CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - recklessly inflict grievous bodily harm.

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10

ACT Office of the Director of Public Prosecutions (Crown)

1. On 31 August 2017, the offender entered a plea of guilty in the Magistrates Court to an offence of recklessly inflict grievous bodily harm. The offence is contrary to s 20 of the Crimes Act 1900 (ACT) and carries a maximum penalty of 13 years imprisonment.

2. The facts behind the offence are as follows. On 29 April 2017, the offender was at the Cube nightclub. He punched a Mr Nagali twice in the face. This caused three of Mr Nagali's teeth to be bent inwards. Another tooth was knocked out. The victim also sustained an undisplaced right nasal bone fracture as a result of the assault. The injuries are graphically depicted in the photographs forming part of exhibit A and continued to affect the victim for at least a month.

3. The history behind the assault is set out in the statement of facts. It arose out of a melee which had its origins in a misguided attempt to protect the honour of a woman on the dance floor. An unidentified male appears to have played a significant part in stirring up trouble. Mr Nagali also played a role in the events. On one reading of the statement of facts, and as confirmed by the CCTV footage, the assault was committed by the offender in an attempt to prevent Mr Nagali from attacking his friend.

4. The offender's early plea of guilty has utilitarian value, which will be reflected in a discount of the sentence imposed.

5. The offender has no prior convictions. He was born in 1993 and is one of three children. He has lived in many different parts of Australia because his parents moved around due to their occupations.

6. After completing year 12, the offender obtained a Certificate IV in disability care. He has been employed primarily in this area and apparently enjoys his role as a support worker. He now works supporting autistic persons. He has a glowing reference from his employer (Exhibit 1).

7. The offender is a keen sportsperson, although he has not been participating recently due to injury. Unfortunately, he obviously drinks too much alcohol. It seems that he often spent up to $500 at a drinking session. The offender has some history of drug use, which also needs to be addressed. He has some significant mental health issues, which have led to self-harming behaviour. He is currently taking medication for schizophrenia.

8. Sentencing involves consideration of a number of matters. It is necessary to consider the principles and purposes of sentencing, as set out in sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is also important because it tells the court that an offender should not be imprisoned unless there is no other alternative.

9. The injuries suffered by the victim were significant. I do not, however, regard this as akin to a 'one punch attack', in which a person is knocked to the ground and suffers a significant jaw or head injury. I accept that there are similarities to those type of cases, but I think that there are enough points of distinction in the present case to take a different approach. In addition, the offender has the benefit of a significant degree of leniency arising from his prior good character. I think this is a case of a person impulsively becoming involved in a fight, which he should have stayed out of.

10. I am also very mindful of the offender's mental health issues. In addition, it is relevant that he is currently in stable employment of a type which is beneficial to the community. He impressed me as a young man who is usually a very decent and caring person. His remorse is obvious, both from his oral evidence and the references.

11. The victim, and society as a whole, are however entitled to see that the offender is punished for his criminal behaviour. I think that the best way to achieve this, incorporating a discount of 25%, is as follows:

(a) In respect of count one, recklessly inflict grievous bodily harm (CC 17/6059), the offender is sentenced to 6 months imprisonment commencing on 14 December 2017 and ending on 13 June 2018.

(b) The term of imprisonment is suspended with immediate effect, on condition that the offender enter into a Good Behaviour Order for a period of 18 months on condition that the offender report to ACT Corrective Services within 72 hours and accept its supervision and all reasonable directions of the Director-General in respect of counselling, programs or treatments as directed by the supervising officer.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.