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[2016] ACTSC 387
Supreme Court of the ACT
2016-11-10
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
**1. Trevor Glen Keyes be convicted of causing grievous bodily harm to Christopher Raftery by a negligent act on 3 November 2015.
2. Trevor Glen Keyes be required to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:
(a) a probation condition that you be under the supervision of the Director-General or her delegate for two years or such lesser period as the person supervising you deems appropriate and that you obey all reasonable directions of the person supervising you; and
(b) a community service work condition that you perform 80 hours of unpaid community service work within 12 months from 10 November 2016.**
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - causing grievous bodily harm by a negligent act - guilty plea -subjective circumstances - significant injury suffered by victim not directly inflicted by offender - financial reparation made Good Behaviour Order - community service work condition - general deterrence
Crimes Act 1900 (ACT), ss 20, 25
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33(1), 33(1)(q), 33(1)(h)
McCullough v The Queen [2009] NSWCCA 94; (2009) 194 A Crim R 439
R v Bloomfield (1998) 44 NSWLR 734
R v Byrne [2015] ACTSC 113
R v Obradovic (Unreported, Australian Capital Territory Supreme Court, Burns J, 23 December 2013)
R v Perry [2014] ACTSC 99
R v Shevlin [2013] ACTSC 88
R v Srikandakumar (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, 8 April 2014)
Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313
**1. Regrettably, drunkenness and violence are often associated and while the responsible use of alcohol can be a social benefit, the violence with which it is regrettably often associated is a significant social evil.
2. On 3 November 2015, the accused, Trevor Glen Keyes, after celebrating on the occasion of the Melbourne Cup, got into a fight with the victim, Christopher Raftery, and assaulted him causing him injuries.
3. As a result, he was charged with recklessly inflicting grievous bodily harm. He appeared in the ACT Magistrates Court on 4 December 2015 and, after two adjournments, entered a plea of not guilty on 11 March 2016 and was committed to this Court for trial.
4. Prior to that date, however, his lawyers had, on his behalf, offered by letter dated 12 February 2016, to plead guilty to the less serious charge of causing grievous bodily harm by a negligent act. That plea was not immediately accepted.
5. Following committal, an indictment was filed on 6 April 2016 containing the original charge on which Mr Keyes was committed for trial, namely that Mr Keyes recklessly inflicted grievous bodily harm on Mr Raftery, an offence prohibited by s 20 of the Crimes Act 1900 (ACT).
6. The proceedings were then listed for trial in the week commencing 27 September 2016. Preparations were made for trial. Nevertheless, in mid September, the earlier offer was accepted by the Crown. On 23 September 2016, Mr Keyes pleaded guilty to causing grievous bodily harm to Mr Raftery by a negligent act. This offence is contrary to s 25 of the Crimes Act which provides for a maximum penalty of five years imprisonment.
8. In addition to the agreed Statement of Facts, I had some references filed on behalf of Mr Keyes and counsel's submissions from which I can make the following findings.
9. Mr Keyes attended a Melbourne Cup function at the Albert Hall on 3 November 2015. During the afternoon, Mr Keyes consumed a reasonable amount of alcohol, but he had paced himself and had also eaten food during the afternoon. He and his friend would have not been in a position to drive a car legally but were not heavily intoxicated.
10. After the Cup race had been run, he and a friend caught a bus to the Duxton Hotel in O'Connor, arriving at between 5:00pm and 5:30pm.
11. The victim, Mr Raftery, had attended the Duxton Hotel at about 2:00pm and, it appears, had consumed a considerable amount of alcohol during the afternoon.
12. At about 7:00pm, Mr Keyes decided to leave the hotel and called another friend to pick him up and drive him home. At that time, he was seated at the main bar with his friend and moved to a table in the main bar area a short distance from the bar. Mr Raftery was sitting nearby and he and Mr Keyes were conversing. Mr Raftery was more intoxicated than Mr Keyes, and was doing most of the talking.
13. Suddenly, Mr Raftery stood up, walked quickly around the table towards Mr Keyes, grabbed him around the neck and pushed him backwards, taking him to the ground. Mr Raftery held Mr Keyes on the ground and held his right arm above him, cocked, as if he was going to hit him. I was shown the video of some CCTV footage of part of the incident. It showed Mr Raftery acting in a quite aggressive and violent manner, felling Mr Keyes to the floor and threatening to hit him.
14. A security officer of the hotel intervened and pulled Mr Raftery off Mr Keyes and immediately ejected him from the hotel, directing him to leave in the area heading down towards McPherson Street, O'Connor.
15. Mr Keyes came back to the table to his friend, discussing what had happened and neither could understand what had provoked Mr Raftery. Mr Keyes seemed quite shaken by what had happened and he agreed with his friend that it was definitely time to go. His friend went to the toilet. During that time, Mr Keyes was ejected by the security staff of the hotel and directed to leave via the taxi rank. He did so.
16. By this time, Mr Raftery had walked down McPherson Street, stopping at a set of apartments at the corner of McPherson Street and Bluebell Street, where he began talking on his mobile phone. Stupidly, Mr Keyes approached Mr Raftery and asked him why he had attacked him inside the hotel. The two men had an altercation and Mr Keyes then pushed and hit Mr Raftery making contact with his jaw. Mr Raftery immediately fell to the ground hitting his head on the pavement. In the course of his fall, but by a mechanism not clearly articulated in the evidence before me, he also suffered a significant injury to his ankle. There was no suggestion that Mr Keyes had made contact with Mr Raftery's ankle by kicking him or otherwise.
17. Mr Keyes moved towards the taxi rank but did not attempt to leave the area as a security officer took custody him to await police and ambulance. He was arrested by police but released on bail and appeared in the Magistrates Court on 4 December 2015.
18. Mr Raftery was taken to Calvary Hospital where he was admitted and underwent surgery.
19. I had a report from Dr Graeme Thomson as to the injuries suffered by Mr Raftery. These were as follows:**
**20. None of these injuries, which appear consistent with the altercation and the punch Mr Keyes delivered to Mr Raftery, would amount to grievous bodily harm.
21. Mr Raftery, however, also suffered a transverse fracture of the distal fibula of his right ankle, widening of the joint and a fracture of the tip of the medial malleolus, described by Dr Thomson as a Weber B fracture.
22. This fracture required surgery to correct the displacement of the joint and the insertion of screws and 1/3 tubular plate to stabilise the fractured fibula. The screws will remain in Mr Rafter's ankle permanently.
23. This is clearly grievous bodily harm, that is to say, really serious injury: see Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 332-3; R v Shevlin [2013] ACTSC 88 at [30]- [31].
24. As a result of the injury to his ankle, Mr Raftery required a surgical procedure under general anaesthetic. As explained above (at [22]), that required fixing the fracture using plates and screws. That is not bone replacement but is done to stabilise the bone fragments and the joint so that the bones, ligaments and joints heal in the normal position and alignment.
25. While such a procedure is likely to result in a better outcome than conservative management, there can be complications. The complications associated with surgery do not appear to be present in this case but there is a risk of non-union and localised porosis. Porotic bone is weaker bone and can fracture more easily. Joint immobilisation will usually result in some stiffening of the joint, loss of range of movement and pain on movement, but normal joint function can be regained with joint rehabilitation involving exercise and active and passive joint movement.
26. Most ankle fractures will, Dr Thomson opined, heal in six to eight weeks but some rehabilitation would be required thereafter as noted above (at [25]).
27. It appears also that Mr Raftery also suffered some tendon injury, which may require further surgery. Because of Mr Raftery's financial circumstances, he may have to wait for that surgery for some time.**
**28. Violence is a serious matter in the community. The various offences of violence are, however, not always easy to reconcile with one another, especially so far as relative seriousness is concerned. I have pointed to some curiosities of this in R v Byrne [2015] ACTSC 113 at [51].
29. The Crown in this case emphasised the seriousness of the injuries and it is to be accepted that injuries actually suffered are plainly relevant to the assessment of the seriousness of an offence of violence, as pointed out by Gaudron J in Siganto v The Queen (1998) 194 CLR 656 at 665-6; [29]. Nevertheless, the circumstances of the offending and the subjective circumstances of an offender are all to be taken into account.
30. While the injuries suffered by Mr Raftery are serious, they are not by any means the most serious of injuries encompassed within the notion of grievous bodily harm.
31. The circumstances of the offending are also relevant: McCullough v The Queen [2009] NSWCCA 94; (2009) 194 A Crim R 439 at 448; [37]. Mr Raftery initiated what can only be described as a quite aggressive and violent attack on Mr Keyes. That did not, however, justify Mr Keyes punching Mr Raftery after that. Nevertheless, it provided some context to the events, even, perhaps amounting to provocation under s 33(1)(q) of the Crimes (Sentencing) Act 2005 (ACT).
32. Having said that, Mr Keyes took the decision upon himself to approach Mr Raftery after they both were ejected from the hotel. The evidence before me does not suggest that Mr Keyes approached Mr Raftery in a violent or aggressive manner and the facts were a little unclear about how the actual assault arose.
33. The mental element is also relevant, but I had little information about that. There was little evidence about the details of the actual altercation in which Mr Keyes hit Mr Raftery.
34. Further, the most serious injuries suffered by Mr Raftery were not inflicted directly by Mr Keyes. That is to say, Mr Keyes punched Mr Raftery, which was clear from the abrasions. No one seems to be able to explain how the ankle was broken; it was certainly not through a direct attack by Mr Keyes. It must, it appears, have been caused when Mr Raftery fell to the ground, having been punched and somehow twisted and broke his ankle. Nevertheless, it is the law that Mr Keyes must bear the consequences of those injuries: R v Bloomfield (1998) 44 NSWLR 734 at 739.
35. The Crown submitted that the offence was so serious, having regard to the injuries, that no other sentence than a sentence of imprisonment, however served, was appropriate.**
**36. I had a Pre-Sentence Report, Mr Keyes' criminal history and three references. From this material and counsel's submissions, I can make the following findings.
37. Mr Keyes was born approximately 54 years ago in Wollongong, an only child. His childhood was positive and he continues to enjoy a caring, supportive relationship with his parents. Mr Keyes' father indicated that he was always a well-mannered individual and that the current offence was out of character.
38. Mr Keyes undertook and completed an electrician's apprenticeship when he left High School at the completion of Year 11. He was self-employed, apparently as an electrician, for seven years. He then joined his current employer, electricians and electrical contractors, for whom he has worked for the past nine years.
39. He has recently purchased a new house. The current proceedings, together with civil proceedings against him by Mr Raftery, which he has now settled, as noted below (at [48]), have negatively impacted on his financial situation.
40. His employers describe him as "reliable" and "hard working" as well as having "a lot of integrity" and being "honest and trustworthy". He has a significant responsibility for the business in which he works, including its finances. He is seen as something of a role model for the younger among his fellow employees, who see him as something of a "confidante".
41. Mr Keyes has a short criminal record. In 1990, he was fined for speeding and in 1998 and then in 2005, he was convicted of drink-driving offences. He was also found guilty of driving whilst unlicensed in 1988. This record does not deny him leniency, especially as the most recent offence was committed over 10 years ago.
42. It is, nevertheless, unfortunate that the three most serious offences that he has committed have all been related to alcohol. Nevertheless, he denies having a problem with alcohol. The author of the Pre-Sentence Report administered to him the Alcohol Use Disorder Identification Test (AUDIT), a validated questionnaire published by the World Health Organisation. This showed that he used alcohol at a "risky or hazardous level" and may benefit from undertaking a brief intervention.
43. While there may be health and other circumstances where that assessment is correct, it does not seem to me that his criminal history shows that alcohol is a significant problem for him in relation to the criminal law; three alcohol related offences in 54 years would not. His father told the author of the Pre-Sentence Report that he had no concerns about his son's consumption of alcohol.
44. Mr Keyes has diabetes, but it is well managed through diet and exercise. He has had a number of surgical interventions for a lower body injury which, although not preventing him from exercising, can limit the work he is able to perform. He has no mental health issues.
45. The referees all spoke uniformly highly of Mr Keyes. He is described as "straight up and down", "a very decent man" and "a good, genuine person". He is committed to his family, having worked hard to educate his children privately and "constantly reinforces politeness and authenticity in his children". He is family oriented and "a quintessential Australian guy". None of the referees have seen him act violently even under the influence of alcohol and all suggested that the incident was very out-of-character.
46. Mr Keyes explained to the author of the Pre-Sentence Report that he was not the first to have initiated a violent interaction between him and Mr Raftery on that afternoon. He acknowledged, however, he was wrong to have approached Mr Raftery afterwards, even understandably curious as to why Mr Raftery had, without apparent cause, attacked him and taken him to the ground. That shows some important insight.
47. He acknowledged that he was responsible for his own actions and expressed shame and regret that he had caused harm to the victim.
48. A further expression of remorse is that he has made reparation. I had in evidence a Deed of Release which showed that, as a result of a settlement of Supreme Court proceedings, apparently brought by Mr Raftery for damages for the injuries he has suffered, Mr Keyes was bound by the Deed to pay Mr Raftery $100 000 over three years, including a lump sum of more than half of that amount on or before 14 November 2016. That is a very substantial amount of reparation. This is an important matter to be taken into account as required by s 33(1)(h) of the Crimes (Sentencing) Act.**
**49. I had a Victim Impact Statement from Mr Raftery and one also from his wife.
50. Mr Raftery noted that there were mental, physical, social and financial consequences of the offence committed by Mr Keyes.
51. As a result of the injuries, he lost his job, which has caused him stress, particularly financial stress. The Victim Impact Statement was, however, made on 11 February 2016, well before the financial settlement of reparation to which I have referred above (at [48]).
52. There was a suggestion that Mr Raftery may need further surgery, but I had no evidence about whether that has eventuated since the date of the Victim Impact Statement or when it may take place. It appears that he continues to suffer some disability and pain in the meantime.
53. Mr Raftery, a plumber, has found it impossible to get work and his disability has also restricted his quality of life. He has been unable to play golf and missed special family experiences including his daughter's 18th birthday party (when he was in hospital) and her graduation ceremony (because of mobility restrictions). He was also unable to be with his wife watching their daughter's arrival at her school formal.
54. He was troubled by the extra work his wife has had to do, particularly in taking extra work shifts to meet the family's financial commitments. This, he stated, has put a strain on their marriage. He described it as overall "one of the worst periods" in his life.
55. While it is inappropriate to blame a victim for injuries suffered in a crime, and I do not do so, I do note that Mr Raftery does not show in his Victim Impact Statement any insight or regret about his initial violent attack on Mr Keyes which, for unexplained reasons, would appear to have been, in itself, a serious common assault for which no police action has apparently been taken.
56. Mr Raftery's wife also provided a Victim Impact Statement which showed the stresses and impacts of the offence. This included matters to which I have already referred, and in addition, the financial problems. Her Statement was signed on 8 November 2016, the same day as the Deed of Settlement, and it is not clear what effect that settlement would have on the financial problems of which she complained. They will, at least, have been moderated.
57. She noted that Mr Raftery still suffers pain and gets extremely distressed and that it has caused great difficulties to the family.
58. There is no doubt that the offence has had a serious effect on the family of Mr Raftery and on his personal situation.
59. The extent to which the financial harms may have been moderated by the financial settlement of which I had evidence is, however, unclear. There must have been some moderation, though it will not have resolved all their problems if Mr Raftery remains out of work.**
**60. The Crown provided a table containing a summary of a number of cases it said were comparable. In fact, all were for different offences; three for offences of assault occasioning actual bodily harm, one for an offence of recklessly inflicting actual bodily harm, and one for an offence of recklessly inflicting grievous bodily harm. The latter offence is one which attracts a maximum penalty of 13 years imprisonment and, accordingly, it is difficult to see it as comparable. The offences of assault occasioning actual bodily harm attract the same maximum penalty as the offence to which Mr Keyes has pleaded guilty, but the elements of the offence are somewhat different.
61. Nevertheless, in none of the cases was a term of actual full-time imprisonment imposed, although in two of them, periods of periodic detention had to be served prior to the suspension of the term of imprisonment. All the injuries in the cases were to the victims' face or head, a rather different situation to this case.
62. I also had regard to some other decisions of this Court which were helpful to identify the appropriate range of a sentence, relevant principles and practice.
63. In R v Byrne, Mr Byrne punched the victim who fell to the ground and hit his head, which rendered him unconscious and resulted in serious head injuries. Mr Byrne was younger than Mr Keyes but had a significant criminal history and was on conditional liberty at the time of the offence. He was sentenced to 12 months imprisonment of which eight months was to be served as full-time custody and the balance suspended for 12 months.
64. In that case, the Crown referred the Court to a number of decisions but, again, they related to different offences. I had regard to them.
65. In particular, I had regard to R v Obradovic (Unreported, Australian Capital Territory Supreme Court, Burns J, 23 December 2013), R v Srikandakumar (Unreported, Australian Capital Territory Supreme Court, Murrell CJ, 8 April 2014) and R v Perry [2014] ACTSC 99. All of these were sentences for the same offence as here. In each case, a term of imprisonment was imposed, partially suspended. In one case it was partially served by full-time custody and in the other two cases partially served initially by periodic detention before, in each case, being then suspended. The circumstances of each case, however, were different to this case.
66. Ordinarily, it appears that a sentence of imprisonment would be appropriate for an offence of this kind though most of the sentences would be partially or wholly suspended.**
**67. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. In this case, there is some need for general deterrence because of the serious nature of the offence which the courts are required to address in the case of offences of violence.
68. In my view, there is no real need for specific deterrence in this case, as I accept that the offence was out-of-character and is unlikely to be repeated.
69. While it is important to acknowledge the harm done to the victim, and hold Mr Keyes accountable, there are particular circumstances in this case which do moderate the severity of the sentence required.
70. I take into account Mr Keyes' plea of guilty. Given that it was offered at the second mention in any Court, it entitles him to a significant discount on the sentence to be imposed. There is no doubt that an offer to plead guilty or, in some cases, an actual entry of plea of guilty to a lesser or alternative charge, notwithstanding that the prosecution continues to prosecute a more serious charge which is ultimately not pressed or of which the accused is acquitted, justifies a substantial discount because of the contribution offered to the administration of justice by the offender in such cases.
71. I take into account the matters required to be considered under s 33(1) of the Crimes (Sentencing) Act. So far as I know them, they are set out earlier in these reasons.
72. Of particular note are the circumstances under which the offence was committed. While Mr Keyes should have left Mr Raftery alone when he left the hotel, the apparent spontaneous nature of the earlier attack on him by Mr Raftery would have reasonably excited his curiosity and, although he was foolish to have approached Mr Raftery as he did, it is understandable that he did so. Again, there is no suggestion in the material before me that he had to hit Mr Raftery in self-defence and, accordingly, the offence remains a serious one.
73. I also take into account the very significant reparation Mr Keyes has made. I also take into account his very limited criminal record.
74. I note that Mr Keyes has been assessed as suitable for a community service work condition to a Good Behaviour Order.
75. Having given the matter anxious and careful thought, I do not consider that this is a case where no other sentence than a sentence of imprisonment is appropriate.
1. I convict you of causing grievous bodily harm to Christopher Raftery by a negligent act on 3 November 2015.
2. I require you to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:
(a) a probation condition that you be under the supervision of the Director-General or her delegate for two years or such lesser period as the person supervising you deems appropriate and that you obey all reasonable directions of the person supervising you; and
(b) a community service work condition that you perform 80 hours of unpaid community service work within 12 months from today.
3. I direct you to attend at ACT Corrective Services, Eclipse House, London Circuit, Canberra City by 4:30pm today to arrange supervision and community service work.
77. Mr Keyes, that is the formal order that I have pronounced. It is important that I explain that to you. I have said that in this case, having regard to all the circumstances, a sentence of imprisonment is not appropriate, but I have convicted you of the offence. I have required you to enter into what is called a Good Behaviour Order, which is an undertaking that you comply with certain conditions. There are three essential conditions for that in your case. The first is that you commit no further offences within two years of today; such offences are ones that are punishable by imprisonment. If you commit such offences, you can be brought back to Court and not only dealt with for those but also I can revisit this sentencing and that includes imposing a term of imprisonment for the original offence, if that is appropriate.
78. The second condition is a probation condition. That is, in effect, a supervision condition. You will be assigned a probation officer and required to meet with that person, probably initially every week and then every fortnight and then every month, and that person can say at some point that it is not necessary for you to be supervised any further. Ordinarily, probation has two aspects to it. One is a degree of supervision or protection of the community to see that nothing like this happens again. That is probably not very significant in your case. The second is an opportunity that if things are getting tough for you - and although in your circumstances you have lasted for 54 years with little on your criminal record, but things can get tough, particularly as you have committed yourself to making substantial financial payments to Mr Raftery, as well as this offence now being on your record - it means that there is someone with the knowledge of resources who can assist you to address any issues that may arise. I do not think that is going to be a major problem but it is an advantage. It is also important because of the third condition, community service work condition, which requires a degree of supervision. I have said that you must pay back to the community for what you have done and that is a fairly modest 80 hours of unpaid community work, which you will be required to complete within 12 months from today.
79. You are required to attend at ACT Corrective Services today by 4:30pm. I suggest, but it is a matter for you, that you go straight there. It is Eclipse House at the corner of Akuna Street and London Circuit, opposite the Legislative Assembly.
80. Unlike Mr Raftery, I think you have come to terms with the fact that while you had perhaps a legitimate grievance for the initial interaction between you and Mr Raftery, you recognise that what you did was completely inappropriate, and not only was it inappropriate, it was a serious criminal act. You have been dealt with for that in what I think is a fair way. The Crown wanted me to be tougher but I am known for being fair.
81. As I said earlier, I have convicted you for the offence and a conviction for violence is a serious matter that will stay with you for the rest of your life. I have no doubt that you will be able to get your life back on track. It probably is not off track at the moment but there are some challenges you have. You may consider the need to review your
consumption of alcohol which can affect a person's judgement, and on this day may well have affected your judgement, leading you to where you are now, so that is something that you may wish to give some thought to.**
I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Keyes [2016] ACTSC 387
(1998) 44 NSWLR 734
(1998) 194 CLR 656
(1992) 174 CLR 313