R v Hidic [2017] ACTSC 307

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - offences against the person - recklessly inflict grievous bodily harm - one punch attack - team sport - whether and to what extent sentence should include period of full-time imprisonment - nature of intensive correction orders

Crimes (Sentencing) Act 2005 (ACT) ss 7, 11(3), 33, 110

Hili v The Queen [2010] HCA 45; 242 CLR 520

R v Amosa [2015] ACTSC 34

R v EL [2016] ACTSC 241

R v Myles [2017] ACTSC 194

R v Pham [2015] HCA 39; 256 CLR 550

R v Sharma [2016] ACTSC 180

R v Smith [2016] ACTSC 330

Sharma v the Queen [2017] ACTCA 8

1. On 14 July 2017, a jury found that the offender had recklessly inflicted grievous bodily harm on the victim, contrary to s 20 of the Crimes Act 1900 (ACT) (Crimes Act).

2. The maximum penalty for an offence against s 20 is 13 years' imprisonment.

3. On 16 December 2015, the offender and the victim played a game of futsal at the Australian National University. They were members of competing teams; the victim was a member of the Big Ball team and the offender was the goalkeeper for the Kolo Football Club (Kolo FC).

4. As the game progressed, the play became rough. There were heated exchanges between the offender and the number 7 player for the Big Ball team. Two Kolo FC spectators, who were friends of the offender, became involved. Others then joined in the aggressive verbal exchange. The victim did not engage in the exchange.

6. As the victim was walking towards the exit, he realised that a scuffle had developed behind him that involved his team mates and younger brother. He turned back. He saw that a Kolo FC supporter was fighting a Big Ball player. The victim grabbed the Kolo FC supporter from behind in a bear hug and began to pull him away from the Big Ball player in an attempt to separate the two men.

7. The offender saw the victim holding his friend. He ran up and punched the victim in the face. The victim did not see the offender's approach, nor did he anticipate the punch. The victim fell to the ground and assumed a foetal position, covering his head. He feared for his life. He felt extreme pain and nausea. He sensed that some of his teeth were damaged. There was blood running down his face.

8. Almost as soon as the victim was hit, the melee ceased. The offender departed immediately.

9. The offender did not approach police until 1 February 2016, when he came forward because he felt "scared" and "guilty". The offender had learned that police had spoken to a friend who was at the futsal game. When interviewed by the police, the offender said, "I don't know if [the victim] was holding him back or if he was fighting him." He said that he had not seen the victim hitting anyone, just "grabbing" his friend. He had hit the victim above the eye, "just in the adrenaline, in the moment. I didn't know what was happening." The offender said that he had "clipped [the victim] really good". He said that everyone had been fighting, he was "just swinging away" and "was just in that mindset that I was being beat up, self-defence comes in." He also said that he felt badly about his conduct and had asked his cousin to check whether the victim had recovered.

10. At the trial, the offender conceded grievous bodily harm and relied upon a defence of defending another. The prosecution submitted that, subjectively, the offender could not have genuinely believed that the victim posed a significant danger to his friend; throughout the night, the offender had been "looking for a fight" and it must have been obvious to him that the victim was merely restraining his friend. Further, the offender's conduct of punching the victim's face was not a reasonable response to any perceived threat to the offender's friend.

11. The victim was taken to Calvary Hospital, where he was kept overnight. He was diagnosed with an orbital floor fracture (a fracture to the eye socket). The fracture caused the victim's eye to appear sunken and significantly affected his presentation. He also sustained three chipped teeth, bruising and a four centimetre laceration to the cheekbone that required stitches.

12. The victim experienced significant pain and discomfort for some weeks. He took six weeks off work to recover, exhausting his leave entitlements.

13. The victim's driver's licence was suspended because he was experiencing double vision. The associated loss of independence, combined with the injuries, made the victim feel depressed.

14. The victim underwent dental work at a cost of more than $2000.00. Two teeth were capped. The victim has to be careful with what he eats so as to avoid damaging the caps.

15. In October 2016, the victim underwent ocular surgery. He took a further significant period off work to recover. Prior to the surgery, the victim was self-conscious about his sunken eye socket and avoided socialising. He was suffering from this condition on his wedding day.

16. The victim achieved a good recovery cosmetically. However, even since the surgery, the victim has felt that his eye is not completely normal. He still has some vision impairment in terms of colour perception, restricted movement and a loss of sensation in the facial area. It is hoped that the disabilities will gradually improve.

17. Since undergoing surgery, the victim has regained a probationary driver's licence, but does not have a full licence.

18. The victim continues to suffer negative psychological effects from the incident. He says that he will not return to playing futsal, although he has continued to play soccer.

19. The offence had a significant financial impact on the victim. The prosecution and defence agreed that an appropriate reparation order would be $13,536.20.

20. It is well established that the two key matters to be considered when assessing the objective seriousness of offences of this type are, first, the culpability of the offender's conduct and, second, the relative seriousness of the grievous bodily harm sustained by the victim: R v Myles [2017] ACTSC 194 (Myles); R v Sharma [2016] ACTSC 180; R v Amosa [2015] ACTSC 34; R v Smith [2016] ACTSC 330; R v EL [2016] ACTSC 241.

21. During the game, the offender's conduct involved aggression that went beyond the level of aggression that is acceptable in competitive sport at any level. Although I do not think it likely, it is reasonably possible that, in his excitable and aggressive psychological state, the offender misinterpreted the victim's conduct and thought that the victim was behaving aggressively towards his friend. However, the offender's conduct of punching the victim's face was not a reasonable response to any perceived threat to the friend. The offender's culpability is not significantly mitigated by the fact that he may have perceived there to be a threat, because any such perception undoubtedly arose because the offender had allowed himself to become unacceptably aggressive during the game.

22. The defence submitted that the offender's circumstances render him less culpable than one punch offenders whose offences are fuelled by alcohol. I do not accept that submission. Like offenders whose offences are fuelled by alcohol, the offender permitted himself to get into a state (in this case, a psychological state) where he was more likely to behave in an unacceptable manner. In other words, he permitted his inhibitions to become lowered.

23. The injury that was caused to the victim was serious. Any injury to the eye is a serious matter. However, it was not towards the upper end of the spectrum of seriousness, bearing in mind that, by definition, all injuries that amount to grievous bodily harm are really serious.

24. The offender is 23 years old. At the time of the offence, he was 21 years old.

25. The offender is of Bosnian descent. He was raised in Canberra in a loving and supportive family. He continues to enjoy good relationships with, and strong support from, family members.

26. The offender completed Year 12. At school he was a keen athlete. He has completed a diploma in sports management and attained Certificates III and IV in personal training, as well as a Certificate III in painting and decorating.

27. Currently, he works full-time as an apprenticeship painter and decorator in his father's business, working around 38 hours per week. In addition, as part of the apprenticeship, he is required to attend the Canberra Institute of Technology (CIT) three days per month. He has part-time employment as a personal trainer and receptionist at a gymnasium.

28. The offender no longer engages in team sports because he fears that his competitive nature may cause him to engage in risky behaviour such as the offending behaviour. He wishes to re-engage with karate as he believes that it would help him remain calm and disciplined, even under pressure, and that this may support a return to team sports. This approach demonstrates some insight.

29. The offender is being treated for a rare genetic condition that first manifested itself in life-threatening acute liver failure in 2014. After intensive treatment the offender recovered from the acute symptoms, but will require lifelong specialist treatment for his condition.

30. The offender has now accepted responsibility for his offending behaviour and has indicated that he would like to apologise to the victim.

31. The offender gave evidence expressing his remorse. The offender failed to demonstrate remorse immediately after the offence, even though the victim had fallen to the ground and was bleeding. However, when he spoke to police about 6 weeks later in February 2016, the offender indicated some remorse. Referees have confirmed that the offender is remorseful and has learnt a lesson.

32. Referees describe the offender's aggressive behaviour as out of character. They know him as a happy, caring, reliable and respectful young man. They note that, since the offence, he has been more reserved and less socially engaged.

33. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.

34. The Court sentences in the context of the sentencing purposes in s 7 of the Sentencing Act. "One punch" attacks by young men that cause significant injury to victims are all too common and the sentencing purpose of general deterrence requires the imposition of a significant sentence.

35. Accountability, denunciation and recognition of harm to the victim are also important sentencing considerations.

36. Rehabilitation is an important consideration having regard to the offender's youth and otherwise good character. However, it is not uncommon for offenders who participate in "one punch" attacks to have no prior criminal history and be persons of otherwise good character.

37. The only appropriate sentence is one of imprisonment. The defence made that concession. The question is whether, and to what extent, it is necessary for the sentence to include a period of full-time imprisonment to appropriately reflect the sentencing purposes of general deterrence, accountability, denunciation and recognition of harm to the victim.

38. The Sentencing Database statistics show that, of 27 offenders convicted of offences against s 20 of the Crimes Act, just over fifty per cent received a sentence of full-time imprisonment and 15 per cent received a partially suspended sentence. Generally, the sentences of full-time imprisonment were in the range of two years and six months' imprisonment to four years and six months' imprisonment.

39. However, those bare statistics provide limited assistance: see, e.g., R v Pham [2015] HCA 39; 256 CLR 550. The number of offences included in the statistics for this offence is relatively low and, more importantly, the statistics do not provide information about why the sentences were fixed as they were in each case: Hili v The Queen [2010] HCA 45; 242 CLR 520.

40. Two recent cases from this jurisdiction provide some form of "yardstick" in relation to this sentencing exercise.

41. In Sharma v the Queen [2017] ACTCA 8, the Court of Appeal dismissed the appellant's appeal against a sentence of two years and three months' imprisonment (reduced from three years' imprisonment for the plea of guilty) of which the appellant was to serve nine months, with the remaining 18 months to be suspended. The appellant had been observing an argument between two men. He then clenched his fists, adopted a fighting stance and threw a single punch which connected with the right side of the victim's jaw, knocking him unconscious. The victim suffered a fracture of his lower jawbone which required the insertion of screws and a plate. He was absent from work for two to three months. At the time of the offence the appellant was 20 years old. He was a student, churchgoer and charity worker who was of otherwise excellent character.

42. In Myles, the offender impulsively delivered a single, strong punch to the victim's jaw in circumstances where there was no provocation whatsoever. The attack caused two jaw fractures that required the insertion of screws and plates. The victim suffered significant psychological sequelae. At the time of the offence, the offender was 23 years old. He self-identified as an alcoholic and had voluntarily undertaken treatment. He was very remorseful. He had no significant criminal history and was of otherwise excellent character. From a starting point of two years and six months' imprisonment, I imposed a sentence of one year and 10 months' imprisonment. With some hesitation, and after reflecting on the matter for a week (during which time bail was refused), I directed that the sentence be served by intensive correction in the community. I imposed a community service condition requiring that the offender undertake 249 hours of community service work within 12 months (the maximum period of community service work that could be imposed, given the length of the sentence).

43. In this case, I consider that the appropriate period for a sentence of imprisonment is between two years and six months' imprisonment and three years' imprisonment.

44. The defence submitted that the sentence should be fully suspended. I do not accept that submission. In my view, a fully suspended sentence would not address relevant sentencing purposes of general deterrence, accountability, denunciation and recognition of harm to the victim.

45. I would consider imposing an intensive correction order (ICO) with a community service condition. However, I also consider that, because of the objective seriousness of the offence, the offender should serve a period in custody.

46. In order to enable an ICO assessment to occur, I adjourn the matter to October. During that period, bail is refused.

47. The ICO assessment report (the report) assessed the offender as suitable for an ICO with a community service work condition. The offender signed an undertaking to comply with the obligations of an ICO.

48. The report recommended that the order contain additional conditions requiring the offender to be referred to an anger management program and to a psychologist to "discuss his custody experience", and to not (directly or indirectly) assault, harass, threaten or intimidate the victim. I consider that it is more appropriate for these matters to be dealt with by the offender's case manager. However, I note that treatment for anger management is important given the circumstances leading to the commission of the offence and the insights expressed by the offender into his problem with anger management.

Due to the offender's low risk level it is recommended that sentencing Mr Hidic to an ICO would be over servicing him, and as a result may increase his risk of re-offending. Therefore, it is recommended that Mr Hidic be considered for a good behaviour order as outlined below.

50. This statement reflects a misunderstanding of the purposes of sentencing and the place of an ICO in the sentencing hierarchy. An ICO sits just below a sentence of full-time imprisonment and well above a good behaviour order. The legislature envisaged that an ICO would be an onerous sentence of imprisonment, albeit one that is served in the community, and would reflected purposes including punishment and general deterrence.

51. This is a case where, because of the objective circumstances, an appropriate sentence is either one of full-time imprisonment or an ICO. The imposition of a good behaviour order is not appropriate.

52. The Crown submitted that, as the offender was assessed as having no significant risk factors, an ICO would be inadequate to address the primary sentencing purposes of general deterrence and punishment, as well as other considerations such as recognition of harm to the victim.

53. I have some sympathy with the Crown's submissions. However, I believe that, by including an onerous community service work condition in the ICO, the Crown's concerns can be adequately addressed. Further, it would be erroneous to effectively increase a sentence from one served by way of ICO to one served by full-time imprisonment because the offender did not have sufficient "issues" requiring rehabilitation to justify an ICO. As mentioned, although an ICO is a useful mechanism to facilitate rehabilitation, it is also designed to address other sentencing purposes, such as accountability, denunciation and general deterrence.

54. On 25 August 2017, I formally convicted the offender. I made a reparation order requiring the offender to pay reparation in the sum of $13,560.20 by way of instalments of $500.00 per month, commencing on 1 October 2017.

55. On that occasion, I indicated a sentence of two years and nine months' imprisonment. Because the offender has now spent almost two months' in full-time custody (bail refused), I will reduce the sentence by two months.

56. I impose a sentence of two years and seven months' imprisonment.

57. I order that the sentence be served by way of intensive correction in the community. I make this order having considered that it is appropriate to do so having regard to the matters in s 11(3) of the Sentencing Act.

58. In addition to the core conditions, the intensive correction order is to include:

(a) A community service condition that the offender perform community service work for 300 hours;

(b) A condition that the offender comply with all requests that he pursue programs and interventions recommended by ACT Corrective Services;

(c) A condition that he report to ACT Community Corrections by 4.00 pm today.

I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.