R v Pumpa [2014] ACTSC 223

Supreme Court of the ACT|2014-08-22|Before: Penfold J

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

See [33] to [37] below

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - 19-year-old offender to be sentenced for recklessly inflicting grievous bodily harm - prior conviction for "one punch" assault - effect of parents' divorce and mother's mental illness and substance abuse - offender's insight into causes of offending and recent abstention from alcohol - report from psychologist - depression - risk of imprisonment without proper treatment - sentence of imprisonment necessary - need to weigh deterrence, denunciation and protection of community against community's interest in rehabilitation of young man - sentence of imprisonment for two years and eight months - first 12 months of sentence to be served as periodic detention and remainder suspended.

Carberry v The Queen [2013] ACTCA 20

R v Daniel Byrne [2014] ACTSC, Murrell CJ, 3 February 2014

R v Donal Brian Murray [2012] ACTSC, Higgins CJ, 26 March 2012

R v Loveridge [2014] NSWCCA 120

R v Malcolm D'Aquino [2010] ACTSC, Refshauge J, 9 June 2010

R v Neish [2013] ACTSC, Refshauge J, 24 May 2013

Legal Aid ACT (Offender)

1. Tyran Pumpa has pleaded guilty to one charge of recklessly inflicting grievous bodily harm, an offence which arises under s 20 of the Crimes Act 1900 (ACT) and carries a maximum penalty including imprisonment for 13 years (that penalty was increased in 2011 from 10 years imprisonment).

2. The offence was committed shortly after 1.00 am on 8 March 2013, on London Circuit outside Mooseheads. The complainant left Mooseheads with a friend and walked across London Circuit towards the car park. As they crossed the road they engaged with another group of young men, apparently over a comment made about the complainant's friend's tattoo. Mr Pumpa followed the complainant and his friends and, with a closed fist, punched the complainant on the left side of his face. The complainant lost consciousness and fell to the ground. The police and an ambulance were called, and the complainant was taken to hospital. He had suffered various injuries including:

(a) a fractured skull;

(b) a left-sided extra-axial haemorrhage in the left parieto-occipital region;

(c) a fracture of the right occipital bone;

(d) a ruptured left ear drum and left haemotympanum; and

(e) a temporal pole haematoma.

3. The medical evidence is that the complainant's head injuries were very serious, and might have permanent or long-lasting consequences, including an increased risk of dementia, ongoing hearing difficulties, pain and possibly psychological problems arising from the trauma of the incident. Some of those consequences may only become apparent after many years, but there is no evidence before me that any of the more immediate possibilities have yet emerged.

4. Police found Mr Pumpa in a nearby car park shortly after the assault, and arrested him in relation to another matter. Later he was identified in an identification parade by one of the complainant's companions on the night. He was charged and pleaded not guilty on 7 November 2013, but then entered a guilty plea in the Magistrates Court in January 2014, and was committed to this court for sentence. This will be recognised as a relatively early plea having regard to Mr Pumpa's difficulties with legal representation.

5. Mr Pumpa has spent no time in custody for this offence.

6. This was objectively a relatively serious example of a grievous bodily harm offence, given that although it might have emerged from an unfriendly engagement between two groups of people somewhat the worse for alcohol consumption, there is no claim that it was provoked by any particular threat or other conduct, although the CCTV footage does seem to show the complainant turning to face Mr Pumpa as the group moved across London Circuit. The injury resulted from a single punch rather than a sustained attack, but it is both clear and, one might think, widely understood that even a single punch can have devastating consequences. The Crown concedes that it is not clear whether the punch, being the direct hit to the complainant's face, or the impact of his fall, had more of a role in the serious injuries sustained by the complainant, but I do not see that it matters - Mr Pumpa must clearly take responsibility both for his punch and for the natural consequences of it.

7. It is an aggravating factor that Mr Pumpa was at the time of this offence on bail in relation to an earlier violent offence, about which I will have more to say.

8. Having regard to all these factors, I consider this offence to be only slightly below mid-range seriousness.

9. Mr Pumpa is not quite 20. His criminal record is not particularly long but it contains two significant entries.

10. In May 2013 he was sentenced to a fully-suspended four months imprisonment for an offence of assault occasioning actual bodily harm committed some months before the current offence.

11. The assault occasioning actual bodily harm was committed inside the Gungahlin Marketplace. Mr Pumpa appears not to have known the victim, who was pointed out to him as having a connection with Mr Pumpa's girlfriend. Mr Pumpa believed the suggestion was that his girlfriend was cheating on him with the victim. Mr Pumpa approached the victim and hit him in the face with a closed fist. The victim's jaw was broken in two places. Mr Pumpa hit him at least once more before the victim got away.

12. In that case, Mr Pumpa was not immediately identified as the offender but contacted the police himself several days later after learning from his cousin that the assault had been "on the news" and that the victim had suffered a broken jaw. In due course he was arrested, and told police:

(a) that he had been intoxicated and feeling angry;

(b) that he thought there was going to be a fight and he wanted to get the first punch in; but

(c) that he had not intended to injure the victim.

13. Mr Pumpa also told police that he did not realise a punch could cause so much damage.

14. Late last year Mr Pumpa was sentenced for an offence of affray committed in July 2013, four months after the current offence. At about 3.30 am, police in East Row in Civic saw Mr Pumpa punch another man and throw him to the ground. When police tried to arrest Mr Pumpa, he ran away and hid under a car. When he was eventually dragged out from under the car, he continued to resist police, apparently quite violently, until he was put into a caged vehicle. It seems that on that occasion too Mr Pumpa was affected by alcohol and also possibly by some other substance.

15. I note also that Mr Pumpa's mother was involved in that incident, and was arrested for trying to obstruct police who were chasing Mr Pumpa. This later offence of Mr Pumpa's is not directly relevant in assessing the offence for which I must sentence him, though it may have implications for issues such as rehabilitation.

16. The Pre-Sentence Report contained only limited information about Mr Pumpa's background, so I have taken this more detailed description from a report prepared for Mr Pumpa by psychologist Dr Michael Barry:

Mr Pumpa was born in Canberra ... . His parents separated in 2004 when he was aged approximately 9 years and he subsequently lived with his mother. His father reported that the separation was not amicable and resulted in conflict over access for approximately nine months. After this time, Mr Pumpa spent weekends with his father as well as some evenings during the week.

After their divorce both of his parents repartnered. Mr Pumpa has [three half siblings].

He described his childhood as unremarkable, stating that while his parents were together, his father tended to "be in charge". Following their separation, however, he advised that "everything went downhill" because his mother suffered from mental health issues and provided minimal and inconsistent discipline. According to [an earlier presentence report], Mr Pumpa's mother advised that he was "distraught" during the separation, and he advised that it was "difficult" for him to see his parents with new partners.

Despite his mother's difficulties, Mr Pumpa reported that he felt close to his mother and felt sorry for her, as she had lost her job after returning from maternity leave and remains unemployed. He stated that she drank heavily, was abusive and violent, and that he felt she was a "negative influence" on his life, frequently harassing him about getting a job and about money, and being abusive and aggressive towards his girlfriend. He stated that he tried to avoid her when she was drinking but they frequently fought particularly when he felt the need to defend his girlfriend, ... He also described his mother as lacking "forward planning" skills and "being in denial" about the reality of the separation.

Mr Pumpa also stated however, that he was more like his mother in terms of personality, while his brother was more like his father. Mr Pumpa describes his father as "too strict" and "controlling" and reported that they hadn't talked since early in the year when his father had withdrawn his financial support for his legal matters. Where he had previously stated that he now felt that he was becoming more like his father who was more "responsible and mature", and that he was starting to "settle down", he now described himself as lacking motivation and focus, stating that he was drifting through each day with little sense of purpose.

...

Ms Rebecca Barnes, Mr Pumpa's aunt, has provided additional information about Mr Pumpa's developmental and family history in the form of a character reference.

In her statement, Ms Barnes describes Mr Pumpa's history of depression which she attributes in part to his parents' divorce in 2004. She states that the impact of growing up without a strong father figure, and a mother with mental illness has "had a profound effect on his ability to enter manhood successfully". This is consistent with Mr Pumpa's father's advice at the time of my previous report in November 2013, that there was little continuity in his influence over Mr Pumpa following the divorce.

Ms Barnes also states that Mr Pumpa blames himself for his parents' divorce, and his mother's illness, which has caused him to feel hopeless and to mourn the loss of a healthy mother and normal childhood. This is partially consistent with Mr Pumpa's own statements that he felt "close to" and "sorry" for his mother, and remained in contact with her out of loyalty.

(a) that Mr Pumpa is in what is said to be a supportive relationship with his partner of 18 months;

(b) that he did not enjoy school, left during Year 11 and has no vocational qualifications;

(c) that earlier this year he was working in his father's civil engineering firm but has since become unemployed; and

(d) that, although as noted he claims to have cut right back on alcohol consumption, he continues to use cannabis regularly because he finds it helps to calm him.

18. Mr Pumpa has in discussions with his psychologist Dr Barry shown some insight about the impact of the offence on the complainant and his family and friends, and also about the causes of his offending behaviour, attributing it to intoxication. For this reason, he says, he has stopped drinking since early this year (except after several family funerals recently), and rarely goes out to Civic because it is dangerous.

19. Dr Barry said that he believed Mr Pumpa was very remorseful for his actions; he recorded Mr Pumpa's claim that at the time of the current assault, he "did not realise how serious a single punch could be", and his statement to Dr Barry that he is now very aware of the possible consequences of such attacks.

20. Mr Pumpa's claim to have sought a meeting with the complainant in order to apologise was confirmed by the prosecutor, who said that an approach had been made to the complainant but he had refused to meet Mr Pumpa.

21. No particular formal rehabilitation options have been proposed for Mr Pumpa, although Dr Barry has recommended treatment for depression including help in developing adaptive coping strategies, an anger management course, and perhaps some kind of cognitive behaviour therapy.

22. So far Mr Pumpa seems to have made several sensible decisions about how to avoid further offending, including significantly reducing his alcohol consumption and his visits to drinking venues, and Civic in particular. He says he now avoids associating with what the Pre-Sentence Report author calls "past negative influences" and spends his time instead with his partner and family.

23. I note also that Mr Pumpa has previously begun an anger management course but abandoned it because its focus on violence in domestic relationships meant that it did not seem particularly relevant to him.

24. There are suggestions in the CADAS report and from Dr Barry that Mr Pumpa is acutely depressed over the prospect of a custodial sentence. The CADAS report recorded claims from Mr Pumpa of low mood, suicidal ideation and recent self-harm, and recommended an assessment by Forensic Mental Health Services.

25. Dr Barry opined that incarceration without the provision of adequate treatment for Mr Pumpa's depression is likely to lead to the normalisation and maintenance of anti-social attitudes and to increase Mr Pumpa's risk of recidivism.

26. Dr Barry first saw Mr Pumpa in November 2013 in connection with another matter. He noted in the report that was before me that Mr Pumpa has not re-offended in the last 11 months, and that he was responsive to suggestions of obtaining treatment for his depression. However, Dr Barry also noted that Mr Pumpa has not pursued treatment since Dr Barry saw him last year, and that Mr Pumpa's current combination of problems suggests "that treatment would be challenging and that the treatment process is likely to experience setbacks."

27. It also appears that there has been no contact with alcohol or drug counselling services since 2012.

28. Mr Pumpa's claim that only now does he realise the risks of "one-punch" assaults would be more convincing if he had not, only a few months before the current assault, broken someone's jaw with a single punch and claimed not to have known that a single punch could do so much damage.

29. General deterrence and, perhaps even more importantly, personal deterrence are clearly relevant in this sentencing exercise. Denunciation of Mr Pumpa's actions, and the protection of the community, also seem to be particularly relevant, but they cannot entirely outweigh the community's significant interest in the rehabilitation of such a young man.

30. There is no dispute that this offence requires the imposition of a custodial sentence. The parties differ in how that sentence should be served, with the prosecutor submitting that some time full-time custody is necessary, but the defence urging a community-based sentence, especially having regard to Mr Pumpa's depression and his current low mental state.

31. I have been referred to a number of other sentences imposed in the ACT and New South Wales for similar offences, including those in the matters of R v Malcolm D'Aquino [2010] ACTSC, Refshauge J, 9 June 2010; Carberry v The Queen [2013] ACTCA 20; R v Daniel Byrne [2014] ACTSC, Murrell CJ, 3 February 2014; R v Neish [2013] ACTSC, Refshauge J, 24 May 2013; R v JS [2013] ACTSC, Nield AJ, 24 July 2013; R v Donal Brian Murray [2012] ACTSC, Higgins CJ, 26 March 2012; and R v Loveridge [2014] NSWCCA 120. I have considered them, but see no need to provide any further analysis of or commentary on those decisions.

32. In considering how this sentence should be served, I have taken account of Mr Pumpa's extreme youth, his mental health concerns, and the efforts that he has so far made to avoid the activities that put him at risk of re-offending, as well as Dr Barry's warning about the risks of incarceration for a person at Mr Pumpa's stage of life. I have also had regard to the importance of holding Mr Pumpa accountable for his behaviour and deterring him and other young men from the luxury of voluntarily becoming intoxicated such that they then consider it acceptable to lash out in response to some perceived rudeness, lack of respect, minor unpleasantness or even for no reason at all.

33. Mr Pumpa, please stand. I record a conviction on the charge of recklessly inflicting grievous bodily harm.

34. I now sentence you to imprisonment for two years and eight months, reduced from three years and six months for your plea of guilty.

35. For the reasons I have just mentioned, and because I consider that there are too many risks, not just for you but for the community, in sending you to full-time prison at this stage, I order that you serve the first 12 months of this sentence by periodic detention, with your first reporting date to be next Friday, 29 August 2014, and the last to be Friday, 21 August 2015.

36. After that the sentence will be suspended, and I order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for three years from today, with security in the amount of $1,000. The good behaviour order is subject to the conditions:

(a) that for such period not exceeding three years as Corrective Services directs, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General, or delegate;

(b) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer; and

(c) that you be assessed and, if found suitable, that you undertake the Men's Cognitive Self-Change Program.

37. I also order you to attend Corrective Services at Eclipse House within two working days (so that will be today or Monday) to arrange your supervision.

38. Periodic detention will require you to spend Friday and Saturday nights for the next year at the correctional centre in Symonston. You need to know, and this is very important, that if you turn up affected by alcohol or other drugs you will be sent away, that if you a miss a weekend it will have to be made up, and that if you miss more than a couple of weekends for any reason, you will be at risk of having to serve the rest of that periodic detention period in full-time custody.

39. You will be given a written copy of the good behaviour order and it will be explained to you by the court officials and, I hope, by Mr Davies. In short, it means that for the next three years you need to keep out of trouble, keep in contact with Corrective Services and, if appropriate, do the Men's Cognitive Self-Change Program.

40. The most important thing you need to remember about the good behaviour order is that if you commit another offence during the next three years, you could find yourself back before this court to be re-sentenced for this current offence, as well as possibly losing the $1,000 security amount. You need to know in particular that, especially if you commit another offence of violence, you could easily find yourself serving some of the sentence I have just imposed in full-time custody.

41. So the two things you need to keep in mind, every moment, from here on are these: If you don't do your periodic detention properly you could find yourself in full-time custody in the AMC, and if you commit another offence, especially an offence of violence, you could find yourself in the AMC.

42. I think you should assume that you are now being given your last chance to stay out of gaol. The choice is really up to you, but I would recommend if you do want to keep out of gaol, and I really think it would be a good idea for you to keep out of gaol, that from here on you take seriously the need to get help with your depression, and any other mental health issues that are identified, the need to get help managing your emotions more generally, and the need to get help with alcohol and drug abuse.

43. Now, all of those things should be more available to you now that you're subject to a good behaviour order than they might have been after the last offence -you should take all of those things up with your supervising officer.

44. If you have got any further questions, you could ask the court officials, or certainly Mr Davies will be able to explain most things to you.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.

(Sentence Administration) Act 2005

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