STATE OF TASMANIA v JACOB ANTHONY BURDON 17 AUGUST 2021
COMMENTS ON PASSING SENTENCE GEASON J
Mr Burdon, you have pleaded guilty to a charge of wounding, contrary to s 172 of the Criminal Code.
The facts are that you and the complainant are known to each other. On 7 January 2020 he boarded a Metro bus in Howrah, intending to travel to a friend’s house in Rokeby. When you saw him you showed your displeasure whereupon he said to you, “Where are your knives today and all your mates that you were going to bash me with?”. That was a reference to a previous altercation between the two of you. You responded, saying “Don’t do nothing on here, there are kids on the bus. I’ve got them on me and I’m waiting for you to get off the bus.”
The bus stopped at Duntroon Drive and both of you prepared to get off. As the complainant began to stand up, he paused to let you walk past first, apparently concerned about what would happen when you got off the bus.
He pushed and shoved you towards the door in an attempt to remove you from the bus. He had hold of your hair during this time. A scuffle ensued towards the front of the bus near the driver, and you both punched one another multiple times. You dropped a cigarette and lighter, and one of your shoes came off. At some stage, you slashed the complainant to the head with a small, sharp implement. The driver told both of you to get off the bus. You did so, but the complainant asked to be taken to the next stop so that he could be kept away from you. He got off the bus a short distance away and went to his friend’s house in Rokeby where he received first aid.
He was treated at the Royal Hobart Hospital for a seven centimetre cut to his head which required four stitches. He was discharged from hospital later that day.
You were arrested at another address in Rokeby. You denied wounding the complainant. You were taken to the Hobart Police Station where you participated in a video recorded interview. Amongst other things you said that the complainant was “having a go”, that you told him not to do that when there were children on the bus, but that he kept mouthing off the whole time. You told police he followed you down the bus and grabbed you from behind, that you remembered him kneeing you and punching you, and that you threw some punches back. You claimed to have been kneed to the head when you were trying to recover your shoe.
You told police that you did not have a sharp implement, a proposition not accepted by the State as truthful, and not one that you maintain. Whilst it is accepted by the State that you genuinely believed you needed to defend yourself, it is the State’s position, which you have accept by your plea, that your use of force was not reasonable in the circumstances as you believed them to be.
I received a victim impact statement to which I have had regard.
While your response to the complainant’s actions was excessive, I do not ignore that the circumstances which led to the commission of the offence, were triggered by his actions. Whilst clearly you bore some ill will towards him, and had threatened to hurt him when you both left the bus, a factor which no doubt contributed to his attack on you, I think it is reasonable to conclude that this offence would not have occurred but for his actions in actually engaging with you violently, but you took it too far.
This offence occurred in public, in circumstances where other people were present and would no doubt have been frightened. That is an aggravating factor. Offences which occur in a public place, particularly in the confines of public transport, where the risk to others is greater must be discouraged. The need for general deterrence is high.
I have regard to your record of prior convictions. Notably and relevantly there are not prior convictions for offences involving violence.
In 2021 you were sentenced to a term of imprisonment for trafficking in a controlled drug. The earliest release date I am told for that offence is June 2022, and your earliest parole date is 12 September this year. No time has been spent in custody in relation to this offending.
You are entitled to a discount for your plea of guilty, though it was a late plea.
In all the circumstances I have determined that the appropriate sanction is a short term of imprisonment. That reflects the need for general deterrence, the need to punish you, and reflects the seriousness of the action inflicted upon the complainant. I must have regard to the principles of totality in determining the duration of the sentence, given that you are presently serving another sentence. In all the circumstances I have determined that a sentence of six months’ imprisonment is appropriate.
Having regard to your circumstances, your prospects for parole, in September, and for some supervision around such release, the circumstances of the offending as I have described them, the absence of prior convictions for offences of violence, and to encourage your rehabilitation, I have decided to suspend the whole of the sentence for a period of three years. If you commit another offence punishable by a term of imprisonment in that period, you are liable to serve the sentence that I have just imposed.