R v Seretin [2016] ACTSC 45

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - particular offences - offences against the person - recklessly inflict grievous bodily harm - offender intoxicated - no criminal history - prior good character - early plea of guilty - good prospects of rehabilitation - general deterrence - denunciation - terms of imprisonment imposed.

Crimes Act 1900 (ACT) ss 19, 20

Crimes (Sentencing) Act 2005 (ACT) s 7

Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT)

1. Jacob Seretin, you have pleaded guilty to one charge of recklessly inflicting grievous bodily harm in contravention of s 20 of the Crimes Act 1900 (ACT) (the Crimes Act) which carries a maximum penalty of 13 years imprisonment. This offence occurred on 22 September 2014.

2. You were originally charged with an offence of intentionally inflicting grievous bodily harm, contrary to s 19 of the Crimes Act, when you first appeared in the Magistrates Court in December 2014.The charge of recklessly inflicting grievous bodily harm was not laid, together with another charge, until 12 February last year. On that date you entered pleas of not guilty to all charges and on 21 May last year you were committed to this Court for trial.

3. An indictment was filed on 29 June last year, charging you with the three offences upon which you were committed for trial. The principal charge was one of intentionally inflicting grievous bodily harm and the charge of recklessly inflicting grievous bodily harm was an alternative to that principal charge.

4. On 24 August last year, the matter was listed for trial to commence on

30 November 2015. On that date, that is 30 November 2015, you pleaded guilty to the charge now before me which was accepted by the Crown in full satisfaction of the indictment.

5. An Agreed Statement of Facts was tendered at your sentence hearing. You had been consuming alcohol on the evening of 22 September 2014 at a friend's house. You had consumed about half a bottle of rum, which was much more than you would usually consume and you then passed out at about 7.00 pm after having had an argument with your brother.

6. You awoke at about 9.30 pm and commenced walking home, a distance of approximately 1.8 kilometres. Your journey took you past the home of the victim, an 82-year-old man. You apparently became annoyed that the victim's garbage bins were on the footpath and you knocked them over. The victim heard you disturbing his bins and came outside to investigate. He remonstrated with you and formed the view that you were either drunk or affected by some other substance. You remained standing in front of his house. As a result of this behaviour the victim returned to his house and retrieved a camera and a small pick axe handle. It was his intention to take a picture of you to provide to the police. He carried the small pick axe handle in order to protect himself.

7. When the victim returned to the front of his house you were looking in the bushes in front of the house next door. You were saying, "Where's my bike? What have you done with my bike?" The victim told you that he was going to take your photograph and provide it to the police and you started to run away.

8. You then turned and without warning jumped on him, wrapping your arms and legs around him. He fell backward and hit his head on a rock rendering him unconscious. When he regained consciousness he heard you complaining that you were being hit with the pick axe handle. You were on top of him pinning him to the ground. You took the pick axe handle from the victim and threw it away at which time the victim lost consciousness again. When he regained consciousness for a second time you were still on top of him with your hands around his throat choking him. At that time the victim thought that he was going to die. At some point you must have desisted and left the scene. The victim then managed to stand up and walk to his residence before obtaining assistance.

9. An ambulance was called as were police. The victim was observed to have a large amount of blood on his face and through his hair. His right eye was swollen shut and there was a laceration above his right eye. There was also a laceration on the left side of his head and an apparent tear in the middle of his left ear. He was taken to hospital by ambulance. He had sustained life threatening head injuries including fractures of facial bones in his skull, bleeding within the brain and bruising of the brain.

10. Your wallet was found at the scene. At about 2.10 am on 23 September 2014, police attended your home which was approximately 690 metres from the victim's home. You were still wearing the same clothes that you had been wearing during your attack on the victim and your pants had a tear on the leg just below the knee and what appeared to be blood stains on them.

11. You were taken to the police station and told police that you had been hit with an axe handle and that you took it off the person who hit you and that you ran home. You then said, "Don't even know if I have a pushbike". You then told police that you had consumed half a bottle of very strong rum and a few bongs that evening and that you had started drinking at about 5.00 pm and finished at about 11.00 pm. You declined to answer questions about the incident.

12. Later forensic examination of the pants that you were wearing concluded that the stain on the pants was blood and that the major component of the DNA from this blood came from the victim.

13. An expert medical report stated that the victim had sustained serious and life threatening injuries including fractures of facial bones in his skull, bleeding on and around the brain on both sides and bruising on the brain on both sides. It was the opinion of the expert that the force required to cause such fractures was considerable and would have been inflicted using multiple applications of blunt force. There were at least two sites of direct impact with lacerations and fractures on both the left and right side of the face resulting in multiple injuries. The victim also sustained sight threatening injuries to his right eye. He required extensive medical treatment including surgery under general anaesthetic to repair facial fractures.

14. A Pre-Sentence Report was prepared for the sentence hearing. I note that you are now 22 years old although you were only 21 at the time of this offence. You were born in Canberra and your parents separated when you were five years old. You have two younger brothers. You reported good relationships with both your mother and your father. You do not have a partner or any children. You are currently living in shared accommodation. You left high school during year 10 and it appears that you had truancy and behavioural issues. You have reported having completed three years of a four-year chef apprenticeship. You also reported having a small group of prosocial friends with whom you associate on a regular basis.

15. You told the author of the Report that you had consumed half a bottle of rum on the night of this offence which was unusual for you. There is no suggestion that you have any issue relating to alcohol consumption which needs to be addressed. Your father told the author of the Report that since this offence you have refused to consume alcohol at all. You told the author of the Report that you smoked one or two grams of cannabis a week. You are apparently in good physical and mental health.

16. You told the author of the Report that you agreed with the Statement of Facts but you maintained your view that the victim's actions precipitated the incident. You said that your decision making was impaired due to your level of intoxication. You were assessed as suitable for community service work and also for periodic detention.

17. Victim impact statements were tendered setting out the physical and psychological harm sustained by the victim as a consequence of this offence and the effect of the consequences of the attack upon the victim's family. It is clear that your actions have had a devastating effect upon the victim and inevitably have impacted upon his family.

18. A Report was provided by Dr Mike Barry, a clinical psychologist. He assessed you on 7 January this year and had access to the Statement of Facts as well as other relevant material. He concluded that there was no evidence of mental disorder, abnormality or impairment of your mental functioning. Dr Barry thought that you may benefit from brief counselling interventions aimed at assisting you to discontinue your use of cannabis and to reinforce low risk drinking behaviours. You might also benefit from brief treatment using Cognitive Behavioural Therapy to assist in reducing reported symptoms of impulsivity and difficulties sustaining attention. Dr Barry believed that you posed a low risk of reoffending.

19. In providing your recollection of events surrounding this offence to Dr Barry you maintained that you had been attacked by the victim using the axe handle. You expressed remorse for your offending but maintained that the victim had struck you first. Dr Barry expressed the opinion that based on your reported level of alcohol consumption it was possible that the alcohol you consumed may have had a disinhibiting effect and impacted on your ability to exercise appropriate judgment, to make calm and rational choices, and your intention to commit the offence.

20. A number of testimonials were received at the sentence hearing. They speak of this offence as being out of character and of you showing remorse and sorrow for the victim and his family. Your mother provided a letter which referred to you being exposed to domestic violence in your childhood and also being exposed to your father drinking heavily. You were apparently diagnosed with attention deficit hyperactivity disorder as a child but your father would not allow you to take the prescribed medication. After the breakdown of your parents' marriage you helped to assist your mother and your younger brothers with meals and daily tasks. As you grew you developed a passion for cooking.

21. Your grandparents also provided a letter saying that this conduct was out of character and that you have expressed concern for the victim. They also note that you claim that you were acting in self-defence.

22. I take into account that you have no previous convictions. As I have said, you are currently 22 years old. You are in employment, have stable accommodation and supportive family and other relationships. All of these are positive factors, which indicate good prospects for rehabilitation. Your comparative youth also speaks of the need for any sentence which I impose to contain a strong rehabilitative component.

23. I was told by your counsel that the version of events which you gave to others, including your grandparents, Dr Barry and the author of the Pre-Sentence Report, is your recollection of the events but you now accept that your recollection is faulty. This is probably due to your intoxication on the evening in question. You now accept that events occurred as described by the victim and as set out in the Statement of Facts.

24. I accept that you are remorseful for your actions. I accept that your plea of guilty demonstrates a degree or remorse and also has a significant utilitarian value. It was, however, a late plea but I will nevertheless reduce the otherwise appropriate sentence by approximately 10 per cent in order to reflect your plea.

25. Aspects of your behaviour during the events on 22 September 2014 and into the morning of 23 September are strange and bordering on the bizarre. Searching for a bicycle in the bushes in front of the victim's neighbour's house is inexplicable as there was no suggestion that you had ridden a bicycle to the house where you were consuming alcohol that evening. In any event, that house was over a kilometre away.

26. Similarly, it is clear from the material before me that your conduct in attacking the victim is completely out of character. Whilst it is possible that your behaviour may simply be a consequence of you being highly intoxicated it does also suggest the possibility of you being under the influence of some other substance. I note that you have accepted the possibility that you had consumed cannabis before this incident and whether that may have played a part in your behaviour I cannot say.

27. The victim of this offence was an elderly man in his early 80s. As such, he is a particularly vulnerable member of the community. It was suggested that you were not aware that the victim was such an elderly man but if so, this could only be because of your level of intoxication. The lighting in the area of the assault was described as good and at various times during this incident you came within very close proximity to the victim. It is clear, however, that your memory of events on the evening of 22 September 2014 is not reliable.

28. Objectively this is a very serious offence. The maximum penalty for this offence is 13 years imprisonment, which demonstrates how seriously the legislature considers this type of offending. The present offence is a serious example of this type of offending. The harm which was inflicted on the victim was life threatening and the consequences of the injuries which you inflicted will be with the victim and his family for the rest of their lives.

29. The fact that you were under the influence of alcohol and possibly cannabis at the time that you committed this offence does not significantly mitigate your culpability. Your counsel has correctly accepted that your attack upon the victim can be described as cowardly, unprovoked and vicious. I do, however, take into account the fact that there was no premeditation or planning involved in this offence and that the infliction of harm on the victim was reckless rather than intentional.

30. Your counsel also, quite appropriately, accepted that a term of imprisonment is the appropriate sentence with respect to this offence, however, he suggested that that may be able to be served by some way or some method other than full time imprisonment. He suggested that it may be appropriate to make a periodic detention order. That sentencing option is no longer available in the Australian Capital Territory since the commencement of the Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) on 2 March this year. In any event, I do not consider that periodic detention or its replacement, an Intensive Corrections Order, would be adequate to meet the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT).

31. In sentencing for this offence it is important that I impose a sentence which will adequately punish you in a way that is just and appropriate and that deters other people from engaging in violence. It is also important that the sentence which I impose is such as to denounce your conduct and to recognise the harm done to the victim and the community. Whilst rehabilitation remains a significant sentencing consideration, when all of the considerations are taken into account and balanced, I have concluded that nothing less than an immediate term of imprisonment is appropriate with respect to this offence.

32. The medical evidence establishes that there were at least two sites of the infliction of physical force on the victim and that the degree of force required to inflict the injuries was considerable. Your level of moral culpability is high. As I have already noted, the injuries suffered by the victim were extensive and life threatening. Objectively this offence falls within the upper range of offences of this type. You are entitled to a degree of leniency based upon your prior good character but your previous good character cannot justify a non-custodial sentence.

33. Sentencing in this case involves the difficult but by no means unique exercise of balancing your previous good character and good prospects for rehabilitation against the fact that you have committed a very serious criminal offence, which calls for punishment, denunciation and a sentence designed to deter others from committing offences of violence. As I have said, in my opinion, the result of striking that balance requires you to serve at least some time by way of actual imprisonment.

34. In my opinion the appropriate starting point, leaving aside the question of your plea of guilty, is a term of imprisonment of four years and six months. I will reduce this by six months in order to reflect your plea of guilty. I will reflect your good prospects for rehabilitation in a shorter than usual non-parole period. I record a conviction and you are sentenced to four years imprisonment commencing today, 4 March 2016 and expiring on 3 March 2020. I set a non-parole period of 20 months commencing today, 4 March 2016 and expiring on 3 November 2017.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.