R v Myles [2017] ACTSC 194

Sentenced to one year and 10 months' imprisonment to be served by intensive corrections order with 249 hours of community service work.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - offences against the person - recklessly inflict grievous bodily harm - guilty plea - one punch attack - offender intoxicated - no relevant criminal history - good prospect of rehabilitation - whether sentence to be served by intensive corrections order or full-time imprisonment - intensive corrections order with community service

Crimes Act 1900 (ACT) s 20

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35, 80D(6)

R v Amosa [2015] ACTSC 34

R v Bartlett [2016] ACTSC 390

R v Bartlett (No 2) [2017] ACTSC 51

R v EL [2016] ACTSC 241

R v Sharma [2016] ACTSC 180

R v Seretin [2016] ACTSC 45

R v Smith [2016] ACTSC 330

Sharma v The Queen [2017] ACTCA 8

1. The offender is to be sentenced for the offence that, on 23 October 2016, he recklessly inflicted grievous bodily harm on Jason Aylott.

2. This is an offence against s 20 of the Crimes Act 1900 (ACT) (Crimes Act) that carries a maximum penalty of 13 years' imprisonment.

3. The offender pleaded guilty at the third mention before the Magistrates Court. Although the Crown case was strong, the utilitarian value of the plea is high. I will allow a discount of 25 per cent pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

4. Between 7 pm on Saturday, 22 October 2016 and 3 am on Sunday, 23 October 2016, the offender consumed about 15 beers (approximately 21 standard drinks). The offender attended the Academy Nightclub in Civic with his then partner and three others.

5. At about 2 am on Sunday morning, he followed his partner downstairs towards the main dance floor at the Academy Nightclub. As she was walking down the stairs, the offender's partner greeted the victim, leaning over to give him a quick hug. The offender mistakenly concluded that the victim was his partner's former boyfriend. He believed that his partner and the victim had "cheated on him". The offender raised his right arm and punched the victim in the lower right jaw with a closed fist. Although it was forceful, the punch did not cause the victim to fall to the ground.

6. The Court acknowledges the serious injury caused to the victim.

7. The victim read a victim impact statement to the Court.

8. Initially, the impact of the injuries put the victim in "agony". He was conveyed to Canberra Hospital. His jaw was fractured in two places. On 24 October 2016, he underwent surgery. Six screws and two plates were inserted into his jaw. They will remain there permanently. Recovery took some time. The victim was off work for six weeks. He had difficulty consuming solid food for seven weeks and lost five kilograms in weight.

9. The psychological consequences of the incident were perhaps greater than the physical consequences. The victim continues to consult a psychologist. He suffered sleep disturbance over several months. He suffered a significant exacerbation of anxiety and he lost confidence, including physical confidence. He has decided that he will never return to playing rugby football. He avoids some activities because of the loss of physical confidence or motivation to engage in them. He remains hyper-vigilant. Changes to the victim's personality contributed to the loss of a relationship. These difficulties are the sorts of emotional and psychological difficulties that one would expect to flow from an attack of this nature.

10. The offender has expressed empathy towards the victim and was keen to engage in restorative justice. However, it is understandable that the matter was assessed as not suitable for restorative justice. The offender provided a letter to the Court in which he accepted full responsibility for his actions and expressed remorse for the victim. The Court also received a copy of a letter that the offender wrote to the victim when he was hoping to engage in restorative justice.

11. All offences against s 20 are serious matters, as indicated by the maximum penalty of 13 years' imprisonment, which is a critical sentencing parameter.

12. As a number of cases have observed, the objective seriousness of a particular s 20 offence is to be assessed by reference to its two components: the conduct of the offender (and the associated degree of recklessness) and the nature of the grievous bodily harm to the victim: R v Sharma [2016] ACTSC 180 (Sharma); R v Amosa [2015] ACTSC 34 (Amosa); R v Smith [2016] ACTSC 330 (Smith); R v EL [2016] ACTSC 241 (EL).

13. In this case, the offender deliberately delivered an unanticipated, unprovoked and strong punch to the victim's face. It is true that the conduct involved in a single punch may be of somewhat lower objective seriousness than a sustained attack, but a punch to the face is an obviously dangerous act, as the face is the most vulnerable area of the body. The offender's conduct was impulsive. There was no premeditation. Other aggravating features such as the use of a weapon, or the circumstance that the offence was committed in company, were not present.

14. The injury to the victim was serious but it was not the worst type of grievous bodily harm, bearing in mind that for any injury to amount to grievous bodily harm it must be a really serious injury. However, the victim was relatively lucky and the injury could have been much worse.

15. The fact that the offence was committed under the influence of alcohol is no excuse whatsoever. The potential for alcohol to cause immature young people to engage in violence is notorious.

16. At the time of the offence, the offender was 23 years old.

17. In the past, the offender had had minor interaction with the authorities in New South Wales, and alcohol was involved. However, there is no significant criminal history.

18. The offender is the youngest of four children. He described his family as quiet, strict and caring. In turn, the offender was described as having been a placid child. He remains close to his older brother, with whom he currently resides. He intends to continue residing with his brother and three-year-old nephew, to whom he is also close. His one significant past relationship was terminated by his ex-partner because of the offence.

19. The offender was raised in a small town in the New South Wales Riverina and moved to the ACT in his late teens. After finishing Year 10, he completed a Certificate III in solid plastering or rendering. Since leaving school, the offender has maintained consistent employment as a renderer. Currently, he is self-employed as a renderer, having started his own business about six months ago. He obtained a personal loan to commence the business and has been making the required repayments. He works long hours and the business is flourishing. If he is incarcerated on a full-time basis for a significant period, the almost inevitable consequence will be that he will suffer the extra-curial punishment of losing his new business.

20. At 19 years of age, the offender sustained a head injury when he was knocked unconscious in Civic. He stated that he suffers from poor short term memory. He has been diagnosed with an anxiety disorder for which he receives medication.

21. The offender has a history of polysubstance abuse. Between the ages of 16 and 19, he used cannabis heavily. He reported that, until two months ago, he used three to four lines of cocaine about once a month.

22. Alcohol has been the offender's principal drug of abuse. From 17 years of age, the offender was a weekly binge drinker. The offender said that it was not until the offence occurred that he realised that he had a significant problem with alcohol.

23. The offender now self-identifies as an alcoholic. Recently, he has been attending Alcoholics Anonymous which he finds to be very effective in reducing his alcohol consumption. He has minimised the extent to which he socialises in contexts where alcohol may be abused. Since the offence, the offender has regularly attended a gym as an alternative activity to drinking alcohol. He says that, at present, he consumes about two drinks on one evening of each week. His treatment goal is to avoid alcohol.

24. In March 2017, the offender began to consult Dr Merima Isakovic, a psychologist. He was treated with cognitive behavioural therapy, which taught him "reality checking" and behaviour designed to "assure safe behaviour/choices." The recent behavioural changes suggest that the treatment has been beneficial.

25. Referees attested to the offender's excellent character, speaking of his strong work ethic and describing him as a loyal and generous friend, thoughtful brother and caring uncle. They stated that the violence associated with the offence was out of character and that the offender is usually a respectful and courteous person who does not resort to violence in order to resolve conflicts. They confirmed that the offender is very remorseful about the offence, guilty about the impact on the victim and ashamed of letting down his own family. They spoke of his commitment to addressing the problem of alcohol abuse.

26. The offender has been accepted into the Karralika Justice Services AOD Counselling program.

27. The CADAS Report states that the offender would benefit from alcohol counselling and needs to pursue treatment with his general practitioner, particularly in relation to symptoms of anxiety, suicidal thoughts and reported blackouts associated with taking anti-anxiety medication together with alcohol.

28. The offender has been assessed as suitable for an intensive corrections order (ICO) in which treatment would target alcohol consumption and anger management.

29. The offender has been assessed as not suitable for a community service work condition "specifically due to personal circumstances, in particular his current work commitments." This does not prevent a court from imposing a community service condition on an ICO if the court explains why it has done so: Sentencing Act s 80D(6)

30. I am required to take into account the matters referred to in s 33 of the Sentencing Act matters insofar as they are relevant and known. I have referred to those matters above.

31. I am required to take into account the sentencing purposes in s 7 of the Sentencing Act.

32. General deterrence is a very important sentencing consideration. The community is gravely concerned about the prevalence of alcohol fuelled "one punch" attacks by young men. Such attacks may devastate the lives of victims, and they impact on the ability of other young people to confidently enjoy public socialising. The sentencing purpose of general deterrence must be clearly reflected in the sentence that is imposed.

33. Rehabilitation is another very important sentencing consideration. The offender is a young man with no relevant prior criminal history and excellent prospects of rehabilitation, particularly as he has recognised that, but for his alcohol abuse, the offence may not have occurred. He is actively addressing his alcohol problem, with positive results. From the community's perspective, it would be counterproductive to impose a sentence that undermined the offender's prospects for rehabilitation.

34. On the other hand, punishment, accountability, denunciation and recognition of harm to the victim are also sentencing purposes that are important in this case. As already mentioned, there is a general harm to the community that occurs when behaviour of the type in question is normalised. In sentencing the offender, the Court must recognise the general harm to the community.

35. I have had regard to comparable cases. The facts in Sharma were very similar, in relation both to the objective seriousness of the offence and to the offender's subjective circumstances. The sentencing judge considered that an ICO was too lenient. In Sharma v The Queen [2017] ACTCA 8, the Court of Appeal dismissed the appeal.

36. On the other hand, ICOs were imposed in the not dissimilar cases of R v Bartlett [2016] ACTSC 390 (see also R v Bartlett (No 2) [2017] ACTSC 390) and EL. Other cases that are somewhat similar are Amosa, Smith and R v Seretin [2016] ACTSC 45.

37. Because of the objective seriousness of the offence, the only appropriate sentence is a sentence of imprisonment. The defence made that concession.

38. I consider that the appropriate starting point for the sentence is two years and six months' imprisonment, less a discount of 25 per cent, arriving at a sentence of one year and 10 months' imprisonment.

39. The difficult question is how that sentence should be served; whether it should be by a short period of full time imprisonment with the majority of the sentence suspended, or by an ICO.

40. A sentence of full-time imprisonment would be counter-productive in terms of rehabilitation and would have the effect of imposing extra-curial punishment on the offender. On the other hand, attacks of this nature call for a very significant message of general deterrence and the sentence must reflect punishment, accountability, denunciation and recognition of harm. It is common sense and it has been acknowledged in numerous decisions that, while an ICO is a sentence of imprisonment, it contains a strong element of leniency when compared to a sentence of full-time imprisonment. ICOs also serve to punish offenders and address other sentencing purposes, but they do not address those considerations to the same extent as does a sentence of full-time imprisonment.

41. Unfortunately, the option that I would have preferred, referral to a drug and alcohol court, is not yet available in this jurisdiction. Further, the Court does not have the option of combining an ICO with other forms of imprisonment.

42. The prosecution took a neutral position in relation to the appropriate way to proceed. It did not endorse the defence submission that an ICO was a sufficiently severe sentence. The prosecutor stated that, in the event that the Court proposed to proceed by way of an ICO, the Court should give serious consideration to imposing a community service condition on the ICO, despite the fact that the ICO assessment states that the offender is not suitable for a community service work condition due to his work commitments.

43. In order to consider the difficult sentencing decision, I adjourned the matter for a week. During that period, bail was refused. It is to be hoped that the adjournment afforded the offender a further opportunity to reflect on his conduct and the harm that it caused.

44. In the result, I decided that, if combined with a significant community service condition, an ICO was adequate to address all sentencing purposes. I am well aware that the condition may interfere with the offender's capacity to devote as much time as he would wish to his business. However, that is a small and very reasonable price to pay to avoid full-time imprisonment. It is necessary that a community service condition be imposed in order to adequately address the sentencing purposes of accountability, denunciation and recognition of harm to the victim and the community.

45. I am satisfied of the requirements in ss 77 and 78 of the Sentencing Act. I have stated my reasons for imposing a community service condition in the face of the contrary recommendation.

46. The offender is convicted and sentenced to one year and 10 months' imprisonment from today. I order that the sentence be served by intensive correction in the community. I impose a community service condition requiring that the offender undertake 249 hours of community service work within 12 months.

I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.