STATE OF TASMANIA v DARREN OLIVER MACQUEEN 4 NOVEMBER 2009
COMMENTS ON PASSING SENTENCE EVANS J
The defendant has pleaded guilty to assault, the assault being that he threatened the complainant with an axe.
On 28 December 2008, the defendant was camping at Macquarie Heads, as was the complainant, William Wedd, his son and their friends. Their campsites were about 7 metres apart. The defendant's site is a permanent site that has been used by his family for about 25 years.
The complainant and his son had with them a quad bike and a motor bike. Their friends also had quad bikes. In the course of the defendant's time at the campsite he became agitated by the frequency of the use of bikes by others, and by bikes being ridden regularly in his vicinity.
On the day in question, the defendant was fishing on the beach and the complaint's son, amongst others, had ridden regularly behind the defendant and other persons who were fishing. The defendant approached the son and said, "You have 14 kilometres of beach to ride on. Take your bike and fuck off." When this exchange was reported to the complainant by his son, they together rode slowly along the beach, past the defendant, and the son pointed out the defendant as the person who had threatened him. The defendant felt that this was done to intimidate him. He returned to his campsite and as the complainant and his son returned to their site, the defendant approached them carrying a small axe, and said, "You won't intimidate me", and swung the axe so as to threaten the complainant who grabbed it. In the process, the complainant's wrist suffered a 2.5 centimetre cut that required three stitches.
The defendant is 51 years of age. He has no relevant prior convictions. He is employed in a responsible position in a mining operation and has an excellent work record. References provided to the Court speak very well of the defendant. Counsel for the defendant submits that the Court should deal with the defendant under the Sentencing Act, section 7(f), which would involve the Court, with or without recording a conviction, adjourning the proceedings against the defendant for a period upon the offender giving an appropriate undertaking, and, if that undertaking was complied with, the defendant would be discharged.
In exercising the discretion as to recording a conviction, the Court must have regard to the three matters listed in section 9, and it may make an order under section 7(f) if one or more of the five matters listed in section 58 are satisfied. Whilst a number of factors are in favour of the defendant, what concerns me is the nature and circumstances of his offence. It cannot be said to be trivial or minor. As to the relevance of these matters, see sections 9(a) and 58(b). For an agitated person to swing an axe so as to threaten another person, in the circumstances in which the defendant was, involved a serious risk, and was in no sense trivial conduct. I am not persuaded that I should deal with the defendant under section 7(f).
He is convicted and fined $400. The levy fixed by the Victims of Crime Compensation Act for his offence is to be paid by him to the Director, Monetary Penalties Enforcement Service within 28 days.