[2018] ACTSC 24

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - common assault - recklessly inflicting grievous bodily harm - consideration of alcohol rehabilitation - specific deterrence - general deterrence - sentenced to an intensive corrections order - community service work condition

Crimes (Sentencing) Act 2005 (ACT), s 80E(2)

Legal Aid ACT (Offender)

1. On the occasion when these proceedings were previously before the Court, I gave reasons for my conclusion that a sentence of 22 months was appropriate, leaving for further consideration the manner in which that sentence should be served. An intensive corrections order assessment was sought and the sentencing was adjourned.

1. The intensive corrections order assessment has identified that the offender was assessed as suitable for an intensive corrections order. It identified that alcohol abuse would be the factor targeted if an intensive correction order was made. The Report recommended that any such order should contain an additional condition that the offender not consume alcohol. Consistent with the pre-sentence report, dated 23 October 2017, the intensive corrections order assessment identified a series of positive factors consistent with a low risk of reoffending. It assessed the offender as ready to undertake programs to identify his criminogenic risk factors. The only risk factor identified was alcohol abuse. The Report assessed him has being not suitable for a community service work condition because of his paid employment commitments. The Report did however identify that he was able to adjust his work times so as to see an alcohol counselling service on Wednesday afternoons but that his employment may require ongoing work outside the ACT including a number of consecutive overnight stays.

1. The tension in the sentencing exercise arises because of the minimal criminal history and strong indicators of a low risk of general reoffending on the one hand, and the culpability for and gravity of the violent assault committed by the offender.
2. I consider that having regard to the gravity of the offending conduct, it is not appropriate to wholly suspend the custodial sentence. As between a partially suspended sentence and an intensive corrections order, although an offence of this gravity would usually require the offender to serve a significant period in custody before the suspension of the balance of the sentence, in the present case I consider that an appropriate sentence is an intensive corrections order, so long as it is combined with a period of community service. This will combine components of rehabilitation along with a greater degree of punishment and deterrence than would be involved in either a wholly suspended sentence or an intensive correction order that did not include a requirement to perform community service. I will impose a requirement that the offender perform 249 hours of community service within 12 months. Having regard to his overall sentence, this is the maximum period that may be imposed having regard to the fact that his sentence is less than two years: Crimes (Sentencing) Act 2005 (ACT), s 80E(2).
3. Because he was not recommended as suitable for community service work, I am required to record my reasons for including a community service condition.
4. Having regard to the gravity of the offending conduct, it is only through the imposition of a community service condition that a sentence which incorporates sufficient punishment and adequately reflects the requirement for general deterrence can be imposed. If a community service condition could not be imposed then, in my view, it would be necessary to impose a partially suspended sentence in order to adequately reflect those considerations and hence, the offender would be required to spend time in custody.
5. The reason he was not assessed as being suitable for community service work was because of his employment obligations. Clearly, the making of a community service order will have an impact upon his employment. However any such impact upon his employment is, in my view, justifiable having regard to the alternative of imposing a partially suspended sentence which would require him to spend a period in full-time custody. It is not clear whether the performance of the community service work will have an impact upon his capacity to continue in his employment. Having regard to the reference given by his employer, it appears unlikely that it would, particularly having regard to the potential for the offender to take recreation leave in order to perform his community service. I did not consider that an intensive corrections order without a requirement to perform community service would adequately reflect the need for punishment and general deterrence.
6. In relation to the common assault charge, I consider that that charge may be disposed of by imposing a good behaviour order for a period of 12 months.

1. The orders of the Court are:
   1. For the offence of common assault (CC2017/5207), Elesakepaoa Kepaoa be sentenced to a Good Behaviour Order for a period of 12 months with core conditions and the inclusion of a condition that he attend any programs or counselling that he is directed to by the Director-General including in relation to alcohol use.
2. For the offence of recklessly inflicting grievous bodily harm (CC2017/5206), Elesakepaoa Kepaoa be sentenced to imprisonment for a period of 22 months to be served by way of an Intensive Corrections Order which includes:
   • (a) a community service condition which requires him to perform 249 hours of community service within 12 months;
   • (b) a condition that he attend any programs or counselling that he is directed to by the Director-General including in relation to alcohol use; and
   • (c) that he not consume alcohol.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.