R v Alex Niceski [2005] ACTSC 62 (3 March 2005)

Last Updated: 11 August 2005

THE QUEEN v ALEX NICESKI [2005] ACTSC 62 (3 March 2005)

EX TEMPORE JUDGMENT

No SCC 151 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 3 March 2005

IN THE SUPREME COURT OF THE )

) No SCC 151 of 2004

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

ALEX NICESKI

JUDGMENT ON TRIAL AND REMARKS ON SENTENCE

Judge: Crispin J

Date: 3 March 2005

Place: Canberra

1. The accused was arraigned before me yesterday (2 March 2005) on a single count alleging that on 13 November 2003, he intentionally inflicted grievous bodily harm upon a young man who for present purposes may be referred to simply as the complainant.

2. The accused elected to be tried by judge alone and I was bound by the provisions of s 68C of the Supreme Court Act which is in the following terms:

"(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall implement the principles of the law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict".

3. As in other trials, the accused was entitled to presumption of innocence, the Crown bore the burden of proving each element of the charge and the standard of proof was proved beyond reasonable doubt.

4. Any verdict had to be based upon the evidence admitted at the trial or if relevant, any matters of common knowledge that could be taken into account by reason of s 144 of the Evidence Act 1995 (Cth).

5. To establish the offence charged, the Crown had to prove three elements: first, that the accused inflicted harm upon the complainant; secondly, that the harm amounted to grievous bodily harm; and thirdly, that he inflicted such harm intentionally.

6. Whilst there have been numerous cases in which courts have been obliged to consider whether particular injuries and resultant disabilities fell within the description of grievous bodily harm, the term itself seems to have been defined only by reference to the scarcely more illuminating phrase, "really serious bodily harm" (see the remarks of Viscount Kilmuir LC in Director of Public Prosecutions v Smith (1961) AC 290 and 334). In this jurisdiction, however, the Dictionary within the Crimes Act 1900 provides that the term "includes any permanent or serious disfiguring of the person".

7. The incident during which the offence was allegedly committed may be briefly described. At about 4.00 pm on 13 November 2003, the accused and a number of workmen were carrying out renovations in the bar area of the Church Bar which is a bar located in Civic in the Australian Capital Territory.

8. About that time the complainant, who had apparently spoken to the owner of the Church Bar about work on the stage area, arrived at the premises. The evidence as to what occurred during the next few hours was somewhat vague, however it is clear that the accused and other workmen had sat down at a table near the entrance door to the bar and began drinking.

9. At about 8.00 pm the complainant approached the accused's table, sat down and had a conversation with the accused and the other men sitting at the table. During the course of this conversation, the accused plainly took exception to something that the complainant said and became extremely angry. Indeed, he seems to have completely lost control of his temper.

10. He grabbed the edge of the table they were sitting at and pushed it away with such force that it fell over. He rushed at the complainant and knocked him to the floor. He then pushed the complainant's face into a broken glass lying on the floor, punched him on a number of occasions in the face with a clenched fist, and kicked him with his foot. Other patrons in the bar and some of those who had been co-workers of the accused attempted to separate them but the accused grabbed a schooner glass from the bar and apparently threw it, striking the complainant in the face. He also picked up a wooden chair, raised it above his head and brought it down onto the complainant's body on two or more occasions. The accused and another person then left the complainant lying on the floor bleeding heavily from lacerations to his face and skull.

11. When subsequently interviewed by the police, the accused made a full and almost disconcertingly frank confession as to the conduct alleged.

12. As Mr Doig, who appeared on his behalf readily conceded, the only real issue was whether the complainant's injuries amounted to grievous bodily harm. This issue was debated at the close of the Crown case.

13. The complainant had been taken to hospital by ambulance arriving at about 9.20 pm, and he was found to have suffered lacerations to the left and right sides of his forehead as well as lacerations to the back of his head. He said that he regained consciousness at about 1.30 am and, for reasons that he did not explain, discharged himself at about 8.00 that morning. He was called the following day when the results of the CT scan became available, which indicated that he had sustained an impaction fracture to the outer table of the left frontal bone of his skull. Fortunately the fracture was only 7 millimetres long and did not penetrate to the inner surface of the bone.

14. He subsequently complained of a number of continuing symptoms including scarring, some measure of hearing loss, (described by Dr Taylor as being "slightly deaf"), a slight tremor in his right arm, pain in his right ear upon clenching of the jaw, persistent headaches, problems with his memory, and a speech impediment involving hesitancy and a stutter.

15. As the Crown prosecutor fairly conceded, whilst the scarring to his forehead was evident upon inspection, it was not disfiguring and could not of itself constitute grievous bodily harm. The scarring to the rear of the complainant's head would usually be covered by his hair and, in any event, could not have been described as disfiguring.

16. Furthermore, Dr Taylor, who is a plastic surgeon, had indicated that the scarring could be tidied up by means of relatively short surgical procedures under local anaesthetic. The complainant did not attempt to explain the nature and extent of the claimed memory loss and no speech impediment was evident during his evidence. Indeed he remained well-spoken throughout both his evidence-in-chief and cross-examination.

17. Whilst his general practitioner, Dr Hilton, expressed the opinion that some of the remaining symptoms were likely to be post-concussional, evidence of mere probability is not, of course, sufficient. Furthermore, Dr Hilton explained in her report that she had referred the complainant to a neurosurgeon, Dr Colin Andrews, and that he had seen the complainant on 8 December 2003 and 19 December 2004. She also referred him to an ear, nose and throat specialist for a review of his complaint of pain in the right ear upon clenching his jaw, and the complainant confirmed in evidence that he had seen such a specialist. However neither specialist was called to give evidence before me.

18. In the circumstances I could not be satisfied to the requisite standard that all of the continuing symptoms described by the complainant were sequelae of the concussion that caused the fracture.

19. Furthermore, I was unable to make any finding about the possibility of effective treatment or as to the likely duration of the symptoms in the absence of such treatment. The Crown case on this element of the offence was not only weakened by the paucity of evidence as to the causation of the symptoms, but by the absence of any medical evidence to suggest that either the continuing symptoms or any injuries responsible for them were of sufficient severity to constitute grievous bodily harm.

20. Accordingly, whilst I accepted that there may have been a prima facie case in relation to this element, I indicated to counsel that I could not be satisfied that the element had been proven beyond reasonable doubt.

21. Mr Doig indicated that he intended to call no evidence and that his client did not dispute that he was guilty of the lesser offence of intentionally inflicting actual bodily harm upon the complainant.

22. The indictment did not contain any alternative count of attempting to cause grievous bodily harm. I thereupon acquitted the accused of the offence charged in the indictment but delivered an alternative verdict pursuant to s 49 of the Crimes Act 1900 finding him guilty of the offence of intentionally inflicting actual bodily harm upon the complainant.

23. I must now turn to the issue of sentencing. Whilst the offence for which the accused has been found guilty carries a maximum penalty of only five years' imprisonment, in contrast to the 15 year maximum penalty applicable to the offence charged in the indictment, it is nonetheless a serious offence.

24. The community is entitled to expect that the need to deter this offender and others tempted to commit offences involving episodes of violence will be given due weight, and that the gravity of any such offence will be reflected in the sentence imposed.

25. As the videotape of some portion of the incident graphically demonstrates, the conduct of the accused on this occasion involved quite a frightening level of violence. Regrettably, many young people seem to think that violence is acceptable if prompted by some sense of grievance. It is not. Save for the odd case in which it is reasonably used in self-defence or for the defence of others, it invariably constitutes a serious criminal offence. Many also seem to believe that, unlike other offences, those who commit even quite violent assaults are likely to escape with a fine or some other non-custodial penalty. They are not. People who commit serious acts of violence should generally expect to be sent to prison. One of the aims of any civilised society is the protection of its citizens from violence and harassment, and courts must consider the need for general, as well as personal deterrence in passing sentence for assault and other violent offences, whether fuelled by alcohol or not.

26. The maximum penalty determined by the legislature is generally reserved for the worst class of case. However, viewed objectively and without regard for mitigating factors to which I will shortly refer, this offence might well be regarded as falling within that category.

27. The assault upon the complainant was both savage and sustained. Furthermore, as I have mentioned, I have been unable to be satisfied to the requisite standard that all of the symptoms referred to by the complainant were caused by the accused. I have no doubt that the assault was terrifying. The complainant has been left not only with some residual physical symptoms but also with a legacy of fear and emotional distress.

28. I must, however, take into account the fact that the evidence in this case strongly suggests that the offence was prompted by a threat which the complainant made to the accused concerning the accused's wife and perhaps other members of his family.

29. The learned Crown prosecutor submitted that, having regard to the authorities on the issue of provocation, the statement could not in context have been sufficient to reduce a charge of murder to manslaughter had the complainant been killed. I do not need to determine that question because, in my opinion, any issue as to whether the extent of the provocation was sufficient to meet that standard would not be a relevant consideration to the issue of penalty. I am obliged to take into account all of the surrounding circumstances, including the making of that threat and its impact upon the accused, irrespective of whether I entertained some reservations as to the impact that it may have had upon other members of the community.

30. The transcript of the record of interview contains, as I have indicated, some disturbing statements. It suggests to me, upon reading it, that the accused may still have been angry and perhaps somewhat defiant when interviewed by the police on 12 December 2003. Some of his answers are not entirely clear or, indeed, sensible, and some of them seem to be mutually contradictory. On the other hand, some of his disclosures are so starkly self-incriminatory that no-one could reasonably accuse him of a lack of candour. He claimed that the complainant had mentioned martial arts training and, after being asked to leave the bar, proceeded to threaten not only the accused but his wife and family.

31. Some limited support for this allegation was obtained from the evidence of Mr Michalas who recalled little of what the complainant said, presumably because as he explained most of "us", meaning he and the others at the table, were trying to ignore the complainant. However, he did recall the complainant talking about doing martial arts and saying something about the word "family" before the accused erupted.

32. I also take into account on this issue evidence from his wife and other witnesses to the effect that the accused is not normally a violent or even an aggressive person, and the fact that he has no previous convictions for assault. It is, I think, also appropriate to refer to the evidence given by two psychologists who had assessed the accused, although I will return to the significance of their evidence in other contexts shortly.

33. Mr O'Brien, who referred to an earlier assessment by Dr Stevens, commented on the results of the personality assessment inventory test and observed that the results indicated that the accused is not generally aggressive. The subscales revealed that for physical aggression the accused's score was less than the average for males, and for verbal aggression, anger and hostility his score was below the average for both males and females. He said that the accused clearly does not have any psychopathologies that would contribute to aggression or any emotional behavioural predispositions toward aggression. The result that he obtained on the test was that of a healthy person with no pre-disposing personality factors towards aggression.

34. The test indicated that the accused's perception of himself as not aggressive was accurate. This also accorded with his wife's evidence that he had never displayed evidence of aggression in his dealings with her. The test gave a good indication of the accused's response generally to situations that led to high arousal. Mr O'Brien expressed the opinion that the accused was clearly not a person who generally seeks such levels of stimulation and therefore was likely to be highly stable emotionally across a variety of situations.

35. Another psychological test confirmed that he was unlikely, under most circumstances, to respond with impulsiveness which could underlie aggression. Dr O'Brien explained, "therefore for him to do so would require an unusual set of circumstances in which he felt particularly threatened".

36. I might mention in passing that Mr O'Brien also expressed the opinion that the accused was now more fully appraised of his capacity for aggression and the necessity, particularly given his size and strength, to limit or preferably avoid all aggression-provoking situations. He considered it very unlikely that the accused would re-offend. He concluded by expressing the opinion that Mr Niceski was not an aggressive person and did not have an anger problem. The treatment provided had been salutary and he had accepted the need to modify his response.

37. On the basis of what the accused had told him, Mr O'Brien expressed the opinion that the behaviour of the other person was sufficiently provoking, especially given the threat towards Mr Niceski's family, to prompt the violent response that occurred. He said that his response had been inappropriately aggressive due to situational factors, such as the length of time the provocation had continued.

38. Dr Stevens, in his report, expressed the opinion that the accused tends to avoid conflict and repress anger. He said that the psychological dynamic was such that he tended to avoid conflict and repress anger, but then, if sufficiently provoked, would lose control in a violent manner. He has a reasonably high "threshold", as his record of avoiding aggressive behaviour would suggest. Dr Stevens also recommended that he have some sessions of counselling. The reference in Dr O'Brien's report to the intervention that had previously occurred would suggest that the accused had taken up that option. Dr Stevens also regarded the accused as being of low to moderate risk of re-offending.

39. In short, there were unchallenged psychological opinions to the effect that the accused is a person who is not prone to aggression but inclined to control any aggressive tendency, and that he has a high threshold to aggressive behaviour. These opinions also provide, in my opinion, some support for the proposition that there must have been something that provoked him to erupt as he did on this occasion.

40. I also note in passing, that when the complainant attended Dr Hilton's rooms on 26 November 2003 to have his stitches removed he had been "angry, impatient and verbally abusive in the waiting room".

41. When all this material is considered, I am quite satisfied that the accused was provoked by a threat that the complainant would harm his wife and family. I also accept the evidence contained in his interview with the police that on at least one earlier occasion, the complainant had been asked to leave the table but had declined to do so.

42. It seems likely to me from what is contained in the police statement that there had been a course of irritating behaviour pursued by the complainant for some time prior to the threat. Be that as it may, I accept that the accused, who the evidence reveals was an apparently non-aggressive man, suddenly erupted into a gross act of violence. I suspect that all those present had consumed much more alcohol in the four or five hours before the incident than the four beers suggested by the complainant, and that this may have contributed to their inability to recall the precise terms of the conversation. However, I have no doubt that a threat of some kind was made concerning the accused's family.

43. Had I concluded that the accused was a person who could fairly be described as a hoodlum prone to acts of violence or, indeed, if he had any significant record for violence, I would not have needed to consider his sentencing overnight. It would have been obvious that a substantial sentence of imprisonment was inevitable and he would already be in Goulburn prison, looking glumly through the bars and wondering how his family would manage without him for so long. However, the evidence establishes that he is, on the contrary, a young man of good character who has never previously been violent to the knowledge of his wife and friends. Furthermore, as I have mentioned, the absence of any tendency for inappropriate aggression has been confirmed by two separate psychological assessments. He has an excellent employment record and has been a good husband and a devoted father to his daughter.

44. Accordingly, I am faced with a somewhat puzzling incident in which an apparently decent and responsible man, not prone to aggression, has suddenly lost control and committed an offence of frightening ferocity. The first and obvious question is why he would behave in such a manner. I have, as I have already indicated, been satisfied that he was provoked in the manner that I have mentioned. Nonetheless, I remain concerned not only at the ferocity of the assault, but of the fact that it was sustained in the manner that it was.

45. I am also concerned about some of the statements that he made to the police, candid as they were. For example, he volunteered the statement, "I wanted to kill him, simple, beat him till he's dead" and "I hit him and kicked him anywhere I could". Later he said, "I just wanted to shut him up, I wanted to seal his mouth, he really grinded me, put it that way". Again, a little later, he was asked "Did you ever consider at any time walking away?" He answered "No, not after he started talking about my wife and family, no". He referred again to the threat to his family and then said "And I think he got what he deserved so that if I'm guilty, I'm guilty put it that way". Further on he was asked, "Did you want to kill him?" And he answered, "I would like to, yes".

46. It is disturbing that the accused would still have been speaking this way and still be thinking these things when interviewed some four weeks after the incident. I accept that some of these statements may have reflected not only continued anger that the complainant had threatened his wife and family, but a measure of defiance in the face of the accusations put to him. Consequently, it is difficult to know how seriously the statements should be taken.

47. In any event, he has not been charged with attempted murder and there are inconsistencies in the statement which may explain why he was not. Accordingly, I am not entitled to take into account any suggestion that he may have had such an intention. On the other hand, I accept the Crown's submission that he was by then displaying little, if any, evidence of contrition. However, Dr Steven's report suggests that by the time he saw the accused some months later he had been able to express some remorse.

48. I am inclined to accept the opinions expressed by the psychologists and also by the author of the pre-sentence report, that the risk of re-offending is relatively low. However, I remain concerned at the level of violence exhibited. I am unable to say whether the complainant's threat may have ignited some previously suppressed build-up of anger at other events in his life, or whether there is some other explanation not yet uncovered. Certainly, if he were to be given any opportunity to remain at liberty it might well be appropriate for him to attend an anger management course as recommended by his Parole and Probation Officer.

49. I am obliged to take into account a number of factors in his favour. First, there was provocation in the sense that I have explained. Secondly, he made a full, frank and indeed graphically candid confession. Thirdly, he attempted to plead guilty at the earliest opportunity, only to be sent back to the Magistrates Court when counsel realised the paucity of the evidence then available to support the charge. Fourthly, there is some, though limited evidence of remorse. Fifthly, he has no previous convictions for assault or violence upon any person. Sixthly, he has generally been a person of good character. Seventhly, he is not an aggressive person by nature and not likely to commit further offences. Eighthly, there would be a significant impact on his wife and daughter who is now 2½ years old if he were to be sent to prison for a substantial period.

50. I am, however, concerned that the pre-sentence report was prepared in March 2004, now 11 months ago. That report indicated that although the accused had presented with "a low risk of recidivism" he had had little regard for the severity of his actions and it was important that he address issues surrounding his aggression and the need for control. I am conscious of the fact that the psychological reports were prepared some months after the pre-sentence report and that they refer to steps taken to ensure that he did address his aggression and the need for control. Nonetheless, I note the opinion expressed by the author of the pre-sentence report that he would benefit from attending a more comprehensive therapeutic program such as the Violence Prevention Program conducted by ACT Corrective Services.

51. Having considered all the factors, I have concluded that it would be inappropriate for me to finalise his sentencing until I have an updated pre-sentence report giving me the benefit of an independent opinion more up-to-date than the one expressed 11 months ago. It would also be appropriate for the further report to be prepared in the light of knowledge that the accused had embarked upon the anger management course suggested and an assessment as to his performance in that program.

52. Accordingly, I have decided to defer passing sentence for a period of some months and release the accused on bail during the intervening period on condition that he accept the supervision of the Director of ACT Corrective Services and, in particular, that he comply with such directions as he may be given in relation to his participation in an anger management program.

53. I order that his bail continue but that it be varied by the inclusion of the following conditions. First, that upon the adjournment of the court he forthwith report to the Corrective Service Admissions Officer, secondly, as I have indicated, that he accept the supervision of ACT Corrective Services and, thirdly, that he accept any direction that he may be given in relation to his participation in an anger management program and, if enrolled in such a program, he co-operate conscientiously with those conducting it.

54. Now, Mr Niceski, I need to explain what is happening here. Having considered the matter, I have come to the conclusion that this case was really on a knife-edge. The violence was so severe that in the ordinary course of events a substantial term of imprisonment would be unavoidable.

55. Having regard to the evidence given about you by your wife, the other evidence that is available to me and the somewhat extraordinary circumstances in which this occurred, I have essentially decided to give you a chance to demonstrate that you can do something about the problem that led to this sudden eruption of violence. But you need to understand that you are staying out of jail by the skin of your teeth and so you will have to fully co-operate and stay out of any trouble. Because if you were to come back before me with any further incident of violence, or if you decided just to thumb your nose at the authorities and not co-operate with the arrangements that I have suggested, then you would really leave me no choice. There are a lot of people who trust you and they have persuaded me that I should trust you to this limited extent. Don't let them down.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 27 July 2005

Counsel for the accused: Mr A Doig

Solicitor for the accused: Abbott Tout Lawyers

Counsel for the Crown: Mr C Todd

Solicitor for the Crown: ACT Director of Public Prosecutions

Date of hearing 3 March 2005

Date of judgment 3 March 2005