SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2015] ACTSC 406

23 October 2015, 26 November 2015, 10 December 2015

1. The offender is convicted.
2. The offender is sentenced to three years imprisonment, backdated to 6 September 2015.
3. A non-parole period of 18 months is set, running from 6 September 2015.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence -offender to be sentenced for recklessly inflicting grievous bodily harm on brother after argument - plea of guilty after negotiations - failure to engage with authorities to enable preparation of pre-sentence report and CADAS report - serious injuries sustained by victim - offence not far below mid-range seriousness - significant criminal history including several offences of violence including one committed since the current offence - no explanation for violent behaviour in offender's background - drug and alcohol use not linked to current offence - need for general and specific deterrence - consideration of comparable cases - low non-parole period set to allow extended supervision in community.

Crimes Act 1900 (ACT), s 20

Carberry v The Queen [2013] ACTCA 20

R v Amosa [2015] ACTSC 34

R v David Christopher Laipato [2010] ACTSC, Nield AJ, 16 September 2010

R v Pumpa [2014] ACTSC 223

R v Steven Colin Webb [2003] ACTSC, Crispin J, 28 August 2003

Legal Aid ACT (Offender)

1. Luke Williams has pleaded guilty to one count of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT), which carries a maximum penalty including imprisonment for 13 years.

2. The incident giving rise to this charge took place on 7 March this year. At the end of a trip from Sydney involving Mr Williams, his then partner, and his twin brother Rick, there was an argument between the two brothers. Mr Williams, who was driving the vehicle, stopped it in Hackett and both men got out. Rick Williams ran away, and Mr Williams chased him, carrying a guitar which he had removed from the vehicle. When Mr Williams caught up with his brother, he brought the guitar down on the right side of his brother's head, rendering him unconscious.

3. Residents of nearby houses came out, and observed Rick Williams on the ground with blood coming from his head. As Rick Williams regained consciousness, Luke Williams was heard to tell his brother not to move because he would kill himself. Mr Williams also shouted for someone to call an ambulance.

4. Rick Williams was taken to hospital, where he was found to have a depressed skull fracture and a haematoma on his brain, as well as other fractures, lacerations, cuts and bruises, mainly on the right side of his head; one of the fractures extended from the right side of his skull to the back of his head. He underwent surgery that included a craniotomy to deal with the haematoma and a procedure to reattach fractures of his skull. Rick Williams spent three weeks in hospital and was then moved to a rehabilitation facility in Melbourne.

5. Mr Williams was arrested on the day of the offence and appeared in court on 9 March 2015. He spent 46 days in custody before being granted bail on 21 April 2015. On 23 October 2015, I remanded him in custody. Taking account of his previous time in custody in relation to this offence, the backdating date is agreed as 6 September 2015.

6. In November 2014, Mr Williams was sentenced in New South Wales for family violence offences, specifically, a contravention of an apprehended violence order and a stalking offence. It seems that a good behaviour order was made, and that the good behaviour order was breached by this offence. Any action on that good behaviour order would of course be for the NSW authorities.

7. On 9 June this year, on his seventh appearance in the Magistrates Court and after negotiations between the parties, Mr Williams pleaded guilty to the charge currently before this court.

8. As well as the Statement of Facts, the following material is in evidence before me:

(a) an x-ray of the victim's skull, and photographs of the guitar and of the victim in hospital;

(b) a letter from the hospital about the victim's rehabilitation, an application made by ACT Health for an Involuntary Detention Order in respect of the victim, Rick Williams, who was said to be mentally dysfunctional, in need of immediate treatment or care, but refusing that treatment, and also the order subsequently made by ACAT;

(c) Mr Williams' criminal history;

(d) a pre-sentence report dated 2 October 2015 prepared by NSW Corrective Services that records Mr Williams' failure to engage with that service to enable the preparation of a pre-sentence report that had been commissioned by the ACT authorities, presumably in the knowledge that Mr Williams had returned, or was likely to return, to NSW;

(e) a CADAS report dated 15 October 2015 prepared by ACT Government Health recording Mr Williams' failure to engage with that organisation to enable the preparation of a report;

(f) a short-form pre-sentence report dated 10 December 2015 provided by the Corrective Services Court Duty Officer after a brief discussion with Mr Williams in the cells on the morning of the last day of this hearing; and

(g) a standard CADAS report dated 8 December this year;

9. I note that after Mr Williams failed while on bail to engage with pre-sentence report authorities or CADAS in accordance with the original order, I remanded him in custody and made further orders for the relevant reports. Those orders were not passed on by the Registry to the relevant authorities, a fact which only came to light at the adjourned sentencing date. I adjourned the matter for a further two weeks and made yet further orders for preparation of the reports. As already indicated, CADAS provided a full report during that adjournment but Corrections was only able to produce the short-form report in that two weeks.

(a) a report provided to the Maitland Local Court in August 2014 about Mr Williams' successful completion of a program referred to as the MERIT program; and

(b) a letter dated 20 April 2015 from Aaron Simpson of the Newcastle Family Relationship Centre.

11. In considering the objective seriousness of this offence, I have had regard to the following matters.

12. First, this is by no means a minor example of the offence charged, especially noting that it was a family violence offence.

13. The matter of R v Amosa [2015] ACTSC 34 was cited by the prosecutor for the proposition (at [20]) that there are two aspects to the objective seriousness of offences of this kind, one being the offender's conduct and his moral culpability for that conduct, and the other being the nature of the harm suffered by the victim.

14. The offence does not appear to have been premeditated, except to the extent that Mr Williams took the time to get his guitar out of the car before chasing his brother. Mr Williams explained the offence to the CADAS report author as follows:

Mr Williams stated that at the time of the incident, he was not alcohol or drug affected, but his brother was alcohol affected. He explained that he had been on a road-trip with his brother, his ex-partner and another friend. He stated that his brother had brought a carton of 24 beers and consumed this on the drive from Newcastle to Canberra. When they arrived in Canberra his brother made a disparaging comment to his ex-partner and threatened her with violence. Mr Williams told his brother to get out of the vehicle. His brother then threw a punch at Mr Williams through the passenger side door. Mr Williams retaliated by striking him with his electric guitar which was in the back of the vehicle. He stated that this was impulsive and "over the top". He was remorseful for the incident and wished to say sorry to his brother, but had been unable to due to Court conditions.

15. Instead of either closing the window or driving off, Mr Williams chose to pursue his brother and to assault him. I do however note counsel's submission that the location of the injuries suffered by Rick Williams indicates that he was not assaulted from behind; on the other hand, I cannot determine whether he had turned around in response to something said or done by Mr Williams or had turned back to confront his brother.

16. Mr Williams appears to have tried to minimise his actions. His description to the CADAS report author omits the fact that he chased his brother before hitting him with the guitar. Furthermore, the prosecutor noted that Mr Williams had initially told police that his brother had hurt his head in a fall.

17. I note Mr Williams' report that his brother was affected by alcohol at the time of the offence, although he (Luke Williams) was not.

18. The prosecutor conceded that Mr Williams had been provoked by Rick Williams' threat to Mr Williams' partner, but noted that Rick Williams had then run away from Mr Williams (and his partner).

19. The offence is also aggravated by being committed while Mr Williams was already subject to a NSW good behaviour order made in connection with an earlier family violence offence, in that case against Mr Williams' then partner.

20. Mr Williams' actions in telling his brother not to move and asking onlookers to call an ambulance may be seen as some indication of regret and possibly remorse.

21. As to the victim's injuries, the evidence is clear that they were quite serious - in particular, the x-ray of his skull and the photographs of the many places his scalp had to be opened and stitched, presumably to allow treatment of the multiple skull fractures, are quite confronting. The letter from the Canberra Hospital about Rick Williams' need for time in rehabilitation facilities, and the application made by ACT Health for an extension of Rick Williams' involuntary detention for a total period of 10 days after his first two weeks in hospital, indicate that his injuries were not only immediately dramatic but may have had a significant effect on his mental functioning, although of course there is no evidence before me of Rick Williams' mental condition before he was assaulted.

22. This offence in my view is not far below mid-range seriousness.

23. I have also had regard in this sentencing to Mr Williams' subjective circumstances.

24. Mr Williams is 31. He has an extensive criminal history spread across NSW, Queensland, South Australia and Victoria, but in the ACT there is only one prior conviction, for offensive behaviour in a public place. In the various states, he has been dealt with for two common assaults in NSW, being in 2012, and in 2015 since the current offence; one assault causing harm in South Australia in 2007; and one unlawful assault and one intentionally cause injury in Victoria in 2008 and 2009. In 2014, he was fined in NSW for contravening an apprehended violence order, and stalking or intimidating, both in a domestic context. There was also a conviction in Victoria for criminal damage in 2009, and offences of resisting an officer in the execution of his duty and damaging property committed in NSW in 2013. As well, there have been several minor drug-related offences and a number of dishonesty offences, including several thefts. This is a significant criminal history and leaves little scope for leniency.

25. Fortunately, the CADAS report provided the detailed background information that Corrective Services was unable to provide, being the following:

Mr Williams stated that he was born in Victoria. Prior to remand he was living in Newcastle NSW. He was living with his ex-partner until approximately July 2015 when she took out an AVO against him. He stated that they are currently separated. They have a 14 month old daughter together who is currently in care. His partner also has a four year old boy to a previous partner who is also in care. He reported that prior to July 2015 he was his partner's carer and received a family carers pension. He stated that she has a genetic disorder and learning disability which reduces her capacity.

Mr Williams reported that his highest level of education was completing Year 12 of secondary school. He did six months of a bricklaying apprenticeship but did not continue this. He then spent ten years in marketing [which I am told involved door-to-door and call centre work] which he identified as his main business. He holds a white card and a forklift licence.

Mr Williams ... is the eldest of five children. He has a twin brother, a younger brother, and two half-sisters. His mother died when Mr Williams was about eight years old. He had little contact with his mother as his father had full custody of all the children. He said that they did not attend her funeral and knew little about her.

Mr Williams reported that he had a "good" childhood, and received support from his father, step-mother and Nana. He described his father as a hardworking self-employed family man who provided well for his family. He said he still receives emotional support from his father and step-mother who live in Victoria. He described being a good student and attended public and private schools.

[Mr Williams] denied experiencing any trauma, neglect or abuse as a child. He did describe some challenges in adolescence and that he was asked to move out of home by his father at the age of 18. He stated that in the past the death of his mother had been a source of conflict between he and his father. He reported some juvenile criminality.

Mr Williams stated that he was very satisfied with his physical health currently. He reported that he had no health issues and took no medication for any condition.

Mr Williams stated that at the age of 16 he consumed a large quantity of alcohol and hit his head on a gutter while performing tricks on a skate-board. As a result he was hospitalised and described being "put on life support", being kept for observation overnight. He report no after-effects. He also was involved in a motorbike accident at the age of 22 but suffered no fractures.

Mr Williams reported no history of mental illness. The Kessler-10 screen psychological was used scoring 20/50, indicating medium risk for anxiety or depressive disorder. It was suggested he seek assistance from a counsellor or GP, he stated he had asked to see a GP at the Alexander Maconochie Centre but this had not occurred. He reported low mood primarily due to his pending Court matters combined with concerns for his daughter and his twin-brother. He denied having any thoughts of self harm or suicide.

26. The CADAS report also notes moderate alcohol intake, ongoing cannabis use (although abstention for six to nine months in 2014 while involved with the NSW MERIT program), and minor use of tobacco.

27. The letter from Mr Simpson of the Newcastle Family Relationship Centre says that in October and November 2014, Mr Williams attended five sessions of an anger management program. The commission of the current offence suggests that the program was not entirely effective.

28. As for the report provided to the Maitland Local Court in August 2014, MERIT appears to be an acronym for Magistrates Early Referral Into Treatment, and thus provides little information about the nature of the program except that offenders are referred to it by magistrates. However, the content of the report suggests that the program is focused on drug and alcohol abuse and, as already noted, it seems to have helped Mr Williams cease cannabis use during the term of the program. It does suggest, as put by defence counsel, that Mr Williams has some capacity to benefit from rehabilitation programs. On the other hand, this is of little immediate relevance, since Mr Williams claims not to have been affected by alcohol or drugs when the current offence was committed.

29. The CADAS report indicates that Mr Williams signed up for a fathering program in the AMC, and hopes to resumes its SMART Recovery program and an anger management program when permitted to do so.

30. The CADAS report also noted that Mr Williams would benefit from CADAS supervision, including non-residential drug and alcohol counselling, and recorded Mr Williams' plan to stay in Canberra once he is released.

31. I understand that a bed would be available for Mr Williams at Samaritan House if he were released in the short term. However, it is not clear, as pointed out by the prosecutor, why Mr Williams would wish to stay in Canberra on release, given that he has no ties in Canberra and his baby daughter lives in NSW; his failure to engage with local authorities for the preparation of the pre-sentence and CADAS reports while he was on bail after his plea of guilty raises the general possibility that he struggles to comply with supervision requirements in the community, and the more specific possibility that his compliance with ACT orders might be compromised if he returns to NSW.

32. Mr Williams told the CADAS report author that his longer term goal was to obtain custody of his daughter who, as noted, is currently 14 months old. One can only assume that repeated violent offending would delay, if not prevent, the achievement of that goal.

33. This is an offence of a kind that requires general deterrence, and in some cases at least, general deterrence may be effective. I note defence counsel's comment that general deterrence in relation to the grievous bodily harm offence is particularly relevant in relation to "glassing" offences, but I consider that deterring violence within the family is at least as important as deterring alcohol-fuelled violence between strangers or acquaintances.

34. Mr Williams appears to be remorseful about this particular incident, but his record of violent offences suggests that personal deterrence remains relevant.

35. Mr Williams' plea of guilty did not come immediately but a couple of months after the incident, but he pleaded guilty to the current charge on the day it was laid (following the negotiations already mentioned) and before a brief of evidence had been prepared. He has also demonstrated remorse. He will receive a sentencing discount in the order of 25%.

36. Counsel referred me to several cases with aspects in common with the current matter.

37. In the matter of R v Steven Colin Webb [2003] ACTSC, Crispin J, 28 August 2003, Crispin J sentenced Mr Webb on a plea of guilty for the recklessly inflict grievous bodily harm offence to two years imprisonment, immediately suspended. As with Mr Williams' offence, Mr Webb's offence was an example of family violence, the victim being Mr Webb's father, who appears to have suffered serious injuries and, in Crispin J's words, a legacy of continuing physical problems. There had been an argument between the two men about how the victim had treated Mr Webb's mother, whom the victim had abandoned after a long marriage, subsequently forming a new relationship. Crispin J noted that he could not make any finding about who had started the fight. Mr Webb had a criminal record which included one violent offence eight years before the offence that was dealt with by Crispin J.

38. The case of R v David Christopher Laipato [2010] ACTSC, Nield AJ, 16 September 2010involved an assault by a 22-year-old on a 52-year-old man who had asked the offender to leave his home. It seems that the attack was in part provoked by a perceived racist remark by the victim, who suffered significant and long-lasting injuries. Mr Laipato had a substantial criminal history involving, among other things, five previous offences of violence. The sentence in that case began at four years, which was reduced to three years for the offender's plea of guilty, and was to be served partly concurrently with sentences for unrelated offences. A non-parole period of two years six months was set for a total sentence of three years ten months.

39. In Carberry v The Queen [2013] ACTCA 20, the Court of Appeal dismissed an appeal by an offender against a sentence of six years imprisonment, reduced from seven years for a plea of guilty, for an offence of recklessly inflicting grievous bodily harm. Mr Carberry's offence involved kicking the victim in the head several times as he lay on the ground calling for help, while a co-offender kicked his back and legs. The Court of Appeal decision does not indicate the nature of Mr Carberry's criminal history, although it was apparent that he did have one.

40. I note that in Webb, Laipato and Carberry, the maximum penalty for the grievous bodily harm offence was 10 years imprisonment, before it was increased to the current 13-year maximum.

41. In the matter of R v Pumpa [2014] ACTSC 223, I sentenced a 19-year-old man for a "one-punch" assault on a stranger which inflicted significant head injuries that had the potential to cause problems to the victim in later years but from which, at the time of sentencing, the victim had largely recovered. Mr Pumpa had a short criminal history that had involved one other not dissimilar violent assault, and he had committed a further assault after the offence I was dealing with. I sentenced Mr Pumpa to two years eight months imprisonment, reduced from three years six months for his plea of guilty, the first 12 months to be served by periodic detention after which the remainder of the sentence would be suspended.

42. I have had regard to all those sentences in determining the sentence in this matter.

43. Finally, I note that I shall set a relatively low non-parole period on the basis that Mr Williams may benefit from an extended period of supervision in the community, whether here or in NSW, after he is released.

44. Mr Williams, please stand. I record a conviction on the charge of recklessly inflicting grievous bodily harm.

45. I now sentence you to imprisonment for three years, with a non-parole period of 18 months. But for your plea of guilty, I would have set the head sentence at four years.

46. The sentence will be backdated to 6 September 2015, to take account of the pre-sentence custody I have already mentioned, and so it will run until 5 September 2018.

47. The effect of the backdating and the non-parole period is that you will be eligible for parole, at the earliest, in a bit under 15 months, namely 5 March 2017.

48. Mr Williams, if you do not do something serious to address your tendency to engage in entirely unjustified physical violence, you are likely to spend an ever-increasing portion of your time in custody. I have not set this sentence in order to ensure that you have access to programs or other treatment that might help with your tendency to violence, but I do hope that such help will be available to you in custody, and that you will make the most of whatever does turn out to be available. I also hope that you will take advantage of the 18 months or so of parole supervision that you will be offered after your release.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence Judgment of her Honour Justice Penfold.