STATE OF TASMANIA v JOSHUA KEVIN BEARD 15 DECEMBER 2022
COMMENTS ON PASSING SENTENCE BLOW CJ
Joshua Kevin Beard, you have been found guilty by a jury on charges of taking part in an affray and unlawfully damaging property.
Those charges arose out of an incident in a hotel in Ulverstone on Friday 17 January 2020. You went there after work, drank beer and spirits, and got very drunk. A group of railway maintenance workers were drinking in the bar. You did not know them. You were talking to some of the men in that group, apparently in a friendly manner, when another member of that group approached you and, without warning, punched you very hard to face with his left fist. He broke your nose. You fell to the floor. There is no evidence that he had any reason to punch you.
You remained on the floor for a little over a minute, bleeding from the nose. Your assailant and about five of his companions stood around you in a semi-circle, with two local men separating them from you. Your assailant said words to the effect of, “How did you like that? That was my left. How would you like to try my right? You’re not so big now walking around with your little man syndrome, are you?”
You became very angry. That is understandable. You got up, quickly walked a few metres to where there was a billiard cue, picked it up, and started to return towards the assailant and his companions, apparently holding the cue as a weapon. Two men prevented you from approaching the other group, but you picked up an eight ball from a pool table and threw it towards the group of men. You tried to grab a second ball, but you were stopped, and it rolled away. One of your friends disarmed you by removing the cue from you. However the throwing of the billiard ball provoked a very hostile reaction from the assailant’s group. Members of that group attacked various local men in the bar, including the two men who had been keeping the peace by restraining you. The fighting that broke out involved about a dozen men, possibly more. The hotel was equipped with several security cameras which recorded footage of the fighting that was played at your trial.
Shortly after the fighting broke out you followed some members of the hostile group out of the bar through a doorway, threw something at them, lost your balance, and fell down some steps. The fighting had moved outside. Someone outside threw a chair which hit you. You were hit by at least one member of the hostile group. You tried to go back inside, but two of them pulled you back down the steps. Then you got back inside, picked up a chair, and threw it out towards them. It happened to land on the back of a local man who had been knocked unconscious and was lying face down at the foot of the stairs.
You went back inside. The fighting had stopped. However, about two seconds after you came back in one of the railway workers, without warning or provocation, punched a local man to the face, knocking him unconscious. The fighting broke out again at that point. You armed yourself, first with a cue, and then with either a glass or a bottle, which you hurled towards the man who had knocked the other man out. The victim of that punch was recovering, and a local man was squatting next to him when, no doubt in a state of confusion, you attacked those two men with the cue. Subsequently you threw various missiles at members of the hostile group, including balls from the pool table, and at least one glass. At least one window was damaged by something you threw.
You defended the affray charge on the basis that everything you did was done for the purpose of defending yourself and/or other people, or at least that the Crown could not prove otherwise beyond reasonable doubt. The jury rejected that defence. I think this is a case in which I need to make findings of fact for sentencing purposes. My findings of fact must be consistent with the verdicts of the jury. After analysing the video footage of this incident, I think the jury must have been satisfied beyond reasonable doubt that, from the moment you threw the first ball, you were not acting defensively. I do not think there is any realistic possibility that the jury considered that you were acting defensively but using excessive force, nor that you were originally acting lawfully, but at some stage began to use force unlawfully.
However there are a number of mitigating factors that weigh in your favour. There is no evidence that you said or did anything that might have provoked the first act of violence on the part of your assailant. Everything that you did was the result of the most extreme provocation. None of the participants in the fighting suffered any significant injury. The reaction to your throwing of the first ball was out of all proportion to what you did, and you were about to be restrained by local men when others attacked them. There were two episodes of fighting, and the second episode was triggered not by you but by a man who knocked another man out without warning. I accept that you sincerely regret your contribution to the violence that evening.
The charge of unlawfully injuring property relates to the breaking of glasses and windows. The total cost of the repairs to the windows was $3,633. Several windows were broken or damaged, but I am not satisfied beyond reasonable doubt that you were responsible for damage to more than one window.
You were 36 years old on the evening in question and are now 39. You have a number of minor prior convictions. They include drink driving offences in 2001, 2007 and 2008, assaults in 2013 and 2019, and charges of destroying property – one in 2018 and two in 2019. You were on probation at the time of the incident that I am concerned with as a result of a community correction order made by a magistrate in March 2019. You were also on bail on a charge of assault – a family violence matter – for which you were later fined.
You are married with three children. Your counsel told me that you were living with your parents and that there were ongoing problems with the relationship with your wife, but it appeared that the relationship was certainly not at an end.
You were in constant employment from the time you left school until a work accident in March 2021 which left you unfit for work. You suffered serious injuries to your spine and your left arm. You had been in steady employment because you were strong and able to do manual work, but finding alternative employment is now practically impossible because you have poor literacy and numeracy skills. You have had to have several operations. You need medical treatment once or twice per week. You have been taking mood stabilisers and medication that is normally reserved for patients with multiple sclerosis. I do not think your involvement in the fighting at the hotel was serious enough to warrant sending a man in your physical condition to prison.
The footage of the fighting in the hotel was published very widely on social media, apparently throughout the world. You have been humiliated as a result of the widespread publicity.
Because of the injury that you suffered more than a year after this incident, you are considered unsuitable for court ordered community service. You live at an address that makes you unsuitable as a candidate for a home detention order. That really leaves me with only one sensible sentencing option, namely a wholly suspended sentence of imprisonment. I convict you and sentence you to 2 months’ imprisonment, wholly suspended on condition that you commit no offence punishable by imprisonment in the next 12 months. There is an application for compensation. I adjourn that application sine die.