STATE OF TASMANIA v JERA AURORA and KARISHMA LLOYD 20 DECEMBER 2022
COMMENTS ON PASSING SENTENCE BRETT J
You have both pleaded guilty to one count of assault.
You committed the crime on 27 June 2022. You jointly assaulted a man at the Glenorchy Central shopping centre, where he was employed as a cleaner. He was, in fact, peacefully going about his work at the time of the assault.
You went to the shopping centre to look for this man because Ms Lloyd believed that he may have sexually assaulted her seven-year-old son in the toilets of the centre some time earlier. Ms Lloyd, you reported this assault to police on 19 May 2022, but there had not been an arrest and you were dissatisfied with the progress of the investigation. You made your own enquiries and, as a result, formed the belief that this man was the offender. You were wrong, he had had nothing to do with the assault on your son, and was not regarded by police as relevant to the investigation. If you had bothered to check with police before going to the shopping centre, rather than taking the law into your own hands, you would presumably have been told this.
However, that is not what you did. You both went there looking for him and when you got there, you confronted the man while he was going about his work. You did this in a public area and with members of the public and shop owners and staff present. You did not receive the admission you were looking for, but notwithstanding that, you proceeded to brutally assault him. The violence was started by Ms Lloyd pushing the man in the chest, causing him to fall over. You both then repeatedly kicked and punched him while he was on the ground. At one point, Ms Lloyd dragged him by his legs from a shop where he had fallen, back into the general area of the shopping centre, where you continued the assault. The assault included kicking him in the head and stomping on him. Both of you were wearing boots and the blows were hard. The assault was protracted and sustained, and continued despite members of the public attempting to intervene and stop you. In fact, when they first intervened, Ms Lloyd dragged the man away from the people concerned, so that you could both continue the assault.
After the assault, you Ms Lloyd made comments on social media stating that this man was a paedophile, that he had raped a seven-year-old and that he deserved what had happened to him. By arrangement with police, you both handed yourselves in the following day. Mr Aurora chose not to participate in an interview. Ms Lloyd did. She admitted what happened but continued to claim that the man was a paedophile and deserved what happened to him. Those claims and that belief were based on absolutely nothing and they contribute to the seriousness of your offending in my view.
The victim suffered serious injuries as a result of what you did to him. These injuries included a fractured right eye socket, a broken nose and bruising to his neck and back. He required surgery to fix the nasal fractures and received other treatment in hospital. I have received an impact statement from him. He is still physically and emotionally affected by the assault. The physical consequences include ongoing problems with blurred vision. The emotional and psychological consequences are also significant and continue to affect him on a daily basis.
There is no question that this is a very serious crime. The assault was brutal dangerous and protracted, and perpetrated on an innocent man at his workplace as he was going about his work duties. It occurred in public, you were in company with each other when you did this and the impact on him could well have been compounded by the abusive and derogatory Facebook posts made by Ms Lloyd afterwards. You in fact caused significant injury to the man, but given that you were kicking him hard to the head with boots, the consequences to him could have been far worse. Your behaviour deserves condemnation, and you both should be very ashamed of what you did.
A further factor of significance in terms of both the objective seriousness of the crime and your moral culpability for it is the question of whether this crime was perpetrated as an act of vigilante style retribution. If you had gone to the shopping centre with the preformed intention of assaulting the man, then such conduct, that is taking the law into your own hands in a violent and dangerous way, would be a significant aggravating factor. You both deny any premeditated intention to assault the man, but rather claim that your intention was only to confront him and hopefully obtain an admission. You claim that the violence was spontaneous, and only started when Ms Lloyd lost control of her emotions. According to what Ms Lloyd told a psychologist, her investigation seems to have consisted of taking video images of various employees of the shopping centre and then showing them to her son. One wonders how that was intended to promote the welfare of a seven-year-old child. In any event, although the son did not positively identify anyone, his distressed reaction was enough to satisfy Ms Lloyd that the person concerned may be the culprit. Rather than take this to police, she decided to go and confront the man, and to obtain an admission from him. She had had a few drinks before going there, and was in an angry and frustrated mood. She told the psychologist that when the man reacted in a fearful way, she “could just sense in the guy’s face that he knew he’d done something wrong”. She took this as an admission of guilt, lost control of her emotions and commenced to assault him. Mr Aurora, who was there to support her, joined in.
The matter is serious enough even on this factual basis. Your conduct in going there to confront this innocent man was misconceived and, at the very least, would have involved you confronting him in his workplace with an unfounded and completely unthought out but terrible allegation. It was arrogant and wrong of you to think that you had some sort of moral entitlement to do this. You categorically did not. You should have gone to the police with these assumptions. However, it would, of course, be even more serious if this you had gone there with the intention to assault this man.
Although the immediate, brutal and sustained nature of the violence inflicted by you causes me to have significant doubts about your claims, I think I have no option but to accept this version and proceed to sentence on that basis. There is some independent support for this scenario. Neither of you have any history of violent offending, and little in the way of other offending. Mr Aurora, apart from some matters of dishonesty in your youth for which you were cautioned, your criminal history is limited to traffic offending. Ms Lloyd, you have been convicted of some family violence offences which include trespass, destroying property and breaching the conditions of a family violence order. However, none of this involves physical personal violence. I do note though, that you were subject to an undertaking to a court to be of good behaviour when you committed this crime. The psychological report in respect of Ms Lloyd discloses that you have had a difficult life, including being the victim of serious sexual crime in your childhood and youth. This has resulted in some serious ongoing mental health problems, including complex post-traumatic stress disorder, major depressive disorder and a panic disorder. The psychologist has expressed the opinion that these conditions are responsible for your emotional and violent reaction towards this man at the time of the assault. He has also expressed the view that you are traumatised by and highly remorseful for your conduct. He believes there is little risk that you will commit a crime such as this again.
I think this history is relevant in a general way to explain why you acted as you did on this occasion, but it does not, in my view, reduce your moral culpability for your conduct to any significant extent. The psychologist has not explained the basis of the asserted causal link between your background and your criminal conduct, apart from saying that your pent up emotions and feelings got the better of you. This does not reduce your responsibility for deciding to take law into your own hands nor for acting on those emotions to perpetrate a violent and sustained assault. I do accept, however, that it is consistent with a spontaneous reaction rather than a planned and premeditated act of violence. You will be sentenced on the basis that what you did was spontaneous and out of character, notwithstanding that it was your own poor choices that put you in this situation in the first place.
Mr Aurora, your counsel has informed me that you also have been subject to abuse in the past, and that you are very remorseful for your conduct against this man. The remorse of both of you is consistent with handing yourselves into police the day after these crimes were committed, and also with your early pleas of guilty. I note that you both pleaded guilty at the first available opportunity when the matter was still before the Magistrates Court.
There is no question that your crimes deserve severe punishment. The need to deter others from acting in this way and to vindicate the innocent victim of your crime makes this necessary. A sentence of imprisonment is the only appropriate sentencing option. The only real question is whether either or both of you should be required to serve the whole or part of the sentence immediately.
In the end, after considerable reflection and consideration, I have decided to impose a wholly suspended sentence on each of you. However, in each case, a condition of suspension will be that you must perform the maximum number of hours of community service, so as to ensure some immediate and actual punishment. This has been a difficult decision, but I have decided to take this course because the violence was not premeditated, neither of you have a history of violent offending and you both pleaded guilty at an early time. I have also taken into account the potential impact of the imprisonment on Ms Lloyd and her son. The psychologist expresses the view that if you, Ms Lloyd, are sent to prison, your mental health will deteriorate. Further, you are currently the sole breadwinner for the family and you have the care of your seven-year-old son. The only option for him if you are sent to prison is to live with his father, with whom you have an acrimonious relationship and who is not happy to take him because of his own family arrangements. You have a close emotional bond with your son and I accept that he will suffer if you were to go to prison. I make the point that this is a somewhat equivocal factor, because it can be seen as aggravating the seriousness of your offending that you committed this crime knowing that you had that responsibility to your son. I consider that you have let your son down badly by doing what you did. Further, the fact that you might be separated from him for a period of time does not amount to an exceptional circumstance in the strict sense. However, in the circumstances of this case, it is an additional factor that weighs in favour of the suspension of the sentence. Mr Aurora, in your case, if Ms Lloyd is not sent to prison immediately, it would be unfair to send you, given that it was her who instigated this violence, and you both contributed equally to it. You bear equal culpability with Ms Lloyd, but should not receive a harsher sentence.
There is clearly some leniency involved in this decision, but you must also bear in mind that it is an actual sentence of imprisonment and if you do not comply with the conditions of suspension including by committing further offences or by not performing your community service, or by not undertaking the supervision, which I also intend to impose, then there is a high probability that you will have to serve the sentence in prison. So whether you have to do that or not will be entirely up to you.
The orders I make are as follows:
- You are each convicted of the crime to which you have pleaded guilty.
- I intend to impose the same sentence on each of you. You are each sentenced to a term of 18 months imprisonment. The whole of the sentence will be suspended for a period of 36 months on the following conditions:
- i that you are not to commit another offence punishable by imprisonment during that period
- ii that you will perform community service for a period of 240 hours. The court notes that the sections referred to in s 24 (5A) of the Sentencing Act apply to this condition. For the purpose of those provisions:
- you must report to a probation officer at the office of community corrections in Hobart within 3 clear days of today and
- the operational period of the order is 36 months.
- iii that you will be subject to the supervision of a probation officer. You must comply with this condition for a period of 12 months. That period will commence from today. The court notes that the conditions referred to in s 24 (5B) of the Sentencing Act apply to this condition. These include that you must report to a probation officer within 3 clear days of today. In addition to the core conditions the order shall also include the following special conditions:
(a) you must, during the operational period of the order,
- attend educational and other programs as directed by the court or a probation officer;
- submit to the supervision of a probation officer as required by the probation officer;
- submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer;
A compensation order has been made and adjourned sine die.