R v Sharma [2016] ACTSC 180

Crimes Act 1900 (ACT), s 20,

Crimes (Sentencing) Act 2005 (ACT), ss 6, 7, 10, 33(1)(za)

R v Amosa [2015] ACTSC 34

R v Loveridge [2014] NSWCCA 20

R v Mills [1998] 4 VR 235

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

R v Pumpa [2014] ACTSC 223

1. On 26 May 2016 the offender pleaded guilty to the charge of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT).

2. The maximum penalty for this offence is imprisonment of 13 years.

4. The plea of guilty was taken following the committal of the offender to the Supreme Court for trial and when the matter was listed before the Registrar for directions.

6. The offence occurred during what may be described as New Year's Eve celebrations. In the early hours of 1 January 2016, the offender was standing outside a convenience store in the suburb of Braddon. He was with a Mr Seears and a Mr Gregory.

7. The offender was well intoxicated. A verbal argument had developed involving the three men. Mr Gregory was standing still with his hands in his pockets.

8. The offender, no doubt fuelled with the bravado generated by his alcohol consumption, threw a punch with his right fist which struck the right side of Mr Gregory's jaw. Mr Gregory did not give the offender permission to strike him.

9. When the punch was thrown, Mr Gregory was not looking at the offender. Mr Gregory was knocked unconscious. He fell to the ground where he hit the left side of his head.

10. Following Mr Gregory falling to the ground, the offender and Mr Seears walked away. They did not render any assistance to Mr Gregory.

11. The incident was recorded on CCTV. The footage graphically depicts the nature of the attack.

12. The CCTV footage was distributed by the police in the course of their efforts to locate the offender. The distribution was widespread and evidently reported to or seen by the offender.

13. At about 2:25 PM, on the same day as the CCTV posting, the offender attended the city police station where he identified himself as the person carrying out the assault in the CCTV footage.

14. As a result of the blow to his face, Mr Gregory suffered a fracture of his lower jaw bone on the right side. He required surgery which took place on 2 January 2016. The procedure required the insertion of a titanium plate into the jawbone. The plate was fixed with four screws. Mr Gregory was in the Canberra Hospital for four days. He endured severe pain. His jaw was wired shut for two weeks.

15. In Exhibit D, the Adult Victim Impact Statement, Mr Gregory describes some of the psychological effects of the injury. He has been depressed and his relationship with his girlfriend has been affected. His social life has become limited and he suffers from bouts of anger. He has a perception that there might be repercussions related to the offender. There is no reason to suggest this will be so but nevertheless it is a concern to Mr Gregory.

16. Mr Gregory has been seeing a counsellor although the interval between sessions has reduced recently. Quite clearly the psychological impact has been marked and may well continue for some time. In addition, Mr Gregory lost one of his two casual jobs as a result of the incident and he suffered a degree of economic loss.

17. There are two elements that need to be considered at this stage. Firstly there is the punch itself and secondly there are its effects.

18. A single punch is, of course, less severe than a sustained attack involving a series of punches. However a single punch, especially when made to a victim's head so that he is rendered unconscious and falls to the ground, has the potential to result in the most severe of consequences. This is especially so when the incident takes place on a city footpath where there is a strong likelihood of the victim striking his head on a very hard surface. I do accept that the injury to Mr Gregory's jaw was caused by the initial striking rather than the fall to the ground.

19. In addition, where the striking has followed the consumption of a large amount of alcohol, there is an element of reckless behaviour involving a disregard for the possible effects of the consumption of the alcohol.

20. The viewing of the CCTV footage reveals the callousness of the attack. Although it was not premeditated there is a clear indication of some forethought as the offender adopted a stance preparatory to the striking. It is also evident that Mr Gregory was looking away from the offender and following the attack the offender and his friend simply walked away without rendering any assistance.

21. As detailed above, the effect on Mr Gregory has been significant. I agree with the Crown submission that the objective seriousness can be described as moderate.

22. The offender was born in October 1995. He is now, as he was at the time of the offence, aged 20. He is a young man. His age is a factor to be taken into account, as described in R v Mills [1998] 4 VR 235.

23. The offender obviously comes from a devoted and caring family. He is single and resides away from home in an apartment. According to the Pre-Sentence Report, he takes pride in his accommodation. The offender currently works in the hospitality industry as a casual counter staff member. His employer has provided him a reference stating, amongst other things, that he is confident "he is taking steps to move forward in a positive direction and that he has the self discipline to do so".

24. The offender did very well at school. He then attended ANU where he obtained very good results in 2015. He was enrolled in an actuarial studies degree. He gave up this course following this offence.

25. The offender has been involved in charitable activities. He has been a regular attendee at church services and he has apparently made a significant effort to drink only minimal amounts of alcohol.

26. The references provided all express surprise at the offender's involvement in the incident. They say it was uncharacteristic and they believe he has learnt a very fundamental lesson about behaviour in society.

27. The offender wrote a letter of apology to Mr Gregory expressing sorrow for what he had done and hoping that Mr Gregory will one day forgive him. The letter was written in June 2016, after the offender entered his plea of guilty. The letter is in Exhibit 1. I think true contrition would have seen the letter written somewhat earlier.

28. Mr Davies submitted that I should take into account that the offender has, and will in the future, suffer an extra-curial punishment in the form of vilification through social media. I was taken to the social posts that are contained in Exhibit 2. I accept that I can, and I will, take into account the offender's treatment in the social media however I do not think it amounts to the exceptional circumstances required to classify it as an extra-curial punishment.

29. The offender is entitled to the benefit of his plea of guilty and it will be taken into account, as will his previous good character. The court faces a difficult task in sentencing a young offender with an unblemished background who has committed a single act of immense stupidity.

30. It is also significant that the offender has already taken steps, by way of the reduction of his alcohol consumption, to rehabilitate himself. He has the support of his family and they will no doubt assist in his rehabilitation. The court must be very concerned that it does not impede the prospects of rehabilitation and the allowing of the offender to become a contributing member of society.

31. In addition, as a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6 and the purposes of sentencing as stated in s 7. I am also particularly mindful of s 10 which tells the court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate.

32. In relation to s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT), I have had particular regard to the following authorities: R v Neish [2013] ACTSC, Refshauge J, 24 May 2013, R v Pumpa [2014] ACTSC 223 and R v Amosa [2015 ACTSC 34]. Each of these authorities has comparable aspects but also have many points of distinction arising from the nature of the offence or perhaps the criminal record of the respective offenders. There are authorities from NSW (like R v Loveridge [2014] NSWCCA20) that are very useful as indicators of principle, but not of type and length of sentence because of the particular sentencing laws that exist in that State.

33. There is of course, in addition to the interests of the offender, the very significant considerations which must reflect society's abhorrence for attacks of this kind. These attacks are often called "coward punches". This is an emotive term but one which is a natural product of events as seen on the CCTV footage.

34. The courts must emphasise to young people that the consumption of large amounts of alcohol, or drugs, that places them in situations where they act with reckless indifference towards other persons and cause very severe injuries is entirely inappropriate. As has tragically been seen around Australia, the tragedy can include the death of the victim.

35. Sentencing in circumstances of this nature must involve a very high degree of deterrence.

36. In my view a sentence of imprisonment is inevitable. I do not think an Intensive Corrections Order is appropriate. That is an order "that is intended as a sentence of 'last resort' for offenders before full-time imprisonment".

37. In my view this offence requires a period of full-time imprisonment. At the same time the court must recognise the subjective factors stated above and especially the need to ensure the rehabilitation prospects of the offender. For this reason, I intend the offender to serve a period of full-time imprisonment followed by the suspension of his sentence.

38. I think the head sentence should be for 3 years which I will treat as 36 months. This should be reduced by 25% to 27 months to reflect the guilty plea. The sentence will be then be suspended after a period of 9 months.

(a) I confirm the conviction of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT).

(b) I sentence you to a period of imprisonment of 27 months to commence on 22 July 2016 and end on 21 October 2018.

(c) I suspend the sentence from 22 April 2017 until the end of the balance of the term, on 21 October 2018.

(d) I require you to sign an undertaking to comply with the Offenders Good Behaviour Obligations under the Crimes (Sentencing) Act 2005 (ACT) for the period during which the sentence is suspended.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim