STATE OF TASMANIA v TYE ERIKS BENSON WOOD J
COMMENTS ON PASSING SENTENCE 24 SEPTEMBER 2019
Tye Eriks Benson has pleaded guilty to one count of assault. On 3 March 2019 at approximately 2:45am, he was at a hotel in Murray Street, the Observatory Bar. The complainant, Jye Smith and a friend were speaking with a woman near Mr Benson trying to convince her to dance. A little later the defendant’s partner went and spoke with Mr Smith. The complainant learnt in to speak to the defendant’s partner and the defendant kicked out hitting his thigh. He threw a small object at the complainant. Then he punched the complainant once to the jaw with his left fist before they were separated.
The complainant later attended the Royal Hobart Hospital. Medical investigations revealed that his jaw was fractured.
The matter was reported to the police. The police interviewed the defendant on 21 May 2019. He told the police while he did not deny the incident he had no memory of it, even after been shown CCTV footage of the incident.
It was hoped the complainant’s jaw might heal itself. He had almost two weeks off work. After two weeks it was not healing, and it was found that surgery was required. Two plates and seven screws were required to stabilise his jaw. He had another two weeks off work. That was very tough as he runs a small business and his business partner had to take on all the extra work. The complainant could not sleep for days because of the pain. He could not eat solid food for 8 weeks.
Unfortunately the surgery did not did not proceed well. He cannot smile. His bottom lip is numb and doesn’t move. The complainant is very self-conscious and embarrassed to talk to clients at work now. The surgeon has told him that within the next eight months they will know whether the deformity is permanent. The incident has affected his confidence and changed his whole outlook. It really scared him and made him realise how precious life is. He expects that he will never go out socially again.
The defendant was 20 years of age at the time. He has no relevant prior convictions.
I have a recent comprehensive medical report from the defendant’s general practitioner, Dr Christopher Hilton. In May 2009 when the defendant was only approximately ten years of age, he fell 5 to 6 metres off a roof. He sustained a severe head injury involving multiple fractures and subdural haematomas requiring surgery immediately and later. He required follow up rehabilitation including assessment and rehabilitation with a neuropsychologist and follow up with a clinical psychologist. Before his accident he had performed in the average to above average range . An assessment in 2009 showed his intellectual function was in the borderline range. He had symptoms of frontal lobe disturbance. Significant behavioural and cognitive changes were noted. There were significant difficulties in emotional control and other deficits seen following a traumatic brain injury. These included cognitive fatigue which is often associated with behavioural problems, and mod swings. It was noted that it was very important to avoid alcohol or illicit drug use given their negative effect on existing deficits.
The defendant’s difficulties continued throughout his adolescence with ongoing cognitive and behavioural difficulties. These included angry outbursts, aggressive and impulsive behaviours, memory and attentional difficulties and impairment of cognitive function. He was expelled from school due to aggressive behaviour.
A review by a paediatric neurologist in August 2014 assessed him as having had an acquired brain injury with evidence of mood dysregulation and possible frontal disinhibition. Despite his difficulties, he was studying with an aim of becoming a rigger, he was living with his mother and bike riding and gym training to keep fit. In 2015 he became a fitter and was to start another course at TAFE.
In August 2018 he had developed anxiety and reported being easily angered and finding it difficult to regulate his emotions. He was referred to mental health services.
I have already mentioned some of the steps that the defendant has taken to improve his prospects of employment. He has taken other steps. He completed a Certificate 1 in Carpentry. He worked with Forestry as a tree planter but had to leave due to health problems, as noted he fatigues very easily. He enrolled in a Certificate II in Construction and Building. However he was not able to complete that course due to difficulties concentrating and fatigue. He obtained a positon with the Hobart City Council as a labourer and held that position for 18 months.
He is still living with his mother and is now employed as a confectioner at Cadburys working 2 to 3 shifts a week, 12 hour shifts at a time and he also does some casual landscaping work. His aspiration is to enrol in a plumbing course. His intention is to continue working at Cadburys while he completes that course.
He has a supportive partner and she has two children and Mr Benson is a father figure to them. He coaches one of the children’s under 9 football team.
He consulted Dr Hilton after this incident, describing times when he is easily angered. Dr Hilton notes that he appears to have acted very impulsively which is not unexpected given his brain injury and symptoms. He notes that alcohol and the inevitable fatigue of the very late hour of the incident were contributing factors.
In response to the incident and after receiving medical advice reiterating the importance of being very careful with his alcohol consumption, Mr Benson has significantly reduced his alcohol intake to 1-2 drinks on social occasions every two to three weeks.
He has recently had a National Disability Insurance Agency plan approved. One of the primary goals he identified is to better self-regulate his emotions and to attend an anger management course.
As I have mentioned, Mr Benson did not have any memory of the incident. He was very distressed to learn what he had done. He is regretful for his actions. He takes the matter very seriously. He pleaded guilty at a very early stage of the proceedings in the Magistrates Court when he was unrepresented.
This assault involved a single punch, demonstrating the serious harm that can be caused by a single blow particularly when the victim is not expecting the blow and does not have the chance to defend themselves. While a gaol sentence would often be imposed for such conduct, I regard this as an exceptional case. The assault was spontaneous and the defendant has cognitive and impulsivity difficulties. His criminal culpability was reduced, he was taken unawares by his own reaction. However, he now has knowledge that if does not make the adjustments that he needs to make to his lifestyle, such as addressing anger management, alcohol consumption and being aware of the risks of fatigue, he may react with violence with potentially serious consequences for others and for himself.
Mr Benson is a young offender who is learning how to manage his difficulties and get on with living a productive and responsible life. I am satisfied that an individualised response to this offending is appropriate and the sentence should give prominence to his rehabilitation. I had been going to impose a community correction order with community service as a condition. However, Mr Benson is not suitable for community service because of his health condition. I consider the penalty should not be more harsh than it was going to be because of a factor beyond his control. He is suitable for supervision and recommended for such an order. Case management would promote his rehabilitation by engaging mental health supports and assist with referrals in relation to his aggression and alcohol use. It is in the community’s interest that a young offender should be encouraged to do everything he can to ensure he does not react in this way again.
I make the following order. I record a conviction and I impose a community correction order. Core conditions are made and these include:
- The defendant must not during the period of 18 months from today commit an offence punishable by imprisonment;
- The defendant must report by 5pm tomorrow to a probation officer at 114 Bathurst Street, in Hobart.
Special conditions are that:
- The defendant must, during the operational period of the order being 18 months, attend anger management counselling as directed by a probation officer;
- The defendant must, for 18 months, submit to the supervision of a probation officer;
- The defendant must submit to medical or psychological assessment or treatment as directed by a probation officer;
- The defendant must comply with the directions of his probation officer regarding his alcohol use, including assessment, treatment and counselling.