The Queen(Crown) v Kerim Hidic (Offender)

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Murrell CJ
• Judgment Date: 13 October 2017
• Docket Number: File Number: SCC 247 of 2016
• Date: 13 October 2017

[2017] ACTSC 307

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Murrell CJ

File Number: SCC 247 of 2016

The Queen

(Crown)

and

Kerim Hidic

(Offender)

Representation:

Counsel

Ms S Saikal-Skea (Crown)

Mr J Moffett (Offender)

Cases Cited:

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

R v Amosa [2015] ACTSC 34

R v EL [2016] ACTSC 241

R v Myles [2017] ACTSC 194

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

R v Sharma [2016] ACTSC 180

R v Smith [2016] ACTSC 330

Sharma v the Queen [2017] ACTCA 8

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 7, 11(3), 33, 110

Crimes Act 1900 (ACT) s 20

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — offences against the person — recklessly inflict grievous bodily harm — one punch attack — team sport — whether and to what extent sentence should include period of full-time imprisonment — nature of intensive correction orders

Decision:

Sentenced to two years and seven months' imprisonment to be served by intensive correction order with 300 hours of community service work.

Reparation order made in the sum of $13,560.20.

Murrell CJ

1 On 14 July 2017, a jury found that the offender had recklessly inflicted grievous bodily harm on the victim, contrary to s 20 of the Crimes Act 1900 (ACT) ( Crimes Act).

2 The maximum penalty for an offence against s 20 is 13 years' imprisonment.

Facts

3 On 16 December 2015, the offender and the victim played a game of futsal at the Australian National University. They were members of competing teams; the victim was a member of the Big Ball team and the offender was the goalkeeper for the Kolo Football Club (Kolo FC).

4 As the game progressed, the play became rough. There were heated exchanges between the offender and the number 7 player for the Big Ball team. Two Kolo FC spectators, who were friends of the offender, became involved. Others then joined in the aggressive verbal exchange. The victim did not engage in the exchange.

5 Eventually, the referee terminated the game.

6 As the victim was walking towards the exit, he realised that a scuffle had developed behind him that involved his team mates and younger brother. He turned back. He saw that a Kolo FC supporter was fighting a Big Ball player. The victim grabbed the Kolo FC supporter from behind in a bear hug and began to pull him away from the Big Ball player in an attempt to separate the two men.

7 The offender saw the victim holding his friend. He ran up and punched the victim in the face. The victim did not see the offender's approach, nor did he anticipate the punch. The victim fell to the ground and assumed a foetal position, covering his head. He feared for his life. He felt extreme pain and nausea. He sensed that some of his teeth were damaged. There was blood running down his face.

8 Almost as soon as the victim was hit, the melee ceased. The offender departed immediately.

9 The offender did not approach police until 1 February 2016, when he came forward because he felt “scared” and “guilty”. The offender had learned that police had spoken to a friend who was at the futsal game. When interviewed by the police, the offender said, “I don't know if [the victim] was holding him back or if he was fighting him.” He said that he had not seen the victim hitting anyone, just “grabbing” his friend. He had hit the victim above the eye, “just in the adrenaline, in the moment. I didn't know what was happening.” The offender said that he had “clipped [the victim] really good”. He said that everyone had been fighting, he was “just swinging away” and “was just in that mindset that I was being beat up, self-defence comes in.” He also said that he felt badly about his conduct and had asked his cousin to check whether the victim had recovered.

10 At the trial, the offender conceded grievous bodily harm and relied upon a defence of defending another. The prosecution submitted that, subjectively, the offender could not have genuinely believed that the victim posed a significant danger to his friend; throughout the night, the offender had been “looking for a fight” and it must have been obvious to him that the victim was merely restraining his friend. Further, the offender's conduct of punching the victim's face was not a reasonable response to any perceived threat to the offender's friend.

Victim impact

11 The victim was taken to Calvary Hospital, where he was kept overnight. He was diagnosed with an orbital floor fracture (a fracture to the eye socket). The fracture caused the victim's eye to appear sunken and significantly affected his presentation. He also sustained three chipped teeth, bruising and a four centimetre laceration to the cheekbone that required stitches.

12 The victim experienced significant pain and discomfort for some weeks. He took six weeks off work to recover, exhausting his leave entitlements.

13 The victim's driver's licence was suspended because he was experiencing double vision. The associated loss of independence, combined with the injuries, made the victim feel depressed.

14 The victim underwent dental work at a cost of more than $2000.00. Two teeth were capped. The victim has to be careful with what he eats so as to avoid damaging the caps.

15 In October 2016, the victim underwent ocular surgery. He took a further significant period off work to recover. Prior to the surgery, the victim was self-conscious about his sunken eye socket and avoided socialising. He was suffering from this condition on his wedding day.

16 The victim achieved a good recovery cosmetically. However, even since the surgery, the victim has felt that his eye is not completely normal. He still has some vision impairment in terms of colour perception, restricted movement and a loss of sensation in the facial area. It is hoped that the disabilities will gradually improve.

17 Since undergoing surgery, the victim has regained a probationary driver's licence, but does not have a full licence.

18 The victim continues to suffer negative psychological effects from the incident. He says that he will not return to playing futsal, although he has continued to play soccer.

19 The offence had a significant financial impact on the victim. The prosecution and defence agreed that an appropriate reparation order would be $13,536.20.

Objective seriousness

20 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 Myles [2017] ACTSC 194 ( Myles); R v Sharma [2016] ACTSC 180; R v Amosa [2015] ACTSC 34; R v Smith [2016] ACTSC 330; R v EL [2016] ACTSC 241.

21 During the game, the offender's conduct involved aggression that went beyond the level of aggression that is acceptable in competitive sport at any level. Although I do not think it likely, it is reasonably possible that, in his excitable and aggressive psychological state, the offender misinterpreted the victim's conduct and thought that the victim was behaving aggressively towards his friend. However, the offender's conduct of punching the victim's face was not a reasonable response to any perceived threat to the friend. The offender's culpability is not significantly mitigated by the fact that he may have perceived there to be a threat, because any such perception undoubtedly arose because the offender had allowed himself to become unacceptably aggressive during the game.

22 The defence submitted that the offender's circumstances render him less culpable than one punch offenders whose offences are fuelled by alcohol. I do not accept that submission. Like offenders whose offences are fuelled by alcohol, the offender permitted himself to get into a state (in this case, a psychological state) where he was more likely to behave in an unacceptable manner. In other words, he permitted his inhibitions to become lowered.

23 The injury that was caused to the victim was serious. Any injury to the eye is a serious matter. However, it was not towards the upper end of the spectrum of seriousness, bearing in mind that, by definition, all injuries that amount to grievous bodily harm are really serious.

Subjective circumstances

24 The offender is 23 years old. At the time of the offence, he was 21 years old.

25 The offender is of Bosnian descent. He was raised in Canberra in a loving and supportive family. He continues to enjoy good relationships with, and strong support from, family members.

26 The offender completed Year 12. At school he was a keen athlete. He has completed a diploma in sports management and attained Certificates III and IV in personal training, as well as a Certificate III in painting and decorating.

27 Currently, he works full-time as an apprenticeship painter and decorator in his father's business, working around 38 hours per week. In addition, as part of the apprenticeship, he is required to attend the Canberra Institute of Technology (CIT) three days per month. He has part-time employment as a personal trainer and receptionist at a gymnasium.

28 The offender no longer engages in team sports because he fears that his competitive nature may cause him to engage in risky behaviour such as the offending behaviour. He wishes to re-engage with karate as he believes that it would help him remain calm and disciplined, even under pressure, and that this may support a return to team sports. This approach demonstrates some insight.

29 The offender is being treated for a rare genetic condition that first manifested itself in life-threatening acute liver failure in 2014. After intensive treatment the offender recovered from the acute symptoms, but will require lifelong specialist treatment for his condition.

30 The...