STATE OF TASMANIA v BEAU ABEL 13 DECEMBER 2022
COMMENTS ON PASSING SENTENCE GEASON J
Mr Abel you have pleaded guilty to assault.
You were 32 at the time of your offending.
The victim, Mr Garcia, who was 51 at the time was in a relationship with a Ms Neven.
Five days before the assault occurred her daughter had passed away. You were in a relationship with her at the time of her death.
On the afternoon of the 10th of March 2021 Mr Garcia had travelled to Sorell to visit Ms Nevin. He met her there in St. Georges park .
He was intoxicated and made comments to her which upset her. These related to her daughter, your late partner.
Upset by these comments she left him there and went to her home. You were there with a Mr Kelleher.
She told you what had happened and complained about his behaviour telling you both that he was drunk.
In due course you both decided to go to the park to confront him.
You grabbed a broom handle and Mr Kelleher grabbed a baseball bat.
Ms Nevin said she did not want any trouble but that you should smash up his alcohol bottles.
You both walked to the park with Ms Nevin and when you got there he was sitting underneath a tree close to the main road. There were two vodka bottles next to him with about 1/3 remaining in each.
Ms Nevin made some comments to him about what he had said. He did not react.
You then struck him with a broom handle leaving a bruise on his arm and upper shoulder area. You then stepped away.
Mr Kelleher then delivered I forceful blow to his head with a baseball bat rendering him unconscious before striking him a second time to the head. Those blows proved fatal.
You all then left the scene and returned to Ms Nevins residence where Mr Kelleher hid the baseball bat before returning to the scene shortly afterwards.
You disposed of the broom handle on the way back and you also called an ambulance for Mr Garcia.
Later that day police attended at Ms Nevins address – they spoke to you.
You initially denied any involvement in what had happened in the park but subsequently admitted your presence and your involvement to the extent I have described.
You were arrested and participated in an interview with police which was recorded.
You told police that you had known the deceased for a few months, that Ms Nevin was hysterical and crying after she got back to the house.
Ms Nevin had told you what he had said to her earlier about her daughter.
You said that she was concerned that he would come to the house
As a result you procured the broom handle and you stood outside waiting for him before walking to the park.
You described the deceased as “paralytic drunk” when you got there.
You told police that you said something to the effect “fuck you, you cunt” -before walking up to him telling him he was a “fuck head” and hitting him across the arm with a broom handle using what you described as a six out of 10 force.
You told police that you were the first to strike the deceased.
You said you panicked after Mr Kelleher’s actions and left the scene ringing an ambulance as you returned to the house.
It is not asserted that you are criminally responsible for the fatal injuries sustained by the deceased.
It is asserted and I accept that your assault rendered the deceased less able to defend himself from Mr Kelleher though it must be accepted that his drunken condition contributed significantly to that situation.
I also accept that whilst you did not intend to encourage Mr Kelleher to act as he did the practical effect of your assault will have been to do so.
At the time you assaulted the deceased he was defenceless and posing no threat to you.
You appear before the court with a number of prior convictions, but no prior convictions for crimes of violence.
It must be accepted that so soon after the death of your partner you were highly emotional and perhaps behaving irrationally and certainly less able to process maturely the comments attributed to the victim which were in fact best ignored.
It cannot be doubted that you had sufficient opportunity to resist any engagement with him, let alone to assault him for the remarks that he had made.
Your assault occurred in a public place, and was witnessed by others and you went to the scene with a weapon. Those matters are aggravating.
Whilst I consider that in all the circumstances that day, the need for personal deterrence for your offending is reduced, the need for a sentence which operates to deter others is required. There is a significant risk attaching to actions such as yours and the use of a weapon always carries with it the risk of serious harm.
In so saying I do not ignore that the consequences of your actions in terms of the harm inflicted upon the deceased were limited to bruising.
You are not to be sentenced for Mr Kelleher’s actions which caused his death.
I received a report in relation to you. You are considered unsuitable for community service orders.
I will discount the sentence that I would otherwise have imposed for your early plea of guilty.
In my view a sentence which serves to operate adequately as a general deterrent, and to discourage you from future offending, is one involving a suspended term of imprisonment.
That reflects the public nature of your action, your going armed to confront a man you knew to be intoxicated and who was, on your arrival, plainly very intoxicated, seated, and unable to defend himself.
I impose a sentence of three months imprisonment wholly suspended on condition that you are of good behaviour for a period of two years, if you commit an offence in that period you may well be required to serve that sentence.