Supreme Court of the ACT|2015-09-04|Before: Murrell CJ

R v Freeman-Quay (No 3) [2015] ACTSC 284 (4 September 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Total sentence of 26 months' imprisonment, suspended after nine months upon the offender entering into a good behaviour order for 2 years. Fined $750.

CRIMINAL LAW - Sentence - particular offences - offences against the person - causing grievous bodily harm - assault occasioning actual bodily harm - common assault - general deterrence

R v Amosa [2015] ACTSC 34

R v Barbaro (Unreported, Supreme Court of the ACT, Penfold J, 17 June 2010)

R v Byrne [2015] ACTSC 113

R v Freeman-Quay (No 1) [2015] ACTSC 262

R v Loveridge [2014] NSWCCA 120

R v Neish (Unreported, Supreme Court of the ACT, Refshauge J, 24 May 2013)

R v Obradovic (Unreported, Supreme Court of the ACT, Burns J, 23 December 2013)

R v Srikandakumar (Unreported, Supreme Court of the ACT Murrell CJ, 8 April 2014)

SCC 5 of 2014; SCC 51 of 2015

1. The offender pleaded not guilty to the charge that on 21 September 2013 he recklessly inflicted grievous bodily harm on Matthew Pridham, contrary to s 20 of the Crimes Act 1900 (ACT) (Crimes Act). By operation of s 49 of the Crimes Act the offender was charged with the alternative offence of causing grievous bodily harm, contrary to s 25 of the Crimes Act. The offender pleaded guilty to an associated offence that on 21 September 2013 he assaulted Ray Reynolds and occasioned him actual bodily harm, contrary to s 24 of the Crimes Act. A charge of common assault on Ronnie Burt on 21 September 2013, contrary to s 26 of the Crimes Act, was transferred from the Magistrates Court to be dealt with at the same time.

2. The trial on the charges of recklessly inflicting grievous bodily harm and common assault proceeded by way of a judge alone trial in May and July 2015. On 31 August 2015, I returned a verdict of not guilty of recklessly inflicting grievous bodily harm on Mr Pridham but guilty of causing grievous bodily harm to Mr Pridham. I also found that the offender was guilty of common assault on Mr Burt: R v Freeman-Quay (No 1) [2015] ACTSC 262

3. The offender is to be sentenced for three matters:

(a) Causing grievous bodily harm to Mr Pridham. The maximum available penalty is five years' imprisonment.

(b) Assault occasioning actual bodily harm to Mr Reynolds. The maximum available penalty is five years' imprisonment.

(c) Common assault on Mr Burt. The maximum available penalty is two years' imprisonment.

4. The factual findings are more fully set out in my reasons for decision of 31 August 2015: R v Freeman-Quay (No 1).

5. Briefly, in the early hours of Saturday, 21 September 2013, the offender and two friends, Mr Bower and Mr Stevens were in the Civic area of Canberra City. They encountered another group comprising Mr Pridham, Mr Reynolds, Mr Burt and others. Mr Pridham spoke to the offender. His words were not well received by the offender. Mr Burt sought to intervene. The offender walked up behind Mr Burt, seized the back of his "hoodie" and pulled Mr Burt backwards. This constituted the offence of common assault on Mr Burt. The offender then walked back towards Mr Bower. At that stage, Mr Stevens was elsewhere.

6. Within a very short space of time, there was a brief "standoff" between the offender's group and the victims' group, followed by a very brief scuffle in which Mr Pridham was actively involved. At one stage Mr Pridham attempted to head-butt Mr Stevens. The offender then delivered a forceful punch which impacted with Mr Pridham, causing Mr Pridham to fall to the ground. This constituted the offence of causing grievous bodily harm to Mr Pridham. After Mr Pridham commenced to fall, the offender punched Mr Reynolds in the face causing not insignificant soft tissue injury. This constituted the offence of assault occasioning actual bodily harm to Mr Reynolds. The offender left with his companions.

7. I found that the offender intended to engage in the conduct of punching which, as it transpired, caused grievous bodily harm to Mr Pridham. The offender engaged in the physical action of drawing his body and arm back, and then advancing with a powerful punching motion. At the time, the offender was more or less facing Mr Reynolds, whom he struck very shortly thereafter. Mr Pridham was very close to both men.

8. I was not satisfied beyond reasonable doubt that it was the intention of the offender to strike Mr Pridham. There was a reasonable possibility that the punch that injured Mr Pridham was targeted at Mr Reynolds. However, I found that the proximity of Mr Pridham meant that the act of the offender was at least negligent. On that basis, the offender was convicted of the alternative charge of causing grievous bodily harm to Mr Pridham.

9. The Court received a number of victim impact statements. These were read either by the relevant victim or by the prosecutor.

10. The Court received no expert evidence about the harm suffered by the victims. However the matters to which they referred in their statements were virtually matters of common knowledge.

11. It was agreed that Mr Pridam suffered severe brain damage. Prior to 21 September 2013, Mr Pridham was an independent young man. He had a good job and appeared to have a promising future. He enjoyed a good social life and was in a committed relationship with his girlfriend. They were about to start living together.

12. Immediately after the incident, Mr Pridham was conveyed by ambulance to Calvary Hospital where he was maintained on life support. Soon after he arrived at Calvary Hospital, he was transferred to Canberra Hospital, where he remained in an induced coma for several weeks. He underwent emergency neurosurgery in an attempt to relieve the pressure on his brain. For a time, his life hung in the balance. Unsurprisingly, Mr Pridham's parents, girlfriend and immediate family were very traumatised when they heard about the incident. They attended the hospital and remained at Mr Pridham's bedside for weeks, until he came out of the induced coma.

13. In November 2013, Mr Pridham was transferred from Canberra to the Brain Injury Rehabilitation Unit at Liverpool Hospital. He remained there for approximately seven months before returning to the Rehabilitation Ward at Canberra Hospital. While he was at the Brain Injury Rehabilitation Unit he was very disabled. He was completely dependent upon nursing staff. The right side of his body was paralysed. He was confused and anxious. While Mr Pridham was at the Brain Injury Rehabilitation Unit, his family rented a nearby apartment so that Mr Pridham's mother could attend the hospital frequently. Other family members commuted to Sydney in order to visit Mr Pridham. The apartment rental and the expenses of transportation imposed a significant financial cost on Mr Pridham's family. Mr Pridham Snr was self-employed and there was a significant financial impact upon his earning capacity.

14. When Mr Pridham returned to Canberra Hospital, he was wheelchair dependent. He remained there for several months before going home. Since returning home, Mr Pridham has continued to recover, albeit slowly. He is still very seriously disabled and he will have permanent serious disability. He has had to re-learn behaviour such as talking, reading, writing and even picking objects up. He has progressed to the point where he can walk for short distances with a walking stick. However he continues to manifest the effects of a significant brain injury. He has problems with short term memory and inappropriate behaviour. He has partial hearing loss which is to be addressed by an operation. However, his mother understands that the operation will not fully resolve the hearing loss.

15. The offence had a severe psychological impact on all family members. Mr Pridham's girlfriend described significant symptoms of depression.

16. The Court acknowledges the trauma suffered by Mr Pridham, his family, girlfriend and other friends, and by the other victims and those close to them.

17. These proceedings are not designed as a form of retribution for the harm suffered by Mr Pridham, the other victims, their families and friends. The Court must impose appropriate punishment and address the other sentencing purposes in s 7 of Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

18. Two aspects are to be considered when assessing the objective seriousness of the offence of causing grievous bodily harm to Mr Pridham. They are the nature of the behaviour in which the offender engaged and the associated moral culpability, and the nature of the grievous bodily harm that was suffered by the victim: R v Amosa [2015] ACTSC 34 at [20].

19. With respect to the behaviour of the offender and the associated moral culpability, I accept the prosecution's submission that it was not just a case of one isolated punch but rather an episode of aggression (albeit an episode of relatively brief duration) in which the delivery of the critical punch was only one aspect. The aggression started when the offender tugged at Mr Burt's "hoodie" and finished when the offender committed the offence of assault occasioning actual bodily harm to Mr Reynolds.

20. I was left in a reasonable doubt as to whether the punch that resulted in the harm to Mr Pridham was targeted at Mr Pridham or Mr Reynolds. The fact that the punch was targeted (and I will assume for present purposes that it was targeted at Mr Reynolds), means that the offender's conduct was of significant seriousness. The incident is yet another example of alcohol fuelled gratuitous violence perpetuated by young men who are grossly intoxicated in the Civic area of Canberra.

21. I turn to consider the harm suffered by the victim. It was in the worst category. He is a young man who almost died. He is left with very severe and permanent disability. I did not find that the punch caused the harm. In whole or in part, the harm may have resulted from the impact of Mr Pridham's head with the pavement.

22. I was not impressed by the fact that immediately after committing the offences against Mr Pridham and Mr Reynolds the offender left the scene. The Court viewed CCTV material that showed the offender departing rapidly from the scene in the company of his friends. It must have been obvious to him by the time that he left that Mr Pridham had been seriously injured. It would have been much more appropriate for him to remain at the scene and render assistance or at least express concern. He is not being punished for his attitude, but his subsequent conduct does evidence his negative state of mind on the night in question.

23. The offence of assault occasioning actual bodily harm to Mr Reynolds was a serious offence. It was not one isolated punch. As discussed above at [19], it was the third of three aggressive acts by the offender.

24. The offender was 24 years old at the date of the offences. He had no relevant prior criminal history. Subsequent to the offence, in March 2015 he was sentenced for an offence of damaging property that occurred in February 2015 and placed on an 18 month good behaviour order. The order was subject to supervision. Supervision was terminated early in July 2015 because further supervision was considered to be unwarranted.

25. As he had no relevant prior criminal history at the time he committed the offences, the offender is to be sentenced as a person of prior good character. His otherwise good character is confirmed by character evidence (see below).

26. The offender is one of three children. He was raised in Melbourne and Hay. His parents live in Melbourne. He has two siblings. When he was in Year 10, he came to Canberra on a football scholarship and played for the Canberra Raiders.

27. The offender moved from Canberra to Albury a couple of months ago. He works full time as a carpenter. His current employer and others describe him as a trustworthy and responsible person, a committed rugby player, a person with a good work ethic and someone whose standard of work is very high.

28. The offender has a strong involvement with the Albury Rugby League Football Club. At the Club he engages in a program that teaches younger men and adolescent boys about the risks associated with alcohol, including alcohol fuelled violence.

29. The offender had a de facto relationship, but the relationship terminated as a result of the incident that was the subject of the March 2015 proceedings. The offender maintains contact with his former partner. There is a daughter of the relationship. She resides with her mother but there is friendly arrangement whereby the offender has custody every second weekend. Character referees referred to the close relationship the offender enjoys with his daughter.

30. The offender has expressed remorse and regret for his conduct, both to acquaintances and friends and in Court. As the prosecution submitted, it is difficult to understand the offender's aggression. It is not explicable by reference to a disadvantaged background.

31. The incident in February 2015 was another example of aggressive behaviour. As a result of that incident, the offender consulted the Canberra Men's Centre. He attended four times and received assistance in relation to anger management and heavy drinking. The precise treatment and counselling that occurred at the Men's Centre is not clear. The Court was not told about any other treatment or counselling.

32. The Court was referred to the ACT Sentencing Database. There are few relevant matters recorded and therefore the statistics are of little assistance.

33. The Court was referred to several cases that were of considerable assistance. These cases included R v Byrne [2015] ACTSC 113, R v Srikandakumar (Unreported, Supreme Court of the ACT, Murrell CJ, 8 April 2014), R v Barbaro (Unreported, Supreme Court of the ACT, Penfold J, 17 June 2010), R v Neish (Unreported, Supreme Court of the ACT, Refshauge J, 24 May 2013) and R v Obradovic (Unreported, Supreme Court of the ACT, Burns J, 23 December 2013).

34. The Court was also referred to the New South Wales Court of Criminal Appeal decision of R v Loveridge [2014] NSWCCA 120 with respect to general principles. That was a very different case; it involved a charge of manslaughter. The associated charges must be considered in the context that they were in the shadow of the primary charge.

35. The decision of Byrne is factually the most comparable to the present case. The offender received a 12 month suspended sentence after a "moderate discount", the quantification of which was not stated. He had spent seven months in custody. However, as counsel for the offender submitted, that occurred prior to the matter coming on for sentence. Of necessity, it was taken into account.

36. In sentencing the offender, the Court is required to consider the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of general deterrence and denunciation loom large in this case. Unfortunately "one punch" attacks in public places by young men who are grossly intoxicated are common. They arouse the abhorrence of the community. They place vulnerable people (including other intoxicated people) in danger. They cry out for a strong message of general deterrence. The sentencing purposes of accountability and protection of the public are important for similar reasons.

37. I accept the submission of counsel for the offender that personal deterrence is not at the forefront in this case. No doubt these proceedings will be a very considerable personal deterrent to the offender. With respect to rehabilitation, to date little has been attempted. However, the offender's relatively trouble free upbringing, his association with sport (which presumably has required considerable personal discipline) and the absence of any other significant criminal history suggest that he is capable of rehabilitation.

38. It is accepted that, with respect to the offence against Mr Pridham, the only appropriate sentence is one of imprisonment and the real issue is the manner in which that sentence should be served.

39. In my view, the objective seriousness of the offence dictates that there be a period of full-time imprisonment. The other circumstances also allow for the suspension of a significant part of the sentence upon the offender entering into a good behaviour order.

40. The offender is convicted of each of these offences.

41. For the offence of common assault on Mr Burt, the offender is fined the sum of $750. The offender has 28 days to pay the fine.

42. For the offence of assault occasioning actual bodily harm to Mr Reynolds, after discounting the sentence for the plea of guilty by about 25%, the offender is sentenced to six months' imprisonment. But for the plea, the sentence would have been 8 months' imprisonment. The sentence is to be served by full-time imprisonment from 4 September 2015 until to 3 March 2016.

43. For the offence of causing grievous bodily harm to Mr Pridham, the offender is sentenced to two years' imprisonment from 4 November 2015.

44. This results in a total sentence of 26 months' imprisonment.

45. The sentence for the offence of causing grievous bodily harm will be served by way of full-time imprisonment until 3 June 2016. Thereafter the sentence will be suspended upon the offender entering into a good behaviour order for a period of two years. The good behaviour order will be subject to the condition that the offender report to ACT Corrective Services within two working days of release from custody and submit to their supervision for as long as they consider necessary.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

(Sentencing) Act 2005

R v Freeman-Quay

At a glance

Court

Decision date

Before

Catchwords

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Judgment (63 paragraphs)

R v Freeman-Quay (No 3) [2015] ACTSC 284 (4 September 2015)

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Legislation Cited (2)