STATE OF TASMANIA v ISAAC LEIGH BURKE 18 AUGUST 2023
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant has pleaded guilty to one with assault contrary to s 184 of the Criminal Code. He was 18 years old at the time, his date of birth being the 3 December 2002.
At approximately 5pm on Friday, 1 October 2021, he attended the Paddy Wagon Hotel in Glenorchy. The complainant, Darren Wiggins, who was born on 17 June 1992, attended the hotel with his sister, sometime between 7pm and 8pm on that evening. The defendant and complainant were not known to each other. Both the defendant and complainant were drinking, separately, throughout the evening. At approximately 11:05pm the defendant was in the beer garden. He was intoxicated and staff had given him a glass of water. The complainant noticed that the defendant was alone and unsteady on his feet. He was concerned that the defendant may fall and hit his head on the concrete floor of the beer garden and offered to keep an eye on him.
The defendant was seated on a chair in front of a half-wall. The complainant stood next to him. The defendant said something along the lines of “the next person who touches me, you’ll know all about it“. The defendant took a drink from his glass of water. He fell forward in his seat. The complainant pushed him back up against the wall. The defendant stood up and, with a roundhouse motion, struck the complainant to the left side of the head, with the glass still in his hand. The incident was captured on CCTV, which I have viewed, and from that footage I am of the opinion that the defendant was very drunk and did not appear to appreciate that he had a glass in his hand as he lunged towards the complainant.
The complainant received a 3-4cm laceration behind his left ear. The defendant received a laceration to his right hand. Police transported the complainant to the Royal Hobart Hospital where he underwent surgery to remove glass fragments from his ear and scalp.
I have read a victim impact statement. The complainant experiences a sharp pain down the left side of his head, behind his ear. That lasts for about a minute or so and brings on headache that lasts for a couple of hours. This impacts on his work and he has had to take breaks or time off work when it happens. He has not been out at night time since the assault as he does not feel safe going out in the evening.
At the time of the assault the defendant had no prior convictions but I note that he was dealt with as a youth for a charge of common assault by punching. He is a single man with no dependents. He lives with his mother and stepfather in Granton during the week and with his father on weekends and on some weekdays. His parents are supportive, including financially. He is currently unemployed.
He attended the Triabunna District School and Campania District School, leaving in Year 9. However, he re-entered school at Claremont College for year 11. He experienced some difficulties at school, as early as primary school. At his school’s instigation, he was referred to a paediatrician in relation to attention difficulties and he was diagnosed with hyperactivity disorder and was prescribed medication.
The defendant does not seek to excuse his level of intoxication however, there are some matters that ought to be noted. He had been in employment for about a month at the time of the assault. He was earning his first full adult wage. After finishing work on that Friday, he went to the hotel around 5:00pm and he drank beer throughout the entire evening. He indicated to police during his interview, that he did not drink alcohol very much.
He suffered a laceration, as mentioned, to his right hand which required four stiches. He was unable to work for a five-day period and was not fully covered by sick leave. He was left with a noticeable scar with obvious scar tissue, which will no doubt serve as a reminder of the evening.
He no longer goes out to drinking venues. He spends time at home and acknowledges that alcohol had been a source of trouble for him. I am told that he rarely drinks alcohol now and enjoys fishing and gardening.
He has the prospect of further employment in the automotive industry. He has been transparent with prospective employers advising them of his current court matters. Due to uncertainty as to the sentencing outcome, the positions have not been pursued although he believes that if he does not receive a custodial sentence, he can take up one of the positions offered to him.
This was a drunken act of aggression on a person who was acting as a Good Samaritan. Were it not for the defendant’s youth, his plea of guilty and that fact that in his intoxicated state he seemed unaware that he was holding a glass, I would have imposed an immediate sentence of imprisonment. As it is, the defendant is convicted of the crime of assault and sentenced to six months’ imprisonment, which sentence I wholly suspend on condition that the defendant commit no offence punishable by imprisonment for a period of two years. In addition, I make a community correction order with an operational period of two years and a special condition that within the operational period, he must 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 Robyn Cooley, who prepared the report, by the close of business Monday, the 21st August and advise Community Corrections of this sentence.