlined were exactly the kinds of issues that could be better addressed in the community, but with the threat of brief or extended imprisonment hanging over EL's head.

42. The assessment that I have now received identified him as unsuitable for an intensive correction order because of his ongoing alcohol abuse and other recent unacceptable behaviour that appears, as far as I can see, to be closely related to alcohol abuse.

43. It would be curious if intensive correction orders were only available to people who really did not need any help. Accordingly, I propose to make an intensive correction order in this case, and since it will be for a period of slightly more than two years, I note for the purposes of s 11(3) of the Crimes (Sentencing) Act 2005 (ACT) that I consider this order to be appropriate, having regard to the nature of the offence concerned, to the fact that a protection order in favour of the victim has now expired, but that a new one could presumably be obtained if any need for one emerges, to EL's claim that he does not associate with the family members with whom he is at odds, and to EL's culpability for the offence having regard to his mental health issues and, in particular, to the impact of his PTSD symptoms that I have already mentioned.

44. I note the recommended additional condition which is right at the end of the assessment: "Comply with conditions of any imposed Protection Orders"; I assume that means any protection orders made in favour of other people.

45. EL, stand please. I record a conviction on the charge of recklessly inflicting grievous bodily harm.

46. I now sentence you to imprisonment for two and a half years, reduced from three years to take account of your guilty plea. The sentence will run from today, so it will expire on, by my calculations, 19 January 2019. I order that you serve that sentence by way of an intensive correction order. The intensive correction order will be subject to the standard core conditions for intensive correction orders, and I note the advice from the assessor that if you were ordered to serve your sentence by way of an intensive correction order, the following issues would be targeted:

(a) alcohol abuse;

(b) family and relationships;

(c) mental health;

(d) attitudes; and

(e) anger;

and that you may be required to participate in ongoing alcohol use treatment and referral for further one-to-one counselling, counselling through Companion House, and referral to anger management treatment and cognitive-based therapy.

47. Further, in accordance with the recommendations, I order that the intensive correction order that I have made is also subject to a condition that you comply with the conditions of any protection order granted to anyone else against you. That means any order that requires you to keep away, or not to treat another person in a particular way. You understand that?

48. Now, EL, I am going to try and explain what the significance of this is to you, and I think you have already talked to the assessor about this. You have had this explained to you fairly carefully, is that right?

49. HER HONOUR: I expect you have probably also talked to Mr Sabharwal about it, but my understanding is that the sentence, as I say, will start to run today. It will run for two and a half years. If you comply with all your intensive correction order requirements, do as your supervisor tells you, participate in whatever they ask you to participate in, keep out of trouble and attend the counselling you are required to, and so on, then at the end of that two and a half years, you will have finished your sentence, and I think you understand, and I know this is going to be difficult for you, but I think you understand that will include no alcohol.

50. Now, if you commit another offence during that two and a half years that has got a prison sentence attached to it, even if you're not sentenced to imprisonment, you have to come back here and I will have to re-sentence you, and I think the expectation is that at that point you would be required to serve out the rest of your term in custody - not absolutely guaranteed, but you should assume that that's what would happen if you commit another offence with an imprisonment penalty.

51. Now, apart from committing offences, if you breach the order or the conditions or the directions of your supervisor, then there are various things that your supervisor or Probation and Parole or Corrective Services can do, starting with giving you warnings (and I understand you can't get more than three warnings in a 12-month period), moving up to putting you in prison for a short period, either 3 days or 7 days, just to remind you that this is serious.

52. Finally, if your supervisor or the probation authorities or the intensive correction authorities are completely dissatisfied with your behaviour and with your compliance, then the intensive correction order may be cancelled and you will then find yourself serving the rest of the sentence, so from that date until the date I've specified, in custody, without ever even coming back to the Court.

53. So you're really taking a big gamble here. If you do everything perfectly, you can expect not to go to gaol, and you can also expect, I hope, that in the course of that two and a half years you will get quite a lot of help to deal with the things that are causing you to offend. So that you should be expecting to get help, certainly with your alcohol problem, with your anger management, with your psychological problems, ideally I would hope some support in terms of employment and so on as well.

54. It's a good chance to try to turn yourself into a law-abiding citizen without having to go to gaol, but if you don't take that chance, if you mess it up, then you are likely to spend bits and pieces of time in custody in the prison, and you could even finish up serving however much of that two and a half years is left in the prison.

55. As I say, it's a real gamble, but it's something you can decide, whether you're going to take it seriously and take that chance.

I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.

[1] R v Amosa involved one offence of recklessly inflicting grievous bodily harm arising from a dispute at a nightclub. This was the second time Mr Amosa had been dealt with for similar offences. He was sentenced to 3 years and 9 months imprisonment with a non-parole period of 22 months.

[2] R v Freeman-Quay involved one offence of recklessly inflicting grievous bodily harm resulting from a single punch; the offender was also sentenced for two lesser assaults arising from the same altercation. He had no criminal history, and did not come from a disadvantaged background. He was sentenced to 2 years imprisonment, 7 months to be served in full-time custody.

[3] R v Seretin involved one offence of recklessly inflicting grievous bodily harm. The offender entered a late guilty plea. He was heavily intoxicated at the time of the offence, which arose from an altercation with an 82-year-old stranger while walking home. The victim sustained serious injuries through multiple applications of blunt force. The offender had no prior convictions and good prospects of rehabilitation. He was sentenced to 4 years imprisonment with a non-parole period of 20 months

[4] The Queen v Ivan Torbert involved one offence of recklessly inflicting grievous bodily harm. There was an "early" guilty plea. The offender had many prior convictions, but generally for minor offences. There was a diagnosis of Paranoid Schizophrenia and some history of violence. The offence was of medium-high objective seriousness. The offender's culpability was reduced due to mental health problems (underlying psychosis aggravated by drug abuse). The injuries would have a long-term impact on the victim. The offender was sentenced to 5 years and 3 months imprisonment with a non-parole period of 3 years.

[5] R v Williams involved one offence of recklessly inflicting grievous bodily harm. The offender attacked his brother who was intoxicated; he was on conditional liberty (being subject to a good behaviour order). The offender had an extensive criminal history including several assaults. No particular childhood disadvantage or mental illness was identified; there was evidence of some substance abuse but it was not relevant to his offence. He was sentenced to 3 years imprisonment with a non-parole period of 18 months.

(Sentencing) Act 2005

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