R v Martin [2013] ACTSC 280

5. Sharlene Marie Martin be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years from today with a probation condition that she be on probation from August 2014 for two years, or such lesser period as the person delegated to supervise her considers appropriate, and that she obey all reasonable directions of the person delegated to supervise her, especially as to appropriate interventions to resolve the areas of dynamic risk identified in the Pre-Sentence Report dated 17 October 2013.

1. I have often said that violence is a social evil that the legislature requires the courts to do what they can to prevent, by punishing offenders and thus also deterring them and others, as well as meeting the other purposes of punishment set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT).

2. Appearing before me for sentence is Sharlene Marie Martin, who has pleaded guilty to one charge of recklessly inflicting grievous bodily harm. That is an offence against s 20 of the Crimes Act 1900 (ACT), which establishes a maximum penalty of thirteen years' imprisonment. I note that the penalty was increased in 2011 from ten years' imprisonment. There is also an offence of assault on a List of Additional Offences under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT). Assault is an offence under s 26 of the Crimes Act, attracting a maximum penalty of two years' imprisonment.

3. On 2 March 2013, Ms Martin was at a birthday party at the home of the victim and two others. A number of other people were present, including a close friend of Ms Martin, whom I will call Ms A, and her boyfriend, one of the occupants of the premises, whom I will call Mr J.

4. During the evening, Ms Martin and the victim had a number of arguments. Later the victim was involved in a fight with Mr J, though it was said to be a friendly fight, but as a result, the victim left the house with a female companion. As they were walking along the street, they were approached by Ms A, Mr J and Ms Martin.

5. A further fight took place between the victim and Mr J, during which both fell to the ground wrestling. Ms Martin jumped on top of the victim and, while she was on top of him, Mr J removed himself from the fight. Ms Martin punched and kicked the victim, including punching him around the head, and said "I fucking told you I'd get you". She then bit the lower lobe of the victim's left ear. She bit so hard that she severed the lobe. This constituted the offence to which she pleaded guilty.

6. The victim felt pain and began to bleed profusely from where the ear had been severed. Another person who attended the party by this time arrived and lifted Ms Martin off the victim.

7. The victim managed to find the severed part of the lobe and, after police arrived, arrangements were made for an ambulance to attend, which arrived and took the victim to hospital, where he was treated and received approximately fourteen stitches to the lower part of his ear. Doctors were unable to re-attach the severed part of the ear lobe.

8. Ms Martin was interviewed and made a number of admissions, including that she had drunk a large amount of alcohol, including an entire carton of pre-mixed whiskey and cola drink cans and a can of pre-mixed vodka, as well as using some cocaine and MDMA.

9. Initially police formed the view that Ms Martin's attitude to the victim and his injury that she had inflicted was equivocal but, on further questioning, it became clear that she regretted the damage she had caused. In response to a comment by the interviewing police officer, "I get the feeling from you that you're more remorseful for [the loss of the victim's ear] than perhaps you led us to believe", she said, "I certainly am. He - I'd do anything to fucking help him get [the severed lobe] put back on". When her mother visited Ms Martin in the Watch House, she said, "I was an animal and do not deserve to live".

10. Ms Martin was arrested on 3 March 2013 and refused bail. She applied for bail on 22 March 2013 and it was granted on terms. The proceedings were listed for a case management hearing on 4 July 2013. On that day, the current offence was preferred against her and she entered a plea of guilty, a plea entered at the earliest time. She was then committed for sentence.

11. As noted below (at [22], [24]), she continued to use cannabis, which was contrary to her bail conditions. This resulted in her breaching her bail when urinalysis disclosed that use. She came before the Chief Magistrate on a Saturday court hearing on 28 September 2013 and her bail was revoked. She has remained in custody since then.

12. Her other bail conditions were reasonably extensive, including a curfew, none of which she is alleged to have breached, notwithstanding their restrictions.

13. On sentence before me, I had a Pre-Sentence Report, four reports from the Court Alcohol and Drug Assessment Service (CADAS), Ms Martin's criminal record, a Victim Impact Statement, four character references and an offer of employment. The author of the Pre-Sentence Report also gave oral evidence and Ms Martin gave oral evidence and was cross-examined.

14. Ms Martin is thirty years old. She declined to describe her childhood and upbringing to the author of the Pre-Sentence Report. Her mother described her childhood, however, as normal and that she was a happy child.

15. I have some information in the helpful reports from CADAS. When she was a baby, her parents separated and she did not form a relationship with her father. He had been a big drinker and was violent to her mother.

17. Ms Martin left home at age fifteen. While she was in custody at the Alexander Maconochie Centre, she completed a Year 12 equivalent as well as a certificate in handling blood spills. That confirms that she left school about the time she left home. She played hockey for thirteen years, until she had a car accident which resulted in her having metal plates inserted into her legs. She was unable to walk properly for about three months.

18. I also had limited information about her employment, but in 2005 through an employment agency, she gained a position with a horticultural business where she worked for about eight years. She clearly enjoyed the work and participated in the business, joining its OH&S committee in 2008. Unfortunately, the business closed in July 2013 and, as a result, Ms Martin became unemployed. The operations manager of her employer, however, provided a reference, which was tendered and made it clear that she was a valuable employee. Indeed, had the business been able to continue, she would still be employed. The manager described her as "intelligent, polite and loyal" but said she "lacks confidence". She was reliable, voluntarily undertaking training and leading teams satisfactorily at various sites, representing the company well.

19. Unfortunately, Ms Martin has been associating with anti-social people who use illicit drugs and alcohol and who have breached the criminal laws. She has, however, stopped associating with them and has had no contact since she was arrested.

20. In June 2012, Ms Martin decided to try and form a relationship with her father. This turned out disastrously. She visited him on his property at a New South Wales regional centre but found their lifestyles were incompatible. He could not accept her sexual orientation or her appearance. At one stage, he even pointed a shotgun at her and pushed her up against a wall while she was calling a friend.

21. In 2012, she also separated from her partner with whom she had been in a relationship for three years. She was not aware that her partner wanted an end to the relationship so it came as a "bolt out of the blue". She was devastated.

22. Ms Martin told me in her evidence that she had not been using drugs during the period of the relationship, but re-commenced following the ending of it. At first, this was not regular, but it soon escalated and, at the time of her arrest, she was smoking thirty bongs of cannabis a day and smoking ice.

23. She had been drinking alcohol, but her binge drinking also increased.

24. Ms Martin started using cannabis when she was twelve. She told the author of the Pre-Sentence Report that she had never stopped using it, but to CADAS she did report that she stopped using between 2009 and 2011. She did use once when released on bail at the end of March, but, by June 2013, she had resumed daily use. She says it helps her sleep.

25. Ms Martin began drinking alcohol when she was thirteen and her consumption became most problematic in the three years between the ages of fifteen and eighteen. She would get highly intoxicated every weekend, drinking what she described as "huge quantities of alcohol". Around the beginning of this year, she would drink to get quite drunk at least once a fortnight. She has not consumed alcohol since her arrest.

26. She first smoked ice when she was twenty-nine, but has not injected it. She used to smoke it every second day for a period of about eight months. She snorted speed on about thirty occasions, but only does so when she cannot get ice. She has not used ice since her arrest. Ms Martin has used cocaine and heroin occasionally.

27. She smokes cigarettes, about thirty to forty a day. Her use increases when her other drug use decreases. She has had no alcohol or other drug interventions. She has more recently expressed a willingness to enter counselling for her drug and alcohol use. Unfortunately, the Alcohol and Drug service had a two-month waiting list for her to join any counselling.

28. Ms Martin has, apart from the car accident, had no significant physical health issues. She also had a plate inserted into her hand when it was injured in a fight. The plates and injuries in her hand and legs still cause some pain.

29. She has some history of depression and, in 2011, was prescribed antidepressants, but stopped taking them in 2012, though she replaced them with illicit substances. She has been prescribed antidepressant medication whilst in custody. She has also acknowledged an issue with anger management and started an anger management program whilst in custody.

30. Ms Martin has a modest criminal record consisting of six offences committed since 2002. Worryingly, these include two offences of assault occasioning actual bodily harm, though, judged by the sentences imposed, they were not serious examples of the offences. They, together with the offences of damaging property on her record, confirm the problem she identified with anger management and possibly her excessive use of alcohol. The use of alcohol is also featured in her two drink driving offences.

31. I had character references from her mother, her aunt, her former employer's operations manager to which I have already referred above (at [18]), a friend of some five years with whom she lived for a year and also a prospective employer. Save for the latter, they all refer in strong terms to her remorse, which she also expressed before me in the oral evidence that she gave. She has been described, perhaps in the best summary, by her employer's operations manager, as "a troubled soul". She clearly burdens herself with her problems, which she feels she should not share so as not to burden others. She tends to keep things to herself which limits her capacity to deal effectively with her problems. When things go wrong, she blames herself. She clearly was very committed to her employment and undertook many courses to upgrade her qualifications and keep up to date.

32. Ms Martin is described as loyal and protective of her family and friends. She is very independent and her referees described her as kind and loving, caring, having a high work ethic, a warm and caring person, honest, generous and a supportive friend. An important rehabilitative consideration is that she has the support of her family and friends. She has been offered employment as a painter's hand, a trade assistant, with the possibility of this becoming a career.

33. Ms Martin has been assessed as at a high risk of reoffending but that would be significantly reduced were there to be appropriate interventions. The first is to address her alcohol and drug use, where abstinence would substantially reduce her re-offending risk.

34. Addressing her anger management issues is also an important intervention. She had not commenced a course for that in the community because of the proximity of the sentencing that she was about to face, but she has commenced a course in custody, as I have mentioned above (at [29]).

35. Employment would also be a very significant intervention to reduce, very significantly, her re-offending risk. The author of the Pre-Sentence Report concluded that there would be benefit in her being employed and serving any imprisonment by periodic detention to keep her busy with little free time, though she noted, regrettably, that there were currently no programs provided for those required to undertake periodic detention.

36. I received a Victim Impact Statement which was read to the court. The victim states that the crime had affected him personally in a very physical way, as he is now missing a part of his ear. His seven year old daughter found that frightening and stopped hugging her father. She also became scared of staying with him in case something happened to her. Due to his financial situation and his care responsibilities, he was unable to take time off work and checked himself out of hospital to get back to his work as soon as possible, limiting the time he had to recuperate. He had a hard time, too, awaiting the results of an AIDS test. His ear continues to hurt, especially as he has to wear a helmet for his work, and that accentuates the pain and raw feelings in his ear.

37. As I have noted, the offence is to be regarded as a serious one. Crispin J pointed in R v Webb (Unreported, Supreme Court of the Australian Capital Territory, Crispin J, 28 August 2003) to "the need to protect the community from violent conduct". The harm done is important. The Court of Appeal, in R v Campbell [2010] ACTCA 20 at [37], adopted what Howie J, with whom Giles AJ and Latham J agreed, said in R v Thawer [2009] NSWCCA 158 (at [43]):

Although other factors are obviously relevant to an assessment of the seriousness of an offence of inflicting grievous bodily harm, to a very significant degree the seriousness of the offence will depend upon the degree of harm suffered by the victim

38. In this case, the loss of the ear lobe was a significant harm which must be recognised.

39. Ms Martin gave some account of the circumstances under which the offence occurred. She said that her friend, Ms A, had recently suffered a miscarriage and Ms Martin had provided her with substantial support, spending time with her daily or on every second day. Ms A and the victim had had an argument when the victim had accused Ms A of stealing from the house and Ms A suspected that the victim was the thief. Ms A spoke to Ms Martin about the argument and it was plain that she was very hurt at the accusation because it was not true. Ms Martin did not want to go to the party but Ms A, who had to go because it was at the house of her boyfriend, Mr J, especially wanted her to go. She did go and had arguments with the victim.

40. When the victim left after his scuffle with Mr J, Ms A followed and Ms Martin went too, concerned that there may be an incident. There was then a fight between Mr J and Ms A and the victim with the former involved in a punch-up. Ms Martin went up to the fight to stop it but has no memory thereafter.

41. She says that she blacked out, though she acknowledged that she must have had some knowledge of what she was doing in order to enter the plea she did. It was suggested that this blackout meant that she had not accepted full responsibility for the offence. The blackout and failure to remember has not, however, been challenged or suggested to be an invention. Her excessive use of alcohol and her taking of drugs provides some support for her statement. This is relevant because, as Crispin J continued in R v Webb:

[T]he protection of the community requires more than just a thoughtless response by imposing a lengthy term of imprisonment. It requires a careful consideration of the reasons for the violence and what may be done to alleviate it and the balancing of all of the factors ... appropriate to be taken into account in sentencing the defendant.

42. Nevertheless, the sentence must include elements of general deterrence. Many of the offences of this kind are committed when the offender is affected by at least alcohol and, sometimes, also drugs. Since Ms Martin needs a clear message about the factors that have contributed to the crime, some element of specific deterrence is also relevant.

43. The offence of recklessly inflicting grievous bodily harm is an offence that can be committed in a wide variety of ways. It is not infrequently committed using a knife, which usually is an aggravating feature. That, of course, is not present here. As with most offences, there are rarely any other cases which have the same circumstances of objective seriousness and subjective circumstances.

44. I have, however, reviewed a number of decisions in this jurisdiction which seem to me to be of assistance in pointing to the range of the appropriate sentence recognising that in each case, there are significant, and even in some cases substantial, differences in some of the factors. I have had regard to the decisions in:

• R v O'Brien (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 10 June 2008);

• R v Subritzky (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 15 June 2009);

• R v Sarlija (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 21 June 2009);

• R v Neish (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 24 May 2013);

• R v Flowers (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 28 May 2013); and

• R v Laipato (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 16 September 2010).

45. I take into account Ms Martin's plea of guilty. It came at the earliest time and justifies a significant discount for the utilitarian value it has provided to the administration of justice. In addition, it is part of the evidence of remorse which Ms Martin expressed to me when she gave oral evidence and, having carefully assessed her evidence, I am satisfied is genuine. Remorse is a mitigating factor leading to a reduction in sentence, as Murphy J said in Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at 315.

46. I have regard to the seriousness of the offence both generally and in this particular case, as I have outlined above. The injury suffered by the victim makes it quite a serious offence but the injuries were by no means life threatening, as in R v Laipato, nor did they involve the loss of a very significant function such as the loss of an eye, a very serious loss, as in R v Charnock (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012).

47. The subjective circumstances of Ms Martin are also, of course, very relevant and must be considered. I accept that she has a somewhat concerning criminal history but there are only two offences of violence on it and the most recent related to an offence committed in January 2006, now nearly eight years ago. That offence resulted in a sentence of an eighteen month good behaviour order, a judicial assessment of the relative level of seriousness of the offence.

48. Clearly, Ms Martin had been affected by some significant recent personal events which impacted on her such that she succumbed to a return to substantial alcohol abuse and drug use. She has, however, been able to show rehabilitation and moderation of this over recent times. However, her continued use of cannabis has led her into her current custodial situation.

49. I note that Ms Martin has an offer of employment. That is clearly a matter of significance. The author of the Pre-Sentence Report acknowledged that it was an important intervention to reduce risk factors substantially. I acknowledge that Ms Martin committed the most recent of her violent offences while she was employed but it was within twelve months of her commencing employment and there have been no further offences of violence or of the sort since then, namely during the majority of the period of her employment. While I consider that these matters show that specific deterrence will play a lesser role in the sentence, I must take into account the reinforcement of those matters of risk that predispose Ms Martin to commit crimes. Nevertheless, there is still an important place in the sentence for general deterrence and for denouncing the conduct as well as recognising the harm done to the victim.

50. I note that Ms Martin has a good support network and the support of her family. It was also submitted that it was relevant that Ms Martin had been subject to a curfew and thus restrictive bail conditions. In an appropriate case, the length and terms of an offender's period on bail awaiting a sentence is relevant to the proper sentence to be imposed. See R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166 at 214; [242].

51. The period of bail of Ms Martin, however, has not been significant. She has only been only bail since 22 March 2013. The curfew was restrictive but not such that, in my view, it can have much effect on the sentence.

52. I note, however, that, although not complying with the condition relating to not consuming drugs so far as cannabis is concerned, there has been no suggestion made that Ms Martin did not comply with the curfew or the other restrictive bail conditions.

53. I have taken into account the additional offence of assault and I applied the principles set out in R v Campbell so far as that was concerned.

54. Ms Martin has been assessed as suitable for periodic detention and a community service work condition to a good behaviour order.

1. I convict you of recklessly inflicting grievous bodily harm on 2 March 2013.

2. I sentence you to imprisonment for two years and six months to commence on 7 September 2013.

3. I set the period of ten months, that is, from today to 30 August 2014, during which that period of imprisonment is to be served by periodic detention.

4. I suspend the sentence on 31 August 2014 for a period of two years.

5. I require you to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years from today with a probation condition that you be on probation from 31 August 2014 for two years or such lesser period as the person delegated to supervise you considers appropriate and that you obey all reasonable directions of the person delegated to supervise you, especially as to appropriate interventions to resolve the areas of dynamic risk identified in the Pre-Sentence Report dated 17 October 2013.

56. [His Honour then spoke directly to Ms Martin]

57. Ms Martin, that is the formal order of the Court, but let me explain it to you as I should. I have set a head sentence of two years and six months to recognise the seriousness of the offence that you committed and the circumstances of the committing of that offence and your personal circumstances. However, I do not require you to serve any further fulltime custody, but I have set a period of ten months from today for you to undertake that by periodic detention.

58. I do not think I indicated the first period of detention and I should indicate that the first period of detention will be on 1 November, that is, tomorrow, when you are to report at 7:00 pm to the Symonston Periodic Detention Centre and then continue until 30 August 2014.

59. Periodic detention allows you to obtain employment and work during the week but during the weekend, you are locked up as recognition of the seriousness of the offence and those other matters. It sounds easy but it is not in the sense that if you arrive late for periodic detention or if you arrive affected by alcohol or drugs, then you can be sent away. If you are sent away, then an extra period is added on at the end of the periodic detention that you have additionally to serve, but, more significantly, if you are sent away on two occasions or fail to turn up on two occasions, then you will have to spend the whole of the rest of that period of periodic detention in fulltime custody, so there is a large obligation on you there.

60. At the end of that period, I have suspended the sentence and made a good behaviour order. That is an order that requires you not to commit any further offences that are punishable by imprisonment. If you do commit such offences, you can be brought back before me and I can re-sentence you, including sentencing you to a period of imprisonment.

61. I have made a probation condition, that is, a supervision condition, and included in that the ability of the person supervising you to direct you in relation to the matters that are the risk matters that were identified in the Pre-Sentence Report so that we can try and address those to ensure that this is the end rather than a continuation of any of your criminal activity. That will obviously need to address things like alcohol use, drug use, including cannabis use, because cannabis is an illegal drug and whatever people might think about it, the fact is that cannabis is an illegal drug and its use is a breach of the criminal law and a breach of the criminal law that can result in a term of imprisonment. Your anger management and the stability of employment are obviously going to be an important matter and I hope that that works out very well.

62. Your history would tend one to believe that that will be very positive and I hope it is for you and for your employer. If those strategies work out, then hopefully this will be the last time you will see the inside of a criminal court and certainly the court will be very hopeful that this will encourage that.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: ACT Director of Public Prosecutions

Solicitor for the defendant: Legal Aid Office (ACT)