STATE OF TASMANIA v ROBERT MAXWELL BROWN 10 DECEMBER 2020
COMMENTS ON PASSING SENTENCE BLOW CJ
Mr Brown has pleaded guilty to charges of assault and wounding in relation to an incident on 21 October 2019 when he attacked his mother’s partner. He has also pleaded guilty to two summary offences – assault and injuring property – which I will deal with under s 385A of the Criminal Code.
Mr Brown is 25 years old. He has had a problem with alcohol since he was 9 years old. He has been a drug user since he was 12 years old. He started with cannabis, and moved on to ecstasy when he was 14.
Last year on 21 October he tried methylamphetamine for the first time. He was living at his mother’s home. After consuming alcohol and methylamphetamine he travelled to his mother’s home in a taxi, refused to pay the taxi fare, swore at the taxi driver, and went inside. His mother’s partner, Mr Freeman, went outside and was paying the taxi driver when Mr Brown came out of the house wearing a balaclava, walked to the driver’s side of the taxi, and poured beer over the taxi driver through his open window. The summary charge of assault relates to that assault on the taxi driver.
A little later that evening, Mr Brown, his mother, and Mr Freeman were in the house when Mr Brown became angry, started shouting, and threw a can of beer which hit the breakfast bar and damaged it. The breakfast bar was part of the real estate. The house belonged to the State. The summary offence of injuring property relates to the damage to the breakfast bar.
Next, Mr Brown picked up a dining chair and swung it at Mr Freeman, who was sitting down. The chair left his hand and hit Mr Freeman to the side of the head. He got up and turned to face Mr Brown, but Mr Brown punched him to the face. His mother picked up a piece of wood about 1.5 metres long that she used to hold windows shut. Mr Brown took that piece of wood from her and hit Mr Freeman with it about eight times to the head, arms and body. He continued to do that when Mr Freeman had his arms up to protect his head. One blow with the piece of wood caused a serious wound to Mr Freeman’s left forearm. The violence ceased only because Mr Brown fell over. He got up and ran away. He was arrested a little later that evening.
Mr Freeman was 61 years old at the time of this attack. He was taken to hospital by ambulance. The wound to his left forearm was so deep that the bone was visible. It was repaired with stitches and subsequently healed. Mr Freeman also suffered a crush injury to the left little finger and a fracture to the base of his right thumb. He returned to the hospital the following day and underwent emergency surgery to the left little finger. That injury is likely to cause discomfort and cold intolerance for some time. There is a possibility of nail deformity and chronic pain. The right thumb was treated without surgery. There is a likelihood of post-traumatic osteoarthritis in that thumb in the future, and further surgery may be required.
Mr Brown has dozens of prior convictions, mainly for dishonesty, driving and family violence offences. He has several convictions for assault, as well as convictions for robbery, aggravated robbery, and aggravated armed robbery. He has been to prison several times.
By committing the crimes and offences that I am dealing with, Mr Brown breached the conditions of three suspended sentences of imprisonment. One of those suspended sentences has since been activated by a magistrate and served. The Crown has applied for me to activate the other two. I am required to activate each of them in full unless I form an opinion that it would be unjust to take that course.
The first of those suspended sentences related to events that occurred on 1 February 2018. At that time Mr Brown was a disqualified driver as a result of a drink driving charge. Police officers saw him driving on two occasions on that day. On the second occasion he drove through the front fence of a residence in West Moonah, narrowly missing several young children, drove out of the property through another fence, collided with a tree, unsuccessfully tried to reverse away, and fled on foot. He pleaded guilty to two counts of driving while disqualified, one count of failing to have proper control of a vehicle, and one count of failing to comply with the duties of a driver involved in a crash. He had failed to report the crash to the police. On 22 August 2018 he was sentenced by a magistrate to two months’ imprisonment, wholly suspended on condition that he commit no offence punishable by imprisonment for a period of two years.
The second suspended sentence related to incidents that occurred on 18 April 2019. At that time a family violence order was in place to protect Mr Brown’s partner and her children from him. He breached that order by going within 100 metres of the partner, by making contact with her, by going within 1,000 metres of her home, and by abusing her. He pleaded guilty to four charges of breaching the family violence order, and a charge of unlawfully setting fire to property. The property was the pram of one of the children. On 20 May 2019 a magistrate sentenced him to four months’ imprisonment, with three months of that term suspended on condition that he not commit another offence punishable by imprisonment for a period of two years.
In all the circumstances I do not consider that it would be unjust to activate the two suspended sentences in full, but I propose to impose non-parole periods in respect of each, equal to half of the activated terms.
There are a number of factors that weigh in Mr Brown’s favour in relation to these matters. He had an awful childhood and adolescence. He was exposed to family violence. He left home at the age of 10 and lived at the homes of friends, except when he was in Youth Justice detention. He was sexually and physically abused. He ceased his education during grade 7 and went to work on a fishing boat. He had to give up that work as a result of breaking his leg. He is a person of much lower than average intelligence, but he is not intellectually disabled. He has various health problems. He is an asthmatic. He suffers from seizures, for reasons that have not been diagnosed.
He is well aware that he got into trouble as a result of alcohol and methylamphetamine. He stopped using methylamphetamine and is determined never to use it again. He wants to overcome his alcohol problems. He had made arrangements to enter an alcohol rehabilitation program in the middle of this year, but ended up back in custody before he could start. He has been receiving alcohol and drug counselling in prison on a regular basis since September. His mother, her partner, and his own partner, are standing by him. He wants to get out of prison, buy a house with his partner, and live there with their daughter and his stepson. He is very keen to do the right thing. He has pleaded guilty and saved the State the cost and inconvenience of a trial.
As I said, he went back into custody in the middle of this year. He has been in custody ever since 24 July. Prior to that there were two short periods when he was in custody. For sentencing purposes it is appropriate to count the day that he went in and the day that he came out on each of those occasions as days that he served. On that basis he had served 25 days in custody prior to 24 July, so the appropriate course for me is to impose a series of sentences that are backdated to 29 June. I will be imposing cumulative sentences. That is to say, the activated suspended sentences and the sentence that I will impose for the 21 October offences will be cumulative with one another. I will impose a global sentence for all the offences that he committed on 21 October last year. Because these three sentences come one on top of another, that sentence will be a little shorter than I would otherwise make it, and I will impose the shortest possible non-parole periods in relation to all three sentences of imprisonment.
In relation to the crimes and offences committed on 21 October 2019, I convict you, Mr Brown, and sentence you to 11 months’ imprisonment, with effect from 29 June 2020. I activate the suspended sentence of two months’ imprisonment that was imposed on 22 August 2018. I activate the three month suspended component of the sentence that was imposed on 20 May 2019. I order that those three sentences are to be cumulative with one another. I order that you will not be eligible for parole until you have served half of the 11 month sentence, half of the two month sentence, and half of the three month sentence, with those non-parole periods to be cumulative with one another.
The total period of imprisonment that you are liable to serve is 16 months, backdated to 29 June 2020. The total of the non-parole periods is eight months, commencing on 29 June 2020.