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R v Wagle (No 2) [2014] ACTSC 160 (5 June 2014)

Last Updated: 7 August 2014

THE QUEEN v SAURAV WAGLE (NO 2)

[2014] ACTSC 160 (5 June 2014)

CRIMINAL LAW – Judgment and Punishment – Sentencing – Assault occasioning actual bodily harm

Crimes Act 1900 (ACT), s 24

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), ss 7, 3(1)(za)

Ashdown v The Queen  [2011] VSCA 408 

Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Liu v Western Australia [2012] WASCA 218

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

R v Bloomfield (1998) 44 NSWLR 734

R v Davidson (Unreported, ACTSC, 26 August 2010, Nield AJ)

R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179

R v Johnson (Unreported, ACTSC, 19 May 2004, Gray AJ)

R v Murray (Unreported, ACTSC, 26 March 2012, Higgins CJ)

EX TEMPORE JUDGMENT

No. SCC 135 of 2013

Judge: Refshauge J

Supreme Court of the ACT

Date: 5 June 2014

IN THE SUPREME COURT OF THE )

) No. SCC 135 of 2013

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

SAURAV WAGLE

ORDER

Judge: Refshauge J

Date: 5 June 2014

Place: Canberra

THE COURT ORDERS THAT:

1. Saurav Wagle be convicted of assault occasioning actual bodily harm on 28 April 2013.

2. Saurav Wagle be sentenced to imprisonment for fifteen months from 5 June 2014.

3. The sentence be suspended from 5 June 2014.

4. Saurav Wagle be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from today with a probation condition that he be under the supervision of the Director-General or her delegate for a period of two years from 5 June 2014 or such lesser period as the person delegated to supervise him considers appropriate and that he obey all reasonable directions of the person delegated to supervise him, including as to treatment and counselling for alcohol abuse.

1. On 28 April 2013, there was an incident at a house in Pearce where the prisoner, Saurav Wagle, lived with his younger brother and two other men.

2. During the altercation, Mr Wagle stabbed his brother who had to be treated in hospital for the injuries inflicted. As a result, Mr Wagle was arrested and charged with assaulting his brother, causing him actual bodily harm, intentionally wounding his brother, threatening to kill his brother and intentionally and unlawfully using an offensive weapon against his brother that was likely to endanger human life.

3. On 28 August 2013, Mr Wagle was committed for trial on these offences.

4. There were some preliminary mentions of this case in this Court, which I do not need to rehearse. On 8 April 2014, an indictment was filed containing two counts, namely a charge of assault occasioning actual bodily harm and a charge of threatening to kill Mr Wagle’s brother, intending or being reckless that his brother would fear the threat would be carried out and making the threat without lawful excuse in circumstances in which a reasonable person would fear that the threat would be carried out.

5. The trial of the charges on this indictment commenced on 9 April 2014 and, on 15 April 2014, the jury returned a verdict of guilty on the count of assault occasioning actual bodily harm and not guilty on the count of threatening to kill.

6. Assault occasioning actual bodily harm is an offence against s 24 of the Crimes Act 1900 (ACT) attracting a maximum penalty of imprisonment for five years. It is, thus, by the yardstick of the maximum penalty, a relatively serious offence but, by no means, the most serious in the criminal calendar. See Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372; [30]- [31].

The facts

7. For the purposes of sentencing, it is necessary for me to find the facts from the evidence given at the trial. The facts that I find must, of course, be consistent with the verdict of the jury. Where facts aggravate the offence, they must be found beyond reasonable doubt. Where Mr Wagle relies on mitigatory facts, I need to find them on the balance of probabilities. These principles have been set out and explained in Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at 12-14; [14]- [18]. I shall approach my task in this way.

8. I can conclude that sometime late on 28 April 2013, Mr Wagle approached one of the other members of the house asking to borrow money from him. That person refused to give him money and Mr Wagle left. He returned later and began arguing with that person who went to Mr Wagle’s brother, the victim of the offence. The victim then confronted Mr Wagle and a fight ensued. The victim said that Mr Wagle produced a knife at that stage. Mr Wagle said he did not have a knife with him and that there was only pushing and shoving initially but that he only took hold of a knife later when he needed to protect himself.

9. The fight between the two moved into Mr Wagle’s bedroom and at one point, they both fell over and landed on the floor with the victim on top of Mr Wagle. It was at this stage, Mr Wagle said, that, as he was trying to get the victim off him, he reached out and took a knife from the table or desk in his room and started to stab the victim in order to get him off him.

10. Having carefully considered the matter, I am satisfied beyond reasonable doubt that Mr Wagle produced the knife at the beginning of the fight but that he only stabbed the victim when he was on top of Mr Wagle. The victim was taken to The Canberra Hospital, where he was treated for a number of wounds, including six or seven on his back and a six centimetre wound on his side. They were described by Dr Catherine Samsun, the forensic medical practitioner called at the trial, as including some superficial cuts and abrasions and puncture wounds of about half a centimetre at the deepest. While any injuries with a knife are serious, it did not seem to me from the evidence that they were the most serious. They were certainly not aimed at or adjacent to any vital organs or the victim’s head where they were likely to do really serious damage. Certainly, when the victim arrived at hospital, he was triaged at Level 3 which, while serious, did not require attention within about thirty minutes. They have left scars, of which the victim is very conscious and which has affected him deeply.

Subjective circumstances

11. Mr Wagle was born in Nepal about thirty years ago, the second of three children to his parents. He had a supportive childhood and a close relationship with members of his family. He was educated in Nepal, but came to Australia in 2010 on a student visa and completed a degree in tourism management through the University of Canberra.

12. He has had casual employment as a kitchen hand for the past three years, being employed for between fifteen and twenty hours each week, as he is not permitted to undertake full-time work under the conditions of his visa. I had a work reference from an employer which shows that he has experience and that he is a good and industrious employee.

13. His student visa expired in March 2014 but he has applied for a further visa. The result of this application is not yet known. He proposes to undertake further studies in the area of tourism and hospitality. I do not know what effect on his visa renewal application, if any, the conviction, that I must enter for the charge of which he has been found guilty, will have.

14. Mr Wagle’s financial situation is described as stable, despite limited income.

15. Mr Wagle has some acquaintances and friends in Canberra, who are all described as “pro-social”. The victim and the other occupants of the house at Pearce have all moved out and appear to have no further contact with Mr Wagle. That is, of course, a pity because of the family relationship between Mr Wagle and the victim.

16. Mr Wagle started using alcohol at the age of twenty, initially drinking socially in moderation. About three years ago, however, he started drinking heavily, consuming alcohol to intoxication about three times a week. He would often drink up to eight standard drinks. He was intoxicated at the time of the offence. He has realised the problem that alcohol has been for him. He told the author of the helpful Pre-Sentence Report, however, that he had not drunk alcohol since the commission of this offence. I have no reason to doubt this and am satisfied that it is the fact.

17. The author of the Pre-Sentence Report suggested that he should undertake treatment in relation to his alcohol issues, to ensure maintenance of his abstinence or, at least, moderate drinking.

18. Mr Wagle has shown no remorse. He pleaded not guilty and is not to be punished or any punishment aggravated because of that. He claimed that he was unfairly labelled as the instigator of the offence and he has been unable to accept responsibility for his actions. He has blamed his brother for starting the argument. There clearly has been bad blood between him and his brother for some time. They do not now communicate at all.

19. In the opinion of the author of the Pre-Sentence Report, Mr Wagle’s consumption of alcohol had become increasingly problematic and contributed to this offence. It is important, therefore, to note that he ceased all consumption of alcohol for the past twelve months and despite the absence of remorse, there is some insight in that into his offending behaviour.

20. He is not recorded as having committed any prior offences. This entitles him to leniency. He has been assessed as at a low risk of re-offending. The primary risk is his alcohol use and lack of family support. Alcohol use is being addressed. It is not possible for me to do anything about the family support. Thus, specific deterrence does not loom large as a factor in sentencing.

21. Since the commission of the offence, Mr Wagle has had limited contact with his family in Nepal and his family have expressed disappointment with his behaviour. They have offered him little support. Indeed, it was suggested that he has no present contact with his family, again a matter of some regret.

The offence

22. Offences of personal violence are serious and the maximum penalty indicates that the courts are required to deal with an offence such as this one with particular reference to general deterrence and specific deterrence. In this case, it seems to me that specific deterrence may have a lesser role so long as Mr Wagle addresses his alcohol abuse as I have already mentioned.

23. A part of a measure of the seriousness of the offence is the harm that has actually been caused. See R v Bloomfield (1998) 44 NSWLR 734 at 737. In that case, it was also made clear that the degree of violence is also relevant.

24. In this case, the victim received a number of relatively superficial wounds but nevertheless serious punctures to his body which required treatment at hospital. As to the violence, it does not seem to me to have been a very violent attack given the nature of the injuries and the description of the incident given at trial.

25. The use of a knife is also an aggravating factor. There is no doubt that, as the courts have said, the community abhors the use of knives. See Ashdown v The Queen  [2011] VSCA 408  at  [20] . Ordinarily, the use of a knife will require some emphasis on general deterrence in the sentence to be imposed. See Liu v Western Australia [2012] WASCA 218 at [86].

Victim Impact Statement

26. The victim provided a Victim Impact Statement which shows the effects the offence has had on him. He became scared and felt vulnerable and his mood was noticeably affected, becoming sad, serious and depressed instead of his usual cheerful, smiling self. He has lost interest in recreational activities and his fellow workers noticed his change in demeanour. He is also very conscious of the scars that remain and he says that every time he looks in the mirror, he is reminded of the incident. He does not now go to the beach, go swimming or even wear singlets because of this.

Sentencing practice

27. As required by Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323 at 331; [38] and s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT), I was provided with some sentencing remarks from this jurisdiction. I have had particular reference to R v Murray (Unreported, ACTSC, 26 March 2012, Higgins CJ), R v Johnson (Unreported, ACTSC, 19 May 2004, Gray AJ) and R v Davidson (Unreported, ACTSC, 26 August 2010, Nield AJ). Relevant, however, is that each of these cases involved a plea of guilty which makes the circumstances rather different and this case more serious. Both counsel, however, submitted that they provided some basis for assessing current sentencing practice.

Other matters

28. No doubt Mr Wagle has had some difficulties in Canberra. He clearly resents the fact that his younger brother appears to be more successful than him and that his brother is not very respectful to him. His brother formed a close relationship with the other members of the household, which may have exacerbated this and alienated Mr Wagle. They have now moved out, as I have said, and Mr Wagle shares the premises with other people not from Nepal.

29. While this may, strictly speaking, be described as a family violence offence, it does not seem to me to bear the features that are referred to so graphically by Johnson J in R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at 192-6. It has, however, the tragic consequences that it has split the family.

30. Having considered the matter very carefully, it seems to me that no other sentence than a sentence of imprisonment is appropriate for the seriousness of the offence and having regard to all the other circumstances.

31. I note that Mr Wagle has been assessed as suitable for a community service work condition to a good behaviour order and that work is available for Mr Wagle were I minded to make such an order. I note also that Mr Wagle is suitable for the service of a term of imprisonment by periodic detention and he has signed the relevant undertaking.

Consideration

32. I take into account the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). I take into account the nature and circumstances of the offence and its seriousness as I have described it above. These matters require due weight to be given to general deterrence. I have regard to Mr Wagle’s personal circumstances as I have described them above.

33. Mr Wagle, please stand:

1. I convict you of assault occasioning actual bodily harm on 28 April 2013.

2. I sentence you to imprisonment for fifteen months from today.

3. I suspend the sentence today for two years.

4. I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from today with a probation condition that you be under the supervision of the Director-General or her delegate for a period of two years from today or such lesser period as the person delegated to supervise you considers appropriate and that you obey all reasonable directions of the person delegated to supervise you, including as to treatment and counselling for alcohol abuse.

34. [His Honour then spoke directly to Mr Wagle]

35. What I have done is I have said this is so serious that I would send you to gaol for fifteen months, but I do not require you to go to gaol. I am suspending – putting aside – the order for the moment. I want you to sign a document which says you promise not to commit any more offences, not to do any more crime, for a period of two years. If you do commit a crime, you can be brought back before me and I can make another sentence and that might include sending you to gaol so you have to be careful.

36. As a condition of that order, you are under the supervision of Corrective Services. There will be a person there who will look after you and you will need to talk to them every week, every fortnight, every month or something like that. Now, that is a bit of control, that is supervision, but it is also an opportunity for you if things go wrong that you can talk to someone and they can tell you where you might go, who you might see to assist you, all right, to help you.

37. One of the things that I am asking them specially to look at is alcohol. Now you say, and I have accepted, that you do not drink anymore, but there is always a risk and there are some treatment or counselling options that might help you just to make sure you are not going to drink again because when you drink too much, you go and do silly things.

38. This is your only offence and it is a very serious offence. To go about stabbing people with knives is very serious, but I do not require you to go to gaol because it is your first offence and because of all the other matters that I have mentioned. I hope that you will not commit any more crimes and, if you can comply with this order, then there is a good chance that you will not have any further crime so I hope that is the position.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 6 August 2014

Counsel for the Crown: Mr C Wanigaratne

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the defendant: Mr R Davies

Solicitor for the defendant: Legal Aid

Date of hearing: 5 June 2014

Date of judgment: 5 June 2014