THE STATE OF TASMANIA v BAYLEY WAYNE BESTER 25 MAY 2022
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant, Bayley Wayne Bester aged 22 at the time, has pleaded guilty to one count of assault.
The complainant is Zac Matthew Massie who was aged 26 at the time. He and the defendant were not known to each other but had mutual friends including Mr Massie’s sister and her boyfriend.
On 9 February 2020 the defendant went to the Hobart Cup during the day, before going on to Cargo Bar in Salamanca later in the evening with friends, including the complainant’s sister. The defendant had been drinking at the Hobart Cup.
The defendant saw the complainant in an argument with the complainant’s sister and her boyfriend. He heard the complainant raise his voice and saw him pushed onto a nearby couch by a security guard. The defendant walked over and said something to the complainant, although he has no memory of what he said.
The security guard came back and moved the defendant back into the general crowd. The complainant got to his feet and walked over to the security guard and was behind him. The complainant then tried to get around or over the back of the security guard to the defendant. The defendant saw the complainant trying to get to him and he hit him once to the face.
The defendant accepts that a reasonable person would not have done what the defendant did.
The security guard pushed the defendant into the general crowd where he stayed, however, the complainant was asked to leave the building. Approximately 10 minutes later the defendant went outside and saw the complainant involved in a physical altercation.
The defendant knew the complainants name and searched Facebook and located his profile. He then sent a message apologising and admitting that he was involved.
The complainant received a cheek bone and orbital fracture, bruising and a 1cm laceration to his right eye area.
On 3 April 2020 the defendant attended the Hobart Police Station by appointment and voluntarily participated in an interview.
Amongst other things, he told police that he was drunk at the time; he thought the complainant was going to hit him, so he hit him first; he felt very remorseful after it, and that he should have walked away and not got involved.
The defendant has been in a long-term relationship for seven years, he and his partner have a daughter aged three years old. They board at Black Brush Road Mangalore with his partner’s mother. He is employed full-time as a plant operator with MKH Constructions.
The defendant has played Australian Rules Football since the under 9’s. He played representative football for the Mariners at the age of 16. At the age of 17 he played for the Claremont Football Club in the TSFL. He then played State league football as a teenager with the Glenorchy Football Club for two years. He is playing football in the TSFL this year. Impressively, whilst playing football, the defendant has never been reported. This tells one something about his general character in my view.
I am told, without demur, that the defendant is devastated, regretful and ashamed by his conduct and is genuinely remorseful as can be seen from the Facebook message sent to the complainant shortly after the event.
His explanation for his conduct is the over-consumption of alcohol, though he does not use that as an excuse for his conduct. Since the incident nonetheless, he has reduced his alcohol consumption and no longer ventures into the CBD to socialise. Instead he limits himself to a few beers with his teammates after playing football on a Saturday.
This case, whilst involving a serious assault, lacks a number of the aggravating features of typical alcohol fuelled attacks in licenced entertainment venues.
The defendant is still a young man. At the time of this incident he had just turned 20. Moreover, he is an active young man who enjoys his sport.
His convictions are confined to two traffic related offences and he has a good work ethic and a good industrial record.
Whilst what he did on the night in question was wholly unnecessary and excessive and should have been left to security, it is also clear that the complainant was behaving aggressively.
The defendant voluntarily attended the Hobart Police Station and was frank and cooperative with the police officers outlining his conduct without seeking to downplay or minimise his involvement in the incident. Fortunately it appears that the complainant’s injuries have not been severe or ongoing.
The defendant was and is clearly remorseful, and the incident is clearly very much out of character for him and is a blight on his previous impeccable record.
In my view this case does not mandate a sentence of imprisonment. The defendant is entitled to a chance to avoid such a mark on his record.
I convict you. I make a Community Correction Order with an operational period of two years. The order includes all of the core conditions and a special condition that the defendant must, within that operational period, satisfactorily perform 98 hours of community service as directed by a probation officer or a supervisor. The defendant is to make contact with the office of Community Corrections, not necessarily in person, preferably with Ms Emily Drysdale, by the close of business on Friday and advise them of this sentence.