STATE OF TASMANIA v DAMIEN JOHN BELL 21 DECEMBER 2023
COMMENTS ON PASSING SENTENCE JAGO J
Mr Bell, you appear for sentence in respect to one count of Criminal Code assault and one related count of common assault, which I am dealing with pursuant to s385A of the Criminal Code. You entered pleas of guilty to both of these charges when the matter was still before the Magistrates Court.
On 29 April 2023 you were playing Australian Rules Football at Spreyton. You were playing for the Spreyton Football Club and the complainant was playing for the East Ulverstone Football Club. During the fourth quarter, a scuffle occurred on the ground involving players from each club. The complainant saw one of his team mates on the ground and bent down to assist him. You approached the complainant from behind and punched him to the head in the area of his left ear. This is the act of common assault. The complainant stood up and hit you to the face. You retaliated by punching the complainant to his face and connected with his nose and cheek area. The complainant stumbled backwards and immediately felt his nose begin to bleed.
The following day, he felt nauseous, had blurred vision and a headache. He went to the Launceston General Hospital. He was not treated on that day but sought further medical assistance on 1 May 2023. At that point, it was confirmed he had suffered a nasal fracture. He subsequently underwent surgery and a nasal deviation and septum deviation were both corrected. A thermoplastic splint was fitted for two weeks.
The complainant has been badly affected by your violence. I heard a victim impact statement from him. He was forced to take time off work because of his symptoms, and he was unable to assist with the care of his young child, which upset him. His business was badly affected because of the time he had to take off work and he and his family suffered financially. Post-surgery, he continues to have difficulties. He now snores badly, which affects his sleep and he also suffers from migraines. He has continued to experience psychological consequences and has spoken to a psychologist. His family, who witnessed the incident, have been anxious and upset as a consequence of your actions.
It counts in your favour that you pleaded guilty. It is an early plea of guilty. It has saved the complainant the ordeal of having to give evidence about the matter. By way of prior convictions, you have no recorded history for matters of violence. There is one matter involving a charge of resist a police officer, but that occurred a long time ago and you entered into an undertaking and were not convicted in respect to that matter, which speaks to its level of seriousness. Beyond that, your record of prior convictions involves driving offences, including some relatively serious breaches of the Road Safety (Alcohol and Drugs) Act.
You are 33 years of age and employed as a fitter. You have a strong employment history. You are in a long term relationship and have two children, aged 4 and 2. By way of explanation, you say that you believed the complainant had hold of one of your team mates at the time you initially struck him. Whilst that may have been your belief, it in no way justifies striking someone from behind, in circumstances where the impact was completely unexpected and the complainant had no opportunity to brace or defend himself.
Football is a contact sport and those who play it consent to the application of force, provided it is within the rules. Of course, there is an inevitable risk that players may suffer injury – sometimes serious injury – in the normal course of play. But players do not consent to being unlawfully assaulted and punches struck behind the play and outside of the rules of the game are criminal acts. There was no justification for your conduct at all and the complainant, and others who play the game, are entitled to the protection of the law from such violence. Moreover, other players who might be minded to act as you did, must understand that such actions risk criminal sanction. Your behaviour brought the game into disrepute and it set a very bad example for members of the public, including young children, who were present at the game.
I note you were suspended for two weeks following a tribunal hearing in respect to this matter. I am not told whether you contested proceedings at the tribunal or otherwise, but in my view the suspension is of little relevance to the question of sentence. It inevitably involved different considerations, but in any event, could hardly be described as a stern and salutary response to your criminal behaviour.
In my view, general deterrence and denunciation are important sentencing considerations. The seriousness of your behaviour, and the context in which your behaviour occurred, means in my view a period of imprisonment is warranted. There are, however, good reasons which weigh against making you serve that period of imprisonment immediately. In particular, I note your lack of relevant prior convictions for matters of violence, your remorse which I accept is genuine, and the improbability of you re-offending. A wholly suspended period of imprisonment is appropriate.
Damien John Bell, you are convicted of the crimes to which you have pleaded guilty. You are sentenced to a term of imprisonment of three months. The whole of that sentence will be suspended for a period of 15 months on condition that you are not to commit any offence punishable by imprisonment during that time. I need to explain to you Mr Bell that if you do, in fact, commit another offence punishable by imprisonment, you can be brought back to this Court and an application made that you serve the period of imprisonment. The law is that a judge must activate the sentence unless it is unjust to do so.
I make a compensation order in favour of Luke Samuel Tannock in an amount to be assessed.