CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - recklessly inflict grievous bodily harm - intensive corrections order assessment - good prospects of rehabilitation

Crimes Act 1900 (ACT) s 20

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

Hili v the Queen [2010] HCA 45; 242 CLR 520.

R v Amosa [2015] ACTSC 34

R v Chapman [2018] ACTSC 57

R v Deng [2017] ACTSC 338

R v Dunn [2017] ACTSC 227

R v EL [2016] ACTSC 241

R v Hidic [2017] ACTSC 307

R v Hill [2016] ACTSC 310

R v Kepaoa [2017] ACTSC 414

R v Kepaoa (No 2) [2018] ACTSC 24

R v McNeill [2018] ACTSC 125

R v Myles [2017] ACTSC 194

R v Pham [2015] HCA 39; 256 CLR 550

R v Sharma [2016] ACTSC 180

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

1. On 11 January 2018, the offender pleaded guilty to an offence of recklessly inflicting grievous bodily harm per section 20 of the Crimes Act 1900 (ACT).

2. The maximum penalty for recklessly inflicting grievous bodily harm is 13 years imprisonment.

3. The agreed facts are set out in the Statement of Facts, which forms part of Exhibit 1.

4. On Sunday 22 October 2017, at approximately 12:14 am, the victim was walking down City Walk in Canberra City on his own after exiting the 'Kite nightclub' with his partner, who was at a nearby ATM. CCTV footage shows the victim to be slightly unsteady on his feet.

5. At around this time, the victim was approached by the offender. The victim recognised the offender but did not know him by name. At the sentence hearing, the offender gave evidence that he had previously met the victim during an altercation two to three months earlier, where the offender had tried to stop a friend from fighting the victim. The offender also gave evidence that he had played rugby against the victim.

6. The victim and the offender exchanged words. The offender later told police that during the exchange, the victim told the offender that he wanted to fight him. The offender then said "let's go around the corner". The victim was unable to recall what words were exchanged.

7. CCTV footage then shows, at approximately 12:15 am, the two men fighting. The offender is seen striking the victim a number of times before kneeing him in the head whilst the victim is on the ground. The offender then struck the victim on the back of the head twice with a closed fist. The victim was then able to rise to his feet, at which point he removed his jacket and attempted to strike the offender. The offender picked up the victim by the legs and dropped him onto the pavement.

8. At this point, whilst the victim was crouched on the ground, the offender kicked the victim in the jaw, which knocked him unconscious and led him to fall onto his back. The offender then left the victim without rendering aid or calling for assistance. The CCTV footage shows the offender looking back over his shoulder towards the victim as he lay motionless on the ground.

9. The victim was immediately attended to by a number of persons in the area, and was transported by ambulance to The Calvary Hospital for treatment. The victim suffered a broken jaw, which required the insertion of a plate and several screws, and three chipped teeth. The victim provided a statement to police on 31 October 2017 and identified the offender to police as a person of interest.

10. The offender was arrested in relation to the offence on 2 November 2017. During the course of the record of interview, the offender made full admissions to the offence. The offender advised police that the fight "went too far", and that he was aware that the victim had been conveyed to hospital that morning, but that he was unaware of the extent of his injuries.

11. The offender was charged with the offence on 27 November 2017 in the ACT Magistrates Court.

12. It is well-established that the two key matters to be considered when assessing the objective seriousness of offences of this type are first, the culpability of the offender's conduct, and second, the relative seriousness of the grievous bodily harm sustained by the victim: R v Hidic [2017] ACTSC 307; R v Myles [2017] ACTSC 194; R v Sharma [2016] ACTSC 180; R v Amosa [2015] ACTSC 34. On this question, the prosecution referred to the nature of the decisive blow being a kick to the jaw of the victim whilst he was in a vulnerable position, and that following the kick he did not attempt to render aid to the victim and left the scene immediately. Mr Sabharwal for the offender conceded that it was not low-level violence and submitted that the objective seriousness was mid-range, and perhaps higher mid-range. The prosecution initially submitted that the objective seriousness was towards the mid to upper range and noted in the offender's favour the nature of the fight which was one where it was unlike many of the offences of this type which were often an unprovoked coward punch. The prosecution submitted based on the evidence of the offender, there being no evidence led to the contrary, that there had been some previous disagreement between the victim and the offender, and further, there was some discussion about the offender and the victim going to fight before the fight began. It was ultimately conceded by the prosecution that in light of that matter the objective seriousness was mid-range rather than upper-range. I accept on the evidence that this is a matter of mid-range objective seriousness. Regardless of the nomenclature or description of mid-range objective seriousness, this was a serious offence involving a kick to the jaw and serious injury, in particular where the victim suffered a broken jaw which required the insertion of a plate and several screws and three chipped teeth.

13. A Pre-Sentence Report (PSR) was prepared for the sentence hearing. The offender moved to Australia with his family when he was 10 years old from Laos. According to the PSR he reported a positive upbringing and enjoys a good relationship with his parents and his siblings. He has also been in a supportive de facto relationship for the past two years. He completed year 10 at school and discontinued his studies to help out at the family restaurant where he has worked for the last nine years and works there most days of the week. The offender commenced alcohol consumption when he was 18 and the assessment in the PSR indicates that he would benefit from alcohol-related counselling. It was also indicated that the offender had completed the "Think Ahead" program in March 2018 and that he has reduced his alcohol consumption as a result.

14. According to the PSR the offender did not dispute the statement of facts and he acknowledged the seriousness of his offending behaviour. The offender expressed victim empathy and his willingness to engage in the restorative justice process to accept responsibility for his offence and to repair the harm caused by him. The offender also undertook 11 sessions of anger management counselling and it has, according to the author of the report, given the offender the tools to better deal with anger. The PSR concluded that the offender is a 19-year-old man who enjoys the support of a positive and prosocial family and that he appeared to take full responsibility for the offence and did not offer any justification or statements that minimised his offending behaviour. The author of the PSR considered that the offender has a low risk of reoffending.

15. Additionally the offender gave evidence before me on 16 May 2018 and expressed his remorse. He also referred in his evidence to the anger management course he has undertaken and that it had been of great assistance. A number of references were tendered before me in relation to the remorse expressed by the offender, the anger management course, and that the offence was out of character. I take into account the references and testimonials that were tendered on behalf of the offender.

16. The offender indicated a willingness to participate in restorative justice. To that end, enquiries were made as to whether this was a realistic proposal. Eventually it was determined that this was not possible as the victim was not willing to participate in such a process. The report dated 8 May was tendered before me.

17. The offender has no convictions for offences of violence. He has only one matter on his criminal history for the offence of driving a motor vehicle with a prescribed concentration of alcohol of approximately 0.06. That matter having occurred shortly before, some 45 minutes, before the commission of the offence for which he is being sentenced today.

18. The offender pleaded guilty in the ACT Magistrates Court on 11 January 2018. The matter was then committed to the ACT Supreme Court for sentence. The plea of guilty clearly has significant utilitarian value and was consistent with his acceptance of responsibility. I accept that the plea of guilty in the circumstances of this case demonstrates remorse and indeed I accept that the offender has demonstrated remorse on a number of occasions in relation to this offence. The plea should be characterised as having been entered at the earliest reasonable opportunity having regard to all relevant matters. A discount of 25% is appropriate in this case.

19. The offender has not spent any time in custody referable to this offence.

20. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who inflicted grievous bodily harm on victims. The following cases from this jurisdiction provide a "yardstick" as referred to by the High Court in relation to this sentencing exercise: Hili at [53] - [54].

21. In R v Kepaoa [2017] ACTSC 414, Mossop J referred to a number of recent decisions, at [36]-[40] as follows:

1. In R v Dunn [2017] ACTSC 227 the offence involved a punch to the head causing permanent damage to the complainant's eye resulting in a substantial permanent impairment of vision that had long-term consequences for the victim and which occurred in the presence of police where the offender had a history of previous violent conduct. A sentence of 27 months was imposed which was suspended after 11 months.
2. In R v EL [2016] ACTSC 241 the offender had picked-up a wooden fence paling and hit the complainant which resulted in extremely severe life-threatening injuries to his head. The offender had been a child soldier in Sudan and had an extremely troubled childhood. He had previous convictions for offences of violence. The offender was sentenced to imprisonment for two and a half years reduced from three years on account of the plea of guilty. It was to be served by an Intensive Corrections Order.
3. In R v Hidic [2017] ACTSC 307, the offender had punched a player upon an opposing futsal team in the head. The victim suffered a fractured eye socket as well as lacerations requiring stitches. The offender was a young man who was otherwise of good character. Having served two months when bail-refused he received a sentence of two years and seven months to be served by way of an Intensive Corrections Order as well as 300 hours of community service.
4. R v Sharma [2016] ACTSC 180 involved a one-punch attack by a drunk man who was 20 at the time of the sentence. Elkaim J at [34] and [35] emphasised the need for general deterrence for this kind of attack. The offender was sentenced to 27 months' imprisonment suspended after nine months.
5. In R v Myles [2017] ACTSC 194, the offender had committed another one-punch attack whilst drunk which led to a broken jaw. He was given a sentence of 22 months which was to be served by Intensive Corrections Order as well as a requirement that he perform 249 hours of community service within 12 months.

22. The following additional cases should also be noted at this juncture.

23. In R v Deng [2017] ACTSC 338 the offender pleaded guilty to the offence of recklessly inflicting grievous bodily harm. The offender struck the victim with a closed fist. The victim fell to the ground striking the right side of his face on a solid metal table, suffering serious injuries as a result of the application of blunt force to his lower jaw which required surgical procedures. The offender had a history of alcohol and drug abuse. The offender was sentenced to 12 months imprisonment, to be served by way of an Intensive Corrections Order.

24. In R v Kepaoa [2017] ACTSC 414, the offender pleaded guilty to one count of recklessly inflicting grievous bodily harm, having punched the primary victim in the face three times. The victim did not retaliate and was admitted to hospital where he required extensive treatment for a broken jaw and related fractures and complications. The offender had on the same occasion committed an offence of common assault against a woman associated with the primary victim, by pushing her aggressively from behind. In R v Kepaoa (No 2) [2018] ACTSC 24, the offender was sentenced to 22 months imprisonment, served by way of Intensive Corrections Order, as well as 249 hours of community service, in addition to a Good Behaviour Order for a period of 12 months for the common assault offence.

25. In R v McNeill [2018] ACTSC 125, the offender pleaded guilty to a charge of common assault, and a charge of recklessly inflicting grievous bodily harm. The offender punched the first victim in the face, then threw a punch at the victim which knocked the second victim unconscious, before immediately leaving the scene. The second victim required emergency surgery for a broken jaw. The offender was sentenced to 30 months imprisonment for the offence of recklessly inflict grievous bodily harm, to be served concurrently with 6 months for the offence of common assault, with the whole sentence to be served by way Intensive Corrections Order.

26. In R v Chapman [2018] ACTSC 57, the offender pleaded guilty to a charge of recklessly inflicting grievous bodily harm in relation to an unprovoked strike to a victim which fractured the victim's jaw, at a nightclub. The offender did have previous convictions for violent offences. The offender was sentenced to 15 months imprisonment, fully suspended upon entering into a 30 month good behaviour order, with a requirement to perform 300 hours of community service within 30 months.

27. When this matter originally came before me on 16 May 2018 I determined that I should give serious consideration to the sentence being served by way of Intensive Corrections Order (ICO). To that end I referred the offender for assessment.

28. The ICO assessment report dated 31 July 2018 concludes with a recommendation that the offender has been assessed as suitable for an ICO and has signed an undertaking to comply with all of the obligations of an ICO.

29. The report is a detailed assessment of the offender's suitability for an ICO. The assessment involved seven interviews with the offender, an interview with the offender's sibling, an interview with the offender's father, an interview with the offender's mother, and the perusal and scrutiny of a number of relevant and important documents. The report indicates that the offender was engaged during all appointments and displayed a willingness to comply with an ICO. The report also refers to 5 urinalysis drug tests and one positive result in relation to the first test. There are no positive results thereafter. The report also refers to the fact that the offender is aware of the requirement to be drug-free throughout the ICO and the offender made reference to the need for him to be aware of the illicit substance use of his friends in relation to this important requirement. The report also refers to the offender's acknowledgement of the seriousness of the offence and taking full responsibility for his actions, and that he displayed victim empathy and awareness acknowledging the physical harm caused to the victim of the offence and how this may have impacted the victim's life. The report also stated that the offender attended all scheduled appointments for the preparation of the report, and demonstrated a willingness to comply with an ICO if so sentenced.

30. The prosecution submitted that a period of full-time imprisonment is appropriate. As in R v McNeill [2018] ACTSC 125, there is a real risk in this case that full-time imprisonment would add to the tragedy that has seen the victim seriously injured. The youth of the offender, his plea of guilty, his remorse, and his prospects for rehabilitation point in a direction other than a term of imprisonment served by way of full time custody.

31. Relevantly, in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions:

The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

32. In sentencing the offender, the court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.

33. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. Rehabilitation is also an important consideration having regard to the offender's youth, remorse, and previous good character.

34. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of ICO, including community service work as a condition.

35. It must be recognised that the assault on the victim has had a significant impact upon him. Both the short and long-term consequences of being the victim of a violent assault must be acknowledged. It must also be recognised that no sentence that the court imposes will rectify the consequences of what has occurred to the victim in the commission of the offence by the offender.

36. Both parties accept that the offender must receive a sentence of imprisonment. The issue is the length of the sentence and whether it is essential that it be served by way of full-time imprisonment or whether it can be served by way of ICO.

37. As stated by Murrell CJ in R v Hill [2016] ACTSC 310 (Hill) where a person has very good prospects of rehabilitation, the Court, by supporting those prospects in the sentence imposed , thereby also addresses likely future harm to the community and protection of the community. It was also emphasised in Hill that sentencing must always deliver individualised justice. There will be exceptions to the necessity for full-time custody. In coming to a conclusion, by way of instinctive synthesis, I have taken into account all the matters discussed above including the objective seriousness of the offence, the youth of the offender, his plea of guilty at an early stage, his remorse as expressed in his evidence before me, the ICO report, and the good prospects for rehabilitation of the offender. In this context, it should be noted that the prosecution conceded that the offender is "a good vehicle for rehabilitation". Additionally, it should be noted that whether prospects for rehabilitation are good as opposed to very good is not a relevant distinction for these purposes.

38. In my view the recommendation in the ICO assessment report should be taken up. An ICO ought to be imposed. It must be remembered that the imposition of an ICO is not a lenient sentence. Its content will require strict adherence and if this is not followed could result in a period of full-time custody. The appropriate sentence for the offence of recklessly inflicting grievous bodily harm is 32 months imprisonment which I reduce by 25% because of the plea of guilty. Additionally, in light of the seriousness of the offence, it is appropriate that there be a condition relating to the undertaking of Community Service. Further, in light of the need for ongoing rehabilitation, a condition relating to rehabilitation programs is also appropriate.

(a) In respect of the offence of recklessly inflict grievous bodily harm (CC17/12026), the offender is sentenced to 24 months imprisonment commencing on 15 August 2018 and ending on 14 August 2020.

(b) Pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT), the offender is to serve his sentence by way of Intensive Corrections Order. I impose the core conditions. I impose the following additional conditions:

• (i) That the offender perform 250 hours of community service within 24 months; and
• (ii) That the offender attend any programs or counselling that he is directed to by the Director-General including in relation to alcohol and drug use.

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