R v Kepaoa [2017] ACTSC 414

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - recklessly inflict grievous bodily harm - common assault - offender intoxicated - repeated punches to the face and jaw - early plea of guilty - full admissions to police - low risk of reoffending - no penalty other than imprisonment appropriate - Intensive Corrections Order Assessment ordered

R v Dunn [2017] ACTSC 227

R v EL [2016] ACTSC 241

R v Hidic [2017] ACTSC 307

R v Myles [2017] ACTSC 194

R v Sharma [2016] ACTSC 180

1. The offender, Elesakepaoa Kepaoa, has pleaded guilty to one charge of recklessly inflicting grievous bodily harm.

2. There is also a charge of common assault that was transferred as a related charge pursuant to s 90B of the Magistrates Court Act 1930 (ACT).

3. The maximum penalty for the offence of recklessly inflict grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) is 13 years' imprisonment.

4. The maximum penalty for the offence of common assault contrary to s 26 of the Crimes Act is two years' imprisonment.

5. At about 3:00am on Sunday 23 April 2017 the offender and his group of friends were in the Mooseheads pub and nightclub on London Circuit, Civic, ACT. Also at the nightclub was the victim of the indictable offence and a group of his friends. The victim was the designated driver for the evening and was not consuming alcohol.

6. The offender and his friends became involved in an altercation with the victim and his group of friends that involved some pushing and shoving.

7. As a result of the interaction the victim and his group of friends left the Mooseheads nightclub and started walking in the direction of Cube Nightclub located in Petrie Plaza, Canberra ACT.

8. As they were leaving Mooseheads, the victim approached the security guard positioned on the staircase and told him that a fight was about to break out and that they were trying to leave.

9. Neither the offender nor the victim were involved in the initial altercation.

10. As the victim and his friends were walking in the direction of Cube Nightclub and past the pizza stand located on London Circuit, the victim looked back and saw that the offender together with his group of friends had also exited Mooseheads and were looking around.

11. CCTV footage from the Bourbon Street Kitchen located on the corner of London Circuit and East Row, shows that the offender and his group of friends caught up with the victim and his group of friends very shortly thereafter. They again became involved in an altercation.

12. The CCTV footage shows the offender approaching a woman who appears to be a part of the group associated with the victim of the indictable offence and, using both hands, pushing her aggressively from behind. At the time she was walking with an unknown male away from the area with a female friend.

13. The force of this push caused her to stumble forward and lose her balance. The offender's actions caused her to cry as she felt scared and upset. This incident gives rise to the common assault charge (CC2017/5207).

14. The victim of the indictable offence intervened between the woman and the offender and attempted to hold the offender. A short struggle followed. The offender used his right hand to punch the victim in the face with an "uppercut" type of punch. The victim stumbled backwards.

15. The offender then stepped backwards, readjusted his jumper and approached the victim again, punching him in the face with a closed fist.

16. The effect the offender's punches was that the victim stumbled backwards and hit the glass window of the Bourbon Street Kitchen before slumping to the ground.

17. As the victim was being helped to his feet by a number of bystanders, the offender came back and punched the victim again with another closed-fist uppercut, hitting the victim in the face/jaw area. The victim walked away from the offender without retaliating and bleeding from his mouth.

18. The victim attended the Canberra Hospital and was treated for a broken jaw. He was admitted and discharged three days later. During that time he underwent surgery under general anaesthetic to realign his jaw, a process which involved the placement of wires plates and screws. There was also a minimally displaced fracture between tooth 33 and tooth 34 which required further screw fixation of the upper and lower jaws. There was a minimally-displaced fracture to the left base of the anterior nasal spine. There was a mucosal break in the oral cavity which resulted in surgical emphysema.

19. No victim impact statement was tendered. There was no evidence of any ongoing consequences of the injuries to the victim.

20. The offender made full admissions on 5 May 2017.

21. The offender has no criminal history in the Australian Capital Territory and in New South Wales he was dealt with under the provisions relating to non-conviction bonds for drink driving and being an unaccompanied learner driver.

22. The personal circumstances of the offender are disclosed in the Pre-Sentence Report. He is 28 years old. He was born in Samoa. At the age of five he moved to New Zealand. He had an uneventful childhood. He relocated to Australia in 2013 following the breakup of a four-year relationship which produced two children. His ex-partner lived in Australia with the children. He has resumed contact with them. He has been in his present relationship for approximately two years. He and his partner live in private rental accommodation.

23. The offender completed Year 12. In New Zealand he worked in the tourism industry. In Australia he has been employed in labouring positions. His employer speaks highly of him. He is required to travel frequently for work.

24. His partner advised that the offender did have one antisocial friend but that relationship has now been ended. The alcohol use disorder identification test identified that he consumes alcohol at a risky or hazardous level.

25. The offender did not recall the offences due to his level of intoxication but agreed as to what had occurred and expressed his disgust at his actions and confusion as to why he would act in that way. He expressed appropriate victim empathy and said he would like to apologise for his actions. He has written but not sent a letter of apology to the victims.

26. He is assessed as being at a low risk of general reoffending because of multiple protective factors including stable employment and accommodation, positive familial relationships, the absence of financial issues and a generally "prosocial" peer network. He is assessed as not suitable for a community service work condition.

27. A referral for restorative justice was made and the report returned following that referral indicated that restorative justice was not suitable at that time. However, his willingness to engage in the process is a matter which is in his favour

28. He tendered three references. The first is from his partner who is a preschool teacher. It indicates that the offender was upset and disturbed after being shown the footage of his conduct. It indicates that he is generally a softly spoken "gentle giant" and that he is generous to others. A reference from Corporal Nathan Harrop indicates that the Corporal has known the offender for six years through playing in a rugby union team. It indicates the offender works as a telecommunications installation technician and is trustworthy, responsible and compassionate. It indicates that he is generally responsible with alcohol and respectful of others.

29. A reference from a representative of his employer, Stuart Bromley, indicates that he has been "extremely reliable, hard-working, polite and trustworthy". It indicates he is a strong and gentle and friendly person and it gives an example of his intervention in a work situation that had significant potential to turn violent. It indicates that Mr Bromley considers that the offending conduct was out of character and that the offender is remorseful.

30. It is an unfortunate but common fact that strong young men who are otherwise responsible citizens behave like barbarians when out in Civic and heavily under the influence of alcohol. The prevalence of young men drinking to excess at licensed drinking institutions and then becoming violent is so common and the consequence is so adverse that there must be, in any sentence for an offence such as the present, a strong element of general deterrence.

31. The present case involved a relatively minor assault directed to a young woman who was minding her own business. Clearly it is conduct which should be condemned. It is however conduct at the low-to-mid range of objective seriousness for a common assault.

32. The second assault which is in fact a wrapped-up charge incorporating three punches to the head of the victim resulting in the injuries described above was clearly very serious because it involved an attack to the head sufficient to cause damage and it was repeated in circumstances where the risk of very serious injury was high. I assess it as being in the mid-range of objective seriousness for this offence.

33. In relation to the first assault, that is the common assault on the female victim, having regard to the lack of any criminal history on the part of the offender and his otherwise good character I consider that it may be disposed of with a conviction and a Good Behaviour Order for a period of 24 months.

34. So far as the second assault is concerned, it is well established that the key matters to be considered when assessing the objective seriousness of this offence are the culpability of the offender's conduct and the relative seriousness of the grievous bodily harm sustained by the victim: As I have indicated, I have assessed this case as being in the mid-range of objective seriousness..

35. There are a number of decisions of this Court relating to offenders who inflicted grievous bodily harm on their victim.

36. In R v Dunn [2017] ACTSC 227 the offence involved a punch to the head causing permanent damage to the complainant's eye resulting in a substantial permanent impairment of vision that had long-term consequences for the victim and which occurred in the presence of police where the offender had a history of previous violent conduct. A sentence of 27 months was imposed which was suspended after 11 months.

37. In R v EL [2016] ACTSC 241 the offender had picked-up a wooden fence paling and hit the complainant which resulted in extremely severe life-threatening injuries to his head. The offender had been a child soldier in Sudan and had an extremely troubled childhood. He had previous convictions for offences of violence. The offender was sentenced to imprisonment for two and a half years reduced from three years on account of the plea of guilty. It was to be served by an Intensive Corrections Order.

38. In R v Hidic [2017] ACTSC 307, the offender had punched a player upon an opposing futsal team in the head. The victim suffered a fractured eye socket as well as lacerations requiring stitches. The offender was a young man who was otherwise of good character. Having served two months when bail-refused he received a sentence of two years and seven months to be served by way of an Intensive Corrections Order as well as 300 hours of community service.

39. R v Sharma [2016] ACTSC 180 involved a one-punch attack by a drunk man who was 20 at the time of the sentence. Elkaim J at [34] and [35] emphasised the need for general deterrence for this kind of attack. The offender was sentenced to 27 months' imprisonment suspended after nine months.

40. In R v Myles [2017] ACTSC 194, the offender had committed another one-punch attack whilst drunk which led to a broken jaw. He was given a sentence of 22 months which was to be served by Intensive Corrections Order as well as a requirement that he perform 249 hours of community service within 12 months.

41. So far as the considerations under s 7 of the Crimes (Sentencing) Act 2005 (ACT) are concerned, as I have indicated, general deterrence is a very important sentencing consideration. Clearly, these kinds of drunken attacks by young men are a matter of considerable community concern and have the potential to cause extremely serious harm to the victims. A sentencing purpose of general deterrence must be clearly reflected in the sentence that is imposed. In the present case, rehabilitation is a factor but not that significant a factor, having regard to the only limited matters which require rehabilitation, that is, the use of alcohol to excess. Punishment, accountability, denunciation and the recognition of the harm to the victim are also sentencing purposes that are important in this case. Clearly, the court must recognise the harm to the community that arises from this kind of behaviour. In the present circumstances, notwithstanding that this case involves multiple punches directed to the head of the victim, the objective seriousness of the offence does not compel a fulltime period of imprisonment. Although it is clear that a custodial sentence must be imposed, the difficult question is how that should be served. In my view, the starting point is a sentence of two years and six months which I have reduced by just over 25 per cent, having regard not only to the early plea of guilty but also to the assistance given to police by the making of early admissions, to 22 months. The more difficult question is how that should be served and whether any order should be made departing from the default position that it be served by fulltime detention.

42. Having regard to the authorities, it appears that it is open to the Court for this kind of offence to impose an Intensive Corrections Order. I have not yet decided whether an Intensive Corrections Order or a partially-suspended sentence of imprisonment is appropriate and if a partially-suspended sentence of imprisonment is to be imposed, the period of fulltime detention that is required to be served prior to that suspension. However, I do not have before me an Intensive Corrections Order Assessment and I consider that before finalising the sentences to be imposed, I should have such an assessment. As a consequence, I will adjourn the sentencing proceedings and direct the preparation of an Intensive Corrections Assessment under s 78 of the Crimes (Sentencing) Act. I will also vary the offender's conditions of bail so as to require that he comply with any direction of an officer of ACT Corrections in relation to the preparation of the Intensive Corrections Order Assessment and unless the date and time causes any particular difficulty, I will adjourn the sentencing until 9:15am on Tuesday 6 February 2018. That length of delay is unfortunate and necessary as a consequence of the time required to prepare the assessment as well as the intervention of the Christmas period.

1. The proceedings are adjourned to Tuesday 6 February 2018 at 9:15am.
2. The offender is referred for assessment for suitability for an Intensive Corrections Order.
3. Bail is continued to 6 February 2018 with the additional condition: "To comply with any direction of the Director-General in relation to an assessment for suitability for an Intensive Corrections Order".

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.