R v Ngata [2020] ACTSC 9

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2020] ACTSC 9

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - common assault - recklessly inflict grievous bodily harm - early pleas of guilty - offending in higher range of objective seriousness - offender a trained boxer - strong evidence of remorse - no criminal history - risk of deportation - full-time imprisonment onerous upon the offender's family - partially suspended sentence imposed - good behaviour order

Crimes Act 1900 (ACT), ss 20, 26

Crimes (Sentence Administration) Act 2005 (ACT)

R v Amosa [2015] ACTSC 34

R v Butters [2019] ACTSC 143

R v Chapman [2018] ACTSC 57

R v Hidic [2017] ACTSC 307

R v Verdins [2007] VSCA 102; 16 VR 269

1. Ilaisa-Taka-I-Monu Ngata, also known as Elijah Ngata (the offender), has pleaded guilty in the Magistrates Court to the following indictable offence: one count of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT), the maximum penalty being 13 years' imprisonment (CC2019/6335).

2. The offender also pleaded guilty to the following related summary offence: one count of common assault contrary to s 26 of the Crimes Act, the maximum penalty being two years' imprisonment (SCCAN2020/5).

3. Both offences occurred during the early hours of Sunday, 19 May 2019. The offender was at the Monkey Bar nightclub in Canberra. Prior to attending the nightclub he had drunk one litre of vodka.

4. At approximately 2.54am the offender was standing at the top of the staircase in the nightclub and began to have a verbal argument with the victim of the common assault, who I will refer to as OU. Despite security staff attempting to intervene, and OU standing with his arms by his side, the offender punched OU on the right side of his face with a closed fist. This caused OU to fall onto the security staff, who moved him to the top of the staircase. OU began to walk down the stairs but then collapsed and slid halfway down, before standing up and walking down the rest of the stairs to exit the nightclub. The offender's actions inside the Monkey Bar nightclub were caught on closed circuit television (CCTV) footage.

5. The offender then followed OU downstairs and out of the nightclub, as did security staff and a number of other unknown males.

6. As he exited the nightclub, OU was grabbed from behind by an unknown male. The victim of the offence of recklessly inflicting grievous bodily harm, who I will refer to as BL, was standing outside the entrance to the nightclub and witnessed OU being grabbed and followed by a large group of people. Fearing for OU's safety, BL intervened by standing in between the unknown male and OU and holding his arms out whilst walking OU away.

7. BL walked OU to the footpath near the entrance to the nightclub. The offender then approached BL, who was still holding onto OU and had his arms outstretched in front of him in a protective manner. BL said words to the effect of "please don't do this!".

8. The offender ran towards OU and BL and punched BL with his right hand in a closed fist. This caused BL to lose consciousness, and he fell to the ground on his back. The offender then moved to OU, who was covering his head with his arms in a defensive manner. As the offender attempted to grab OU, OU was punched by an unknown male. A large disturbance ensued, with multiple unknown people fighting.

9. The offender was eventually held back by an unknown female and walked away with four other people. BL's partner and other members of the public rendered assistance to BL. OU stood up and walked away.

10. The offender walked away down Petrie Plaza and was shortly thereafter stopped by police who had arrived at the scene of the assault.

11. All of the offender's actions in the public areas of Canberra City were caught on public safety CCTV cameras, and some of the incident was also captured on a mobile phone by a concerned bystander. The video is disturbing in that it shows the ease and violence with which the offender struck BL as he rushed towards OU.

12. The victim BL prepared a victim impact statement which was read aloud by the prosecutor. The victim describes the anxiety and anger that he has felt since the assault. He is scared to engage in the social activities that he used to enjoy for fear of being assaulted again.

13. The victim describes the impact the assault has had on his girlfriend, and how culturally it has been hard as he feels he cannot protect his family. He recognises that he needs counselling but describes feeling too embarrassed to obtain it.

14. He also describes the physical effects of the assault. He was put on life support and was in intensive care for two days. These physical injuries have resulted in him fearing that he could injure himself further. He has also struggled at work with concentration and no longer has any sick days left.

15. He has seen Facebook posts about the offender, and the offender has also spoken to members of his family. This has angered him and added to his stress.

16. His partner of seven years also wrote a victim impact statement which was read aloud by the prosecutor. She describes the impact of seeing her partner in his injured state and thinking he was going to die. She notes that she now suffers from severe anxiety.

17. She describes the anger she felt when she saw a news article and Facebook posts about the offender. She has received counselling which has helped but not resolved all her issues. She describes the strain that the assault has put on their relationship. The assault has also resulted in her working reduced hours at work in order to support BL. She also feels more antisocial due to fears of being injured herself in similar circumstances.

18. The objective seriousness of the offence of recklessly inflicting grievous bodily harm has two aspects: the nature of the behaviour in which the offender engaged which is indicative of the offender's moral culpability, and the nature of the grievous bodily harm that was suffered by the victim.

19. As far as the offender's behaviour and moral culpability are concerned the offence is of significant seriousness. Although there was only one blow, it was a fierce one directed to the victim's head. The circumstances in which it was given increase the moral culpability of the offender in that the victim was attempting to non-violently de-escalate the situation and hence avoid any further confrontation between the offender and OU. He was an innocent person who had done nothing to provoke the offender and was acting appropriately by attempting to non-violently de-escalate a likely violent confrontation. The offender must have been well aware of his own capacity to inflict violence upon others, being a competitive kickboxer and having a history of playing semi-professional rugby. That known capacity to inflict violence makes his use of it more morally culpable.

20. The injuries caused were in fact grave. The victim suffered a closed head injury and required emergency treatment at the scene and in the ambulance on the way to the Canberra Hospital. He was in a life-threatening condition and required immediate airway management in order to preserve his life and emergency surgery in order to preserve his vision. The injuries he suffered included broken ribs, the collection of blood in his chest cavity, a fractured cheekbone and fractured eye socket. He was required to be placed in an induced coma. He was hospitalised for five days and was subsequently admitted for another two days for surgery.

21. There was no premeditation on the part of the offender. It was a spontaneous act of significant violence directed to an innocent person on the offender's way to inflict further violence on OU.

22. It is not in the most serious category of case because of the absence of premeditation or use of a weapon and the potential for even graver injury to fall within the scope of this offence. It is similar to, but somewhat less serious than, the circumstances in R v Amosa [2015] ACTSC 34 (Amosa).

23. The common assault on OU was a violent blow to the head. There was some verbal provocation of the offender. While it was a blow to the head there was no evidence of further consequences of that blow. It is an offence in the mid-range of objective seriousness for a common assault.

24. The offender is a 29-year-old New Zealand citizen. He was born in Auckland. He has two children with his former partner and two children with his current wife. The offender and his then partner had their first child when they were 18 and their second child when they were 20 years old. They came to Australia in 2009. He and his partner lived at the Gold Coast where he pursued a career in rugby, until 2011 when he injured his knee and they returned to New Zealand. In 2014 he returned to Canberra and had a contract to play for the Queanbeyan Tigers (a rugby team). He played for that team for three years and stopped because of kidney problems in 2017. He was then working for a security company and is still employed by that company. In 2018 he married his current wife. They have two children aged 18 months and one month respectively. He is in the process of completing a Certificate Four in Fitness and hopes to establish a personal training business.

25. The subjective circumstances of the offender are described in a pre-sentence report prepared by ACT Community Corrections.

26. He is one of eight children of his parent's relationship. There were also two stepchildren that formed part of the family but not referred to in the pre-sentence report. He reported to the author of the pre-sentence report that he had a "stable, loving yet strict childhood". His family was financially poor, but the offender was able to obtain scholarships for his schooling.

27. The offender maintains a close and loving relationship with both his parents. He has not disclosed the offences to his parents, due to concerns about his father's poor health and adding stress to his parents.

28. After completing Year 12 at high school, he obtained a security licence and reported consistent employment as a security guard. He is close to completing what he described in the report as a Diploma in Health and Fitness.

29. He is the father of four children. His two eldest children live with their mother, with whom the offender currently has a good relationship, and they visit him during school holidays. The offender has two younger children with his current wife. He described his current relationship as a loving and supporting one, which his wife agreed with. His wife stated that she was very disappointed when her husband told her about his offending, but she remains supportive.

30. He has lived at the same address with his wife and their two children for the past few years. He reported that all his associates are prosocial, which his wife agreed with. He engages in social activities such as rugby, boxing and kickboxing weekly.

31. He stated that he has an $8,000 loan which he is comfortably paying off whilst also meeting his other financial commitments.

32. He viewed his alcohol consumption as unproblematic, despite it being associated with his offending. His wife concurred with this view, reporting that he does not drink alcohol around her and drinks at birthdays and holidays. The author of the pre-sentence report identified his alcohol use as at a low risk level.

33. He reported no concerns regarding his general health. Contact between the author of the pre-sentence report and his treating psychologist revealed that he was being treated for depression and anger issues. The psychologist reported that the focus of the sessions was on maintenance and relapse prevention, as the offender no longer met the criteria for depression. The offender reported that he had not been treated for mental health prior to his offending, and he was shocked at his behaviour and wanted to know why he had become violent.

34. In relation to his attitude to his offending, the offender "did not try to justify or minimise the impact his actions had on the victim and his family". He stated that he hoped to have the opportunity to apologise personally to the victim sometime in the future.

35. The opinion of the author of the pre-sentence report is that:

[The offender] has been assessed as a low risk of general reoffending. [The offender] possesses significant protective factors being his family, prosocial associates, leisure activities, stable employment, stable accommodation, and adequate finances management.

36. The author assessed the offender as being suitable for a good behaviour order and community service work.

37. Counsel for the offender tendered a psychological report prepared by Dr Danielle Clout dated 20 December 2019. Dr Clout assessed the offender as having developed symptoms consistent with Major Depressive Disorder in 2017 due to a multitude of personal stressors. As such, it is Dr Clout's opinion that the disorder predated the offence. These symptoms worsened in early 2019, and by Dr Clout's initial assessment in August 2019, she assessed the offender as having moderately severe symptoms of Major Depressive Disorder. However, Dr Clout described the offender as having a positive response to Cognitive Behavioural Therapy based interventions, and that by 21 October 2019 his Major Depressive Disorder was in full remission.

38. The report records that the offender is at a low risk of reoffending, with his only risk factor being self-esteem problems which are potentially changeable with appropriate intervention. Dr Clout expresses the opinion that a sentence of full-time imprisonment would weigh more heavily on the offender, due to the severity of his previous episode of Major Depressive Disorder and his current family circumstances.

39. Counsel for the offender also tendered a report from migration consultant John Hourigan to describe the effect that a sentence would have on the offender's right to stay in Australia. The offender is currently the holder of a Subclass 444 Special Category Visa. This is a temporary visa and does not afford the offender with the same rights as Australian citizens and permanent residents.

40. The evidence was to the effect that the offender's visa will be mandatorily cancelled if the offender receives a head sentence of 12 months or more. If the offender received a non-custodial sentence, any cancellation of his visa would be discretionary. Where a mandatory cancellation occurred then he would have 28 days to apply for the revocation of the visa cancellation. Although in the report Mr Hourigan points to comments by the relevant minister that "he has little to no tolerance for the continuing presence in Australia for visa holders committing serious and violent crimes", Mr Hourigan expresses no direct opinion as to the likely outcome of any application for revocation of a cancellation.

41. Counsel for the offender tendered an apology letter dated 20 December 2019 from the offender to BL. In that letter, the offender notes that he takes full responsibility for the assault and is highly remorseful of his actions. There is no evidence that the letter has been provided to the victim. Counsel also handed to counsel for the Crown a bank cheque from the offender in the sum of $3000 made out to BL.

42. Four character references were also tendered by the offender's counsel. The first, from a friend and work colleague who has known him for 15 years, describes him as "a man of integrity and a man of honour", attests to the offender's remorse and describes him as "an honourable citizen". The second reference, from an employee of the nightclub where the offender works as a security staff member, describes him as "one of the most reliable and most reputable security guards on the team". The reference also describes the offender as being "incredibly remorseful" and as a "respectful, reliable and very hard worker". He describes the offending as being out of character. The third is a letter from the offender's former partner who describes the financial and parental support that has been given to her in the raising of their two children. It also describes the plan to have their eldest child relocated to Canberra so as to have the steadying influence of his father. A letter from the Chief Steward of the Tonga Parish Uniting Church in Australia, Canberra Congregation indicates his encouragement of the offender to become more involved in the local Tongan community and the offender's willingness to do so.

43. The offender gave oral evidence about his history of playing rugby, boxing and kickboxing. He gave evidence of his current employment. He gave evidence that on the day of the offending he was celebrating his son's first birthday and that was a culturally significant celebration. His sister had come from New Zealand and he had an argument with her. He gave evidence that there was some difficulty with his eldest sons attending and that there had been stressful relations with his former partner in relation to those two children. He gave evidence that in the year prior to his offending he had been unmotivated, put on weight and was easily overwhelmed. He thought it was just a phase at the time. Subsequent to the offending he received psychological treatment involving cognitive behaviour therapy. He gave evidence about the offending conduct and that OU had said "I'll shoot you you black coconut" prior to the offender punching him.

44. He indicated that he was disgusted and ashamed at what he had done when he found out that BL had been taken to hospital and was on life support. He indicated that he wished to apologise to BL, and it is for that reason that he wrote a letter of apology and saved over seven months the sum of $3000 which he was to give to BL. He also gave evidence of the financial support that he gave to his previous partner in relation to the care of his two eldest sons. He said that there was a plan for the eldest of those two sons to come and live with him and his family because his former partner was having difficulties dealing with his behaviour.

45. He gave evidence of where he would live if he was deported to New Zealand and that his wife and children may stay in Australia if that occurred.

46. He gave evidence of the hands-on role that he performed in relation to his two younger children in order to support his wife.

47. The offender's wife gave evidence that she was a public servant on maternity leave and that she and the offender had two children together. She described the major role that he plays in caring for their two children, the financial support that he provides to his former wife in relation to his two oldest children and the complications and stressors that arose in the relationship with his former partner, particularly over the care of the two oldest children. She corroborated the offender's evidence about the effect of these factors on his mood in the year prior to the offending, in particular the effect upon his sleep, weight and his capacity to deal with adversities.

48. She described the argument between the offender and his sister and said that he was distraught.

49. She also described the consequences for her and her family if the offender was incarcerated. That included a financial impact as well as the loss of physical and emotional support. She also described the difficulties that would arise if as a result of his sentence he was deported and her reluctance to put her two children at a disadvantage which she perceived would arise if they were moved to New Zealand.

51. The offender entered a plea of guilty to the charge of recklessly inflicting grievous bodily harm in the Magistrates Court on 10 September 2019 at the third mention. He entered a plea of guilty to the common assault charge on 28 January 2020, being the day of the current sentencing proceeding and the earliest available opportunity following discussions between the parties.

52. The offender has not spent any time in custody in relation to these offences.

53. The offence of recklessly inflicting grievous bodily harm is a serious one carrying a significant maximum penalty. The offending in this case is objectively very serious, involving both a high degree of moral culpability and very significant injury to the victim.

54. Having regard to the social and legislative tolerance of excessive alcohol consumption, general deterrence is a significant sentencing consideration. It is necessary to deter young males from engaging in alcohol fuelled violence in public places. Punishment, accountability, denunciation and recognition of the harm done to the victim of crime and the community are also important sentencing considerations. Although the actions of the offender were out of character, specific deterrence remains a sentencing consideration.

55. The personal circumstances of the offender are favourable in that:

(d) he has four children including two young children;

(e) he has been an actively involved parent in relation to those children;

(f) both his former partner and his wife depend upon him to assist with the care and upbringing of those children;

(g) he has demonstrated remorse and made an attempt to provide some compensation to one of the victims of his offending; and

(h) he is assessed as being at a low risk of general reoffending.

56. The case falls into the category of case in which the imprisonment of the offender will have a greater than usual effect on the members of his family because of the age of his children with his wife and the financial and parenting support that he provides to his former partner in relation to their two children together.

57. I accept the evidence of Dr Clout that as a result of his previous history of depression he is at a higher risk of developing a further episode of depression whilst in custody and that his current family circumstances are likely to make a sentence of imprisonment more burdensome than a person without those circumstances. I do not accept the submission by counsel for the offender that the offender's mental health condition contributed to his offending conduct. While there is a possible chain of indirect causation it is too remote to warrant consideration in the Verdins sense. It is possible however to take into account the evidence concerning the offender's mental health in the period prior to the offending as part of his subjective circumstances. It is important to note that in addition to the evidence of the offender, his wife and Dr Clout about his personal circumstances in the year prior to the offending, there was also evidence that he was continuing to pursue competitive kickboxing during that period, something that would have required significant motivation and drive. This evidence makes the picture of his mental state in the period prior to the offending somewhat more complicated.

58. There is also a significant possibility that if a sentence of full-time imprisonment is imposed or if the sentence exceeds 12 months, he will be subject to deportation to New Zealand at the conclusion of the whole or part of his sentence. Having regard to the review of the authorities in R v Butters [2019] ACTSC 143 (Butters) at [81]-[102], I proceed on the basis that it is open to take into account the prospect of deportation in sentencing but that a sentence may not be crafted in a way so as to avoid the migration legislation: see Butters at [95]. In the present case it is not possible to say that deportation is almost certain. There is certainly a discretion that may be exercised by the minister to revoke a mandatory cancellation of the offender's visa. However, it is possible to say that there is a real prospect of deportation that goes beyond merely a speculative possibility.

59. I have taken into account the cases to which I was referred for the purposes of determining current sentencing practice as well as the cases referred to therein. The cases were Butters, R v Chapman [2018] ACTSC 57, R v Hidic [2017] ACTSC 307 and Amosa.

60. While in the absence of strong subjective factors a significantly greater penalty would be appropriate, having regard to the strong subjective circumstances of the offender the starting point is a sentence of imprisonment of two years. That is reduced by approximately 20% on account of the plea of guilty. While usually having regard to the timing of the guilty plea a 25% discount would be appropriate, regard must be had to the very strong Crown case against him. This gives a sentence of 19 months. Unfortunately, the gravity of the offending is such that a period of full-time custody cannot be avoided. Having regard to the offender's personal circumstances and the fact that this will be his first period in custody, a relatively short period of imprisonment prior to the suspension of the sentence is appropriate. The sentence will be suspended upon the offender having served three months of full-time detention. The good behaviour order associated with the suspension of the sentence will also include a requirement for a period of community service.

61. On the charge of common assault, a young man in his position would usually be dealt with by way of a fine and good behaviour order. Having regard to the other sentence being imposed and the financial consequences for him and his family of the imposition of that sentence, it is appropriate to dispose of the common assault charge by a good behaviour order without a fine.

1. On the charge of recklessly inflicting grievous bodily harm the offender is convicted and sentenced to imprisonment for a period of 19 months from 30 January 2020 until 29 August 2021.

2. The sentence is to be suspended after the offender has served three months by way of full-time detention from 30 January 2020 until 29 April 2020 upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 16 months with the condition that he perform 100 hours of community service and a probation condition until the community service has been completed.

3. On the charge of common assault the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations for a period of nine months.

I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.