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Objective seriousness

12. The objective seriousness of assault occasioning actual bodily harm is informed by the conduct of the offender including the degree of violence used or the ferocity of the attack, the circumstances surrounding the offending and the nature of the injury caused by the offender. Ordinarily but not necessarily the most significant factor is the nature of the injury: see Waterfall v R [2019] NSWCCA 281, [33].

13. The offender’s conduct does not seem to have been premeditated. The pulling of the complainant’s hair seems to have been an opportunistic response to the victim refusing the enter the shower with him. The bite to her breast occurred during sexual intercourse and I infer was performed spontaneously for sexual gratification with indifference as to whether or not the act would cause the victim harm.

14. The circumstances of the offending were such that the victim was in a vulnerable position. As has been frequently observed, sex workers are vulnerable to offences including assault because their work necessitates that they repose some trust in their clients by being in a space alone with them. This trust is easily abused.

15. Although the Victim Impact Statement (VIS) referred to an outline of the offender’s mouth remaining visible on her breast, this is not referred to in the agreed statement of facts. I do not consider that, as an aggravating factor, the Crown has established any kind of permanent or enduring injury or mark beyond reasonable doubt. Nor did the injuries require surgical intervention or any kind of ongoing treatment. They were, however, injuries to a sensitive and vulnerable area. The injuries are at the lower range of injuries contemplated by the concept of assault occasioning actual bodily harm.

16. The victim describes various ongoing effects resulting from the offending in her VIS. She has been unable to work following the incident. She cannot tolerate being touched by family and friends and feels as though she is hypervigilant. It has also affected her relationship with her husband and children. She is less comfortable being intimate with her husband and is less playful with her children. She also refers to ongoing counselling for post-traumatic stress disorder and other “trauma responses”.

17. Counsel for the offender submitted that the emotional impact described in the VIS was not solely referable to the conduct constituting the offence before the Court. He noted that much more serious charges, including several charges of sexual intercourse without consent, were laid against the offender but were later discontinued. Probably, therefore (the argument ran), in her own mind the victim considers that she has suffered much more than the consequences of having her hair pulled and a bite on her breast. It was thus submitted that the VIS was likely to include impacts arising from matters other than the relevant offending and therefore should be afforded limited weight.

18. Although Part 4.3 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) requires the Court to consider any VIS given to the Court in relation to the offence, the weight to be attributed to the VIS is a matter for the Court. Because a VIS is not sworn or tested by cross-examination, assertions contained therein may well not be a sufficient basis for finding facts which the Crown must prove beyond reasonable doubt. The authorities suggest that particular caution must be shown where the VIS contains lay opinion about a psychiatric condition, diagnosis and prognosis or discloses harm that goes well beyond that which could be expected from the offence and the VIS is the only evidence of that harm: see, eg, R v BI (No 4) [2017] ACTSC 71, [79].

19. The VIS was prepared after the Agreed Statement of Facts was settled and thus after the more serious charges had been withdrawn. The Crown informed the Court, and I accept, that the victim was instructed that her statement was only to concern the assault. It is clear from the VIS that the victim has followed that instruction as best she can. The statement refers to several impacts arising from the specifics of the assault. For example, it discloses that the victim “does not like [her] hair touched” and “found it difficult to have a shower because of the sound of water”. There is nothing contained in the statement that is clearly unrelated to the assault.

20. However, in the absence of any other evidence, I cannot be satisfied beyond reasonable doubt that the offending has caused the victim to suffer from post-traumatic stress disorder (PTSD) or any other diagnosed psychological condition. Further, in so far as the VIS refers to psychological after-effects such as hypervigilance, loss of confidence and PTSD, it is impossible to know to what extent these arise from the assault per se as distinct from other things that happened between the offender and the victim.

21. I consider that the authorities establish that in circumstances such as these I am required to treat the VIS with caution, and I will do so. Even so, I do accept that the offending caused the victim emotional harm. This includes that she does not like her hair being touched and found it difficult to shower following the incident. I also accept that the offending has made some contribution to her increased level of vigilance and difficulty in trusting others, and that these factors have had a negative effect on her relationship with her husband and children.

22. In light of the above, I assess the objective seriousness of the offending as falling in the low range, but because of the circumstances in which the assault occurred, towards the higher end of that range.

Subjective circumstances

23. The parties did not request a pre-sentence report. The subjective circumstances below are my findings that follow from their respective submissions and the report of Sam Borenstein (Clinical Psychologist) tendered on behalf of the offender.

24. The offender is 41 years old and is resident in NSW.

25. He was born in Ireland and is the youngest of seven children. He did not disclose any history of trauma, abuse or domestic violence to Mr Borenstein, but recounted that his father was “an angry man” who he and his siblings “had to tip toe around”.

26. The offender left the family home at the age of 18 to live in shared accommodation.

27. His first relationship ended on good terms after two years. It was followed by a short relationship that resulted in an unplanned pregnancy and the birth of the offender’s son, who is now aged 15. The offender maintains regular telephone contact with his son, as well as with his own parents.

28. The offender worked as a bartender for around four years. He then left Ireland for Australia at the age of 30 to find further employment. In Australia he has worked in construction.

29. After coming to Australia, the offender entered into a relationship that resulted in two further children.

30. This relationship appears to have ended shortly prior to offending. While pregnant with their second child, the offender’s former partner moved to the Mid North Coast of New South Wales with their first child to be closer to her parents. The offender described suffering severe symptoms of depression as a result.

31. Although the offender has a circle of friends in Australia, and is now a permanent resident, he reports continuing to feel home sick and dates symptoms of depression to the time he came to Australia. He takes prescription antidepressant medication. Counsel for the offender eschewed any reliance upon the principles expressed in R v Verdins [2007] VSVA 102.

32. Two letters were tendered on the offender’s behalf. One is from the offender’s current partner, who describes the offender as a respectful person who is remorseful for his behaviour. The other is from a long time colleague and friend. He considered the offending very out of character and described the offender as a decent family man who is hardworking and honest.

33. I accept that the offender feels remorse for his offending and expressed genuine regret to Mr Borenstein. However, his description of the bite to the victim’s left breast as a “love bite” is either an attempt to minimise the severity of his offending, or an indication that he lacks insight into his conduct.

34. He has limited criminal antecedents. In 2018, he was sentenced to a conditional release order without conviction by the Newtown Local Court.

35. I accept that the offending represents an aberration and consider that his prospects for rehabilitation are strong.

Other sentencing considerations

Guilty plea

36. A guilty plea was entered in relation to the charge before the Court on 18 August 2022. By this stage the matter had been committed to this Court, a criminal case conference had occurred and the matter had been allocated trial dates that, for various reasons, had all been vacated. However, the plea followed negotiations that resulted in a significant number of serious charges against the complainant being discontinued, including charges of sexual intercourse without consent, attempted sexual intercourse without consent, act of indecency without consent and sexual assault in the second degree. These charges were discontinued in light of new material by disclosed the Crown and the parties appear to have reached resolution promptly following this disclosure. There is no indication before me that the Crown would have accepted a plea to the count before the Court in full satisfaction of the indictment before this stage. Pursuant to section 35 of the Sentencing Act, I will allow a discount of approximately 20 per cent on the sentence I would have otherwise imposed.

Time in custody

37. The offender spent a single night in custody solely referable to the present offending. I will backdate the sentence by a day to reflect this time in custody. Comparative cases

38. The Supreme Court rarely deals with an offence of assault occasioning actual bodily harm alone. The matter is before me because the offender was charged with more serious offences that did not proceed. As such, comparative cases are few and of little assistance.

39. R v Shearer [2020] ACTSC 100 was referred to by the Crown. There the offender bit the forearm of a police officer during a violent struggle with two officers that occurred when he attempted to escape from custody. The bite broke the skin and scarring was visible when a medical examination was conducted over a month later. For an offence of assault occasioning actual bodily harm, the sentencing Judge imposed a sentence of 10 months’ imprisonment (reduced from 12 months imprisonment in recognition of a guilty plea). This offending was part of an aggregate sentence of 11 years’ and six months imprisonment.

Consideration

40. Offences of violence against the person like this are relevantly commonplace and, as such, general deterrence is a particularly important sentencing purpose. This is particularly so given the vulnerability of sex workers to this type of offending. Other relevant sentencing purposes include specific deterrence, denunciation, accountability, recognition of the harm done to the victim, and promoting the rehabilitation of the offender.

41. I am satisfied that the offence is sufficiently serious that no penalty other than a sentence of imprisonment is appropriate. To impose only a good behaviour order would not be sufficient to achieve the objective of general deterrence.

42. However, I do not consider that the sentencing purposes require that this sentence by served by way of full-time detention. I will accordingly suspend the sentence from today.

Sentence

43. The order of the Court is: (1) The offender is convicted of the offence of assault occasioning actual bodily harm and sentenced to imprisonment for eight months (discounted from 10 months’ imprisonment in recognition of the guilty plea), from 26 October 2022 to 25 June 2023. (2) Pursuant to section 12 of the Crimes (Sentencing) Act 2005 (ACT), that sentence is suspended on 27 October 2022, on the offender giving an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months. (3) Order two will be subject only to the core conditions set out in section 86 of the Crimes (Sentence Administration) Act 2005 (ACT).

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Kennett Associate: Date: