R v McNeill [2018] ACTSC 125

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10

R v Deng [2017] ACTSC 338

R v Dunn [2017] ACTSC 338

R v Hidic [2017] ACTSC 307

R v Sharma [2016] ACTSC 180

ACT Office of the Director of Public Prosecutions (Crown)

SCC 226 of 2017; SCC 227 of 2017

1. On 24 August 2017, the offender entered pleas of guilty in the Magistrates Court to the following offences:

(a) Common assault, contrary to s 26 of the Crimes Act 1900 (ACT). This offence carries a maximum penalty of two years' imprisonment.

(b) Recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act 1900 (ACT). This offence carries a maximum penalty of 13 years' imprisonment.

2. The pleas were entered at an early opportunity. The offender is entitled to a discount on his sentence for his pleas.

3. The offences occurred on 30 October 2016 at around 1:20 am. The events took place in Bible Lane, where the offender did his best to ignore the fundamental precepts of the Bible.

4. The offender was under the influence of alcohol and drugs at the time. This is, however, no excuse for his conduct. The offender also appears to have suffered from a number of psychological ailments. According to a psychologist, Dr Clout, the offender was likely suffering from a Major Depressive Disorder, Alcohol Use Disorder and Stimulant Use Disorder at the time he committed the offences. The offender also has a longstanding diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), associated with impulsivity.

5. There seems to have been two groups of protagonists involved in the incident: the offender and his friends; and Richard and Matthew Hudson and their friends. A fight broke out between a co-offender and Richard Hudson. The offender arrived at the scene in answer to a call received on his mobile phone from the co-offender. In the course of the fight, Matthew Hudson was punched in the face by the offender.

6. The co-offender also assaulted Richard Hudson. Matthew Hudson came to his brother's assistance. This prompted the offender to throw a punch to the right side of Richard Hudson's face. Richard Hudson was knocked unconscious and fell to the ground. Fortunately, another man was able to catch Richard Hudson's head before his body landed on the ground. The offender and co-offender, in an act of cowardice, immediately left the scene.

7. Richard Hudson presented at the Canberra Hospital with a broken jaw. He required emergency surgery. A graphic depiction of the fracture can be seen in the photograph forming part of Exhibit A.

8. The police released CCTV footage of the incident to social media. This led to a number of anonymous reports being made by members of the public, in turn leading to the identification of the offender and co-offender.

9. On 11 November 2016, the offender and co-offender surrendered themselves to the City Police Station. They were accompanied by a solicitor. Both men were arrested by police.

10. A more precise account of the events that took place on 30 October 2016 can be found in the Statement of Facts (Exhibit A).

11. The offender was born in 1991. He grew up in Canberra. His parents separated when he was 10 years of age. He was primarily raised by his mother, who is very supportive. The offender "got into a lot of trouble" at school, primarily due to the symptoms of ADHD. While he did not do well at school, he did make it through to Year 12.

12. The offender commenced a plumbing apprenticeship in 2009. He completed the apprenticeship in 2013. Following his apprenticeship, he obtained employment with National Plumbing Services Pty Ltd, where he is currently working. The offender has tendered a glowing reference from this organisation, which paints a picture of a hard-working man who is personable and ambitious. The reference describes a very different person to that described in the psychologist's report.

13. The reference from National Plumbing Services Pty Ltd is also to some degree inconsistent with the offender's history of alcohol and drug use. His General Practitioner's clinical notes indicate a continuing concern with mental health issues. There is a suggestion that these issues may be hereditary.

14. The offender also tendered a character reference from Dr Gingold, who came to know the offender while he was dating his daughter. He describes the offender as "a kind and well-balanced individual who can be a good contributor to society".

15. The offender has participated in the SMART Recovery Program at Directions Health Service, which is a program designed to address alcohol and drug related issues.

16. The material does not paint a clear picture of the offender. On the one hand, it is suggested that the offender is a conscientious, hardworking and kind man. On the other hand, there is evidence that the offender is depressed, consumes drugs and is unable to control his emotions and aggression.

17. The sentencing process requires an examination of the purposes and principles of sentencing, as set out in sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is particularly important because it tells the court that an offender should not be imprisoned unless there is no other alternative. In this case, the offender has submitted that a period of fulltime imprisonment is not a necessity. There are other options, such as an Intensive Corrections Order ('ICO') and a suspended sentence.

18. I think it is helpful to look at some decisions in which the facts are similar, recognising of course that, at both a subjective and an objective level, no two cases are the same.

19. In R v Sharma [2016] ACTSC 180, a man who was 20 years of age and of previous good character hit another man, while intoxicated, and broke his jaw. A sentence of 27 months' imprisonment was imposed, suspended after nine months upon the offender entering into a Good Behaviour Order. An appeal against sentence was unsuccessful.

20. In R v Hidic [2017] ACTSC 307, the offender was 23 years of age. He had entered a plea of guilty, was of prior good character and had strong family support. Murrell CJ imposed a sentence of two years and nine months' imprisonment, to be served by way of ICO. The ICO included a condition requiring the offender to perform 300 hours of community service.

21. In R v Dunn [2017] ACTSC 227, the offender was 26 years of age and had recently been diagnosed with depression. His criminal history included assault offences. Mossop J imposed a sentence of 27 months' imprisonment, suspended after 11 months upon the offender entering into a Good Behaviour Order.

22. In R v Deng [2017] ACTSC 338 the offender was 22 years of age, entered a plea of guilty and had a history of alcohol and drug abuse. Mossop J imposed a sentence of 12 months' imprisonment, to be served by way of an ICO. The ICO included some additional conditions relating to counselling and attendance at various programs.

23. The facts of the present case include elements that are similar to all of the above matters, as well as some obvious points of distinction. This offender's personal circumstances are in his favour and, although his record is not without blemish, it is not overtly unfavourable to him.

24. On the other hand, the offender involved himself in a fight which included assaults on the victim and others. I accept this is a background point but it does illustrate the offender's attitude to getting involved in unlawful activity. Most importantly, the punches were uncalled for and resulted in a serious injury. The injury could have been significantly more serious if a friend of the victim had not prevented his head from hitting the ground. This also illustrates that the punch that broke the victims jaw must have been of considerable force.

25. Rendering assistance to a friend is ostensibly a noble act but only when done without causing a disproportionate amount of harm and certainly not by taking the law into one's own hands.

26. When the matter originally came before me on 13 December 2017, it seemed to me that the subjective factors in this matter were so influential that I should give serious consideration to the sentence being served by way of an ICO. To that end, I referred the offender for assessment.

27. The ICO Assessment Report, dated 10 May 2018, ends with a recommendation that: "the offender has been assessed as suitable for an ICO and has signed an undertaking to comply with all of the obligations of an ICO".

28. The report is a carefully prepared and detailed assessment of the offender's suitability for an ICO. The assessment involved 12 interviews with the offender, an interview with his partner, an interview with his mother, an interview with his employer and the scrutiny of a number of relevant documents.

29. The report notes the offender's "polite and respectful" attitude towards the assessing officer and his compliance with drug testing requirements.

30. It also gives details of the offender's income and notes that he has incurred very significant legal expenses which he would otherwise have put towards a deposit on a house.

31. The report also notes that the offender has "distanced himself from anti-social peers and mainly spends time with his girlfriend and considered his brother as his best friend". The offender's alcohol consumption has reduced significantly and he has attended the SMART Recovery Program. The organisers of the program have said that the offender "does not need to continue further engagement at this time due to his progress and limited alcohol intake and abstinence from illicit drugs". The report confirms that the offender "has been subject to alcohol and drug testing throughout the assessment period and all tests have returned negative or 0:00".

32. It seems obvious to me that the offender has made real efforts to improve his lifestyle and limit his exposure to situations in which anti-social behaviour would flourish. This is the very point of rehabilitation. The Crown, in its written submissions, advocates a period of fulltime imprisonment. There is a very real danger that fulltime imprisonment would add to the tragedy of a situation which has already seen the victim seriously injured. If the perpetrator was placed in an environment where his good work to date was reversed, he could once again become a drug user familiar with violence.

33. In my view, the recommendation in the assessment report must be taken up and an ICO ought to be imposed. It must be remembered that the imposition of an ICO is not a lenient sentence. Its content will require strict adherence and, if this is not followed, could result in a period of fulltime custody.

34. The appropriate sentence for the offence of recklessly inflict grievous bodily harm is 30 months' imprisonment, which I reduce by 25% because of the plea of guilty. I will impose a sentence of six months' imprisonment (reduced from eight months' imprisonment) for the common assault, to be served concurrently with the other sentence.

(a) In respect of the offence of recklessly inflict grievous bodily harm (CC 5646/17), the offender is sentenced to 1 year 10 months and 15 days' imprisonment commencing on 15 May 2018 and ending on 29 March 2018.

(b) In respect of the offence of common assault (CC 2017/5645), the offender is sentenced to 6 months' imprisonment commencing on 15 May 2018 and ending on 14 November 2018.

(c) Pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT), the offender is to serve his sentence by way of Intensive Corrections Order. I impose the core conditions. I impose an additional condition that the offender undergo anger management counselling.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.