STATE OF TASMANIA v JAMES ALAN COLE 18 OCTOBER 2023
COMMENTS ON PASSING SENTENCE WOOD J
James Alan Cole has pleaded guilty to crimes arising from two separate incidents. On 3 January 2021, he committed an aggravated burglary, assault, an unlawful act intended to cause bodily harm, and also stealing. On 3 September 2021, he committed an assault.
I will mention first the crimes he committed on 3 January 2021. The defendant and Ms Reynolds had been in a relationship from around late 2018 until September 2020 and they had a young daughter together. After the relationship ended in November 2020, the defendant became aware that Ms Reynolds was in a relationship with Mr Clayton Glasgow, the complainant. At this stage, Ms Reynolds and her daughter would stay overnight at the complainant’s home and she was keeping some of her property there. The defendant began contacting Ms Reynolds demanding to know where the complainant lived and threatening to attend his property.
In late 2020, as a result of the defendant’s behaviour, Ms Reynolds ended her relationship with the complainant and began to move her property out of his house. In the days leading up to the incident, the defendant began questioning Ms Reynolds about whether all of her belongings had been removed from the complainant’s house yet. She told him she still had two bags to collect and, although Ms Reynolds had not asked the defendant to do so, he said he would go and get them. He took it upon himself to do this as he did not want Ms Reynolds going back to the complainant’s house or seeing the complainant.
During the evening of 3 January 2021, the defendant contacted a friend, Shane Jackman, and asked him if would come for a drive to the complainant’s home. Mr Jackman understood from his conversation with the defendant that the defendant was attending the complainant’s address, that there may be a physical or violent altercation or confrontation then, and that he wanted Mr Jackman to accompany him for assistance. Mr Jackman agreed.
The defendant collected Mr Jackman and drove to the complainant’s address in Dodges Ferry, arriving at around 10:00 pm. The complainant saw the defendant had arrived in a vehicle and opened his front door. The defendant asked, “Where is Gemma’s stuff?”. The complainant turned his head to look into the lounge room, replying, “There is nothing here.” While the complainant’s head was still turned, the defendant punched him hard to the back of the head. This conduct gives rise to the crime of assault. The impact of the punch knocked the complainant to the floor. The defendant entered the lounge room and began punching and kicking the complainant while he was on the ground. The complainant covered his face as best he could but the defendant continued to punch and kick him to the head. This conduct gives rise to the charge of aggravated burglary with intent to commit the crime of assault, and committing an unlawful act intended to cause bodily harm. After a further number of blows, the defendant ceased hitting and kicking the complainant. The complainant was bleeding heavily from a number of cuts to his face and his face was severely swollen.
The defendant stole the complainant’s mobile phone and left the house. The complainant walked a distance to his workplace to seek assistance and called police. Police attended and, in view of the complainant’s significant facial injuries, called an ambulance. The defendant returned to his home at Sorell where he washed the complainant’s blood off his hands and then drove to take Mr Jackman home to Claremont. The defendant contacted Ms Reynolds by phone and told her he went to the complainant’s house and got her bags, then, laughed and said, “He won’t be seeing my daughter again,” and, “I’ve left your boyfriend in a pool of his own blood.”
When the police attended the complainant’s address, they observed a significant amount of blood on the floor inside the front door. The police arrested the defendant and he was interviewed. He admitted hitting the complainant to the face while he was on the ground. He said in total he hit him maybe 15 times and that he kicked him once, but that he did not have shoes on. In fact, he kicked Mr Glasgow more than once. It is accepted, I note, by the State that he was not wearing shoes at the time of the kicking. The defendant agreed, in speaking with police, that he had “pure rage” and he “totally lost control”. He said that his friend, Mr Jackman, was present to make sure he did not “go over the top” and that Mr Jackman did not do anything in relation to the crimes. He also told police that the complainant was a lot bigger than he was and he did not want to go by himself.
The complainant sustained various injuries, including swelling and a laceration above his right eyebrow which required seven sutures, a laceration to his left cheek requiring seven sutures, a laceration to his chin, a puncture wound to his upper lip, jaw misalignment, bruising including to the area around his eyes and cheeks, and a fractured sinus bone. He also suffered pain to his ribs and stomach.
The impact on the complainant goes beyond the physical injuries he sustained. He feared for his safety in his own home, was depressed and anxious, and he experiences flashbacks and nightmares. He is now fearful and anxious to venture outside his home and has become socially isolated. His relationships with family, friends, and work colleagues have become strained due to irritability, fear, and anger. There has been a financial impact, too. The complainant had to take an extended period of time off work because of his injuries and, as a result, he used up his sick and holiday leave, and risked losing his employment.
This is an appalling crime. The defendant planned to inflict violence on the complainant in his own home, and took someone with him to protect himself if need be, meaning it would be two to one, with the numbers in his favour. The presence of another male added to the level of intimidation involved in the defendant’s actions.
This was a vengeful crime, committed because the complainant had been in a relationship with the defendant’s ex-partner. It was committed against a background of his ongoing intimidating and threatening behaviour, and posturing, such that she terminated the relationship. This coercive and intimidating behaviour is an aggravating factor of the crime.
Having inflicted extensive violence while the complainant was vulnerable and on the ground, the defendant left him bleeding, injured, and alone. I have seen the photographs taken of the complainant that night and it would have been obvious to the defendant that he was in a bad way. The defendant left the complainant in a pool of his own blood and took his mobile phone so he was unable to call an ambulance or police. The defendant did not know the full extent of the complainant’s injuries and, given the number of blows he had inflicted to the complainant’s head, there was potential for a serious injury leading to collapse, and a risk he might have lapsed into loss of consciousness, or even died. He had to walk to get help and, again, could have collapsed on the way. The defendant’s actions were brutal and his response was callous, illustrated by the way in which he told his ex-partner what he had done and laughed about it.
The co-offender, Shane Jackman, has been sentenced for his role in these crimes. He was sentenced on 17 November 2022 to 15 months’ imprisonment, which was wholly suspended. It can be seen that his role, by contrast with the defendant’s, was very limited. As the learned sentencing judge said, his presence allowed the situation to escalate. He is not a like offender in terms of the offence he committed or in terms of his personal circumstances.
I take into account the defendant’s personal circumstances and that, in the lead-up to the crimes, the defendant was not dealing well with the breakup of his relationship with Ms Reynolds. The defendant did not want the relationship to end and he struggled emotionally. He tried to resume the relationship around Christmas but that was not successful. He became depressed and attempted suicide on 30 December 2020. He was taken to the Royal Hobart Hospital on 31 December 2020 but he was not admitted. He was still depressed when he committed these crimes and says he was not thinking clearly at the time. There is no suggestion that his capacity to think clearly or exercise judgment was impaired to the extent that his moral responsibility for the crimes was reduced.
Usually, the defendant would take medication for anxiety and depression but he had stopped for a period of time which correlated with these offences. He has since been prescribed an anti-depressant. He has reflected on the crimes involving the complainant and he is disgusted with his behaviour and determined that it not reoccur.
Eight months later, when on bail for these serious crimes, the defendant committed an assault. During the evening of 3 September 2021, Kaiden Lange, the complainant, aged 19, was at the Pembroke Hotel with his step-father and younger brother having a meal and drinking alcohol in the main bar. The defendant was also present in the main bar. He and the complainant did not know each other but the defendant knew the complainant’s family members as they had played cricket together at the Sorell Cricket Club. The complainant was introduced to the defendant and the group consumed alcohol together and got along well.
As the hotel was closing at approximately 10:00 pm, the defendant invited the complainant and his family members to his house in Pennington Drive, Sorell, where they continued consuming alcohol and socialising. At approximately 3:00 am, the complainant stepped outside to have a cigarette. He got into his father-in-law’s vehicle and revved the engine loudly. The defendant was concerned the noise might disturb his neighbours in the block of units where he lived and he told the complainant to stop and be respectful of others. The complainant continued to rev the engine and ignored the defendant. He then turned the car engine off and went to return inside. The defendant positioned himself in the front door directly in front of the complainant. There was a short conversation about what the complainant had done, and it seemed to the defendant that the complainant did not care about his concerns. This caused the defendant to lose control and, on the spur of the moment, when the complainant again attempted to go inside the house, the defendant punched him forcefully to the jaw.
The complainant left the defendant’s house and walked approximately five minutes to his mother’s house at Weston Hill Road in Sorell. He was in pain and bleeding. Soon after he arrived at his mother’s house, the defendant arrived with the complainant’s family members as the defendant wanted to check on the complainant and return his mobile phone, which the complainant had left at the defendant’s house. The defendant apologised to the complainant and hugged him, and I accept that this was a genuine demonstration of remorse and that his regret was immediate. The defendant could see that the complainant was bleeding and offered to help. After he left, an ambulance was called and the defendant became aware of this and sent messages to the complainant’s brother’s phone to check on the complainant’s welfare.
The complainant was transported by ambulance to the Royal Hobart Hospital. As a result of the punch, he suffered two fractures to his mandible in that the jaw bones on each side of his mouth were broken, requiring the insertion of metal plates and screws to hold his jaw together. He lost one tooth. There is the prospect that he may suffer from long-standing numbness and poor bite.
The impact on the complainant has been significant. His jaw had to be wired shut for nearly three months and he was confined to a liquid diet during this time. He was in constant pain and was unable to communicate with people, or socialise, and experienced depression for months after the attack. He was unable to work for approximately five months so lost wages for that period and used up all his savings. While his jaw has healed, there are lasting consequences. His bottom teeth, which were perfectly straight before the assault, are now damaged and crooked.
The punch inflicted on the complainant was unprovoked and delivered without warning, and it was decisive and crippling. It was a brutal act of violence inflicted upon a young man because the defendant felt annoyed by his actions. An aggravating factor is that it was committed when the defendant was on bail for other crimes of violence. The two incidents of violence raise significant concerns about the defendant’s very poor anger management and the contributing effect of alcohol to his behaviour.
The defendant was arrested on 7 September 2021 and he participated in an interview with police. He told police that the complainant “got up in his face” and raised a fist at him and he believed the complainant was going to hit him, none of which was true. He said he slapped the complainant only and that he used a closed left fist. He could not explain the injuries.
The defendant was remanded in custody on 8 September 2021 and has been in custody since, so for a period of over two years now.
The defendant is now 36 years of age and has some prior convictions for violence, as well as driving offences, including drink driving. He has prior convictions for violence, but not in the same league as these matters. They involve a common assault in 2008, and another in 2011. He has, though, a subsequent conviction of violence involving two charges of rape, committed on 8 September 2021, which gave rise to a sentence of four years’ imprisonment, backdated to 8 September 2021. If it was not for his remand in custody on the matters before the Court today, he would have been eligible to apply for parole on those matters on 7 September this year.
The defendant has an industrious work record, and his most recent employment was as a truck driver. His employer holds him in high regard. He has five children from three significant relationships. He is motivated to undergo relationship and parenting courses to enable him to spend more time with his children and to ultimately gain shared custody of them.
I have a pre-sentence report dated 18 August 2023, regarding the first matter, and an addendum report dated 9 October 2023 for the second matter. In relation to the first matter, the defendant is described by the author as accepting responsibility for his actions and as not trying to justify his behaviour, saying to the author of that report when speaking about the incident that he “hates” himself. Having read the victim impact statement, he showed insight, the author said, into the impact of his crimes, saying, “No one should be scared like that.” He has engaged with a general practitioner, has a mental health care plan, and he has resumed taking his medication.
The author of that report refers to a probation order that was imposed in 2011, of course, some time ago now, and he is described as having been non–compliant with that order. Ultimately, there were breach proceedings and the order was cancelled. It is considered by Community Corrections that the defendant would benefit from structured support on his release from prison in relation to reintegration into the community, mental health, his relationships, and gaining employment.
He expressed remorse in relation to the second matter, as well. At the time of offending, his mental health was well managed but he describes himself as having lost control.
The defendant is to be sentenced for two serious acts of violence. While further imprisonment is inevitable for these crimes, I take into account the defendant has spent the last two years incarcerated. This is relevant in giving consideration to the length of the terms of imprisonment to be imposed on the matters before the Court today. The combined period of time should not be disproportionate to the totality of his offending, noting that he has not experienced prison before the current sentence that he is serving, and there is a real prospect that the period he has already served has proved to be salutary.
The length of each of the sentences I impose today has been moderated. They are not each to be as long as they would have been if they were the only matters being dealt with and if the defendant had not already been in custody for a period of two years. Each sentence reflects his plea of guilty, albeit at a late stage, and his personal circumstances, including his genuine remorse, and motivation and commitment to improve his circumstances and not to find himself in a position where he reacts with violence again in the future. A portion of each sentence will be suspended to provide an incentive for his reform and to give him an opportunity to demonstrate that the lengthy time he will by then have served in gaol has proved to be an effective deterrent.
For the crimes committed in January 2021 involving Mr Glasgow, I record a conviction and I impose a global sentence on all four crimes, of two and a half years’ imprisonment, cumulative to the current sentence he is serving. I suspend 12 months of that sentence on strict conditions. In relation to the balance of 18 months’ imprisonment, which is the effective time he must serve, the defendant is not eligible to apply for parole until he has served one half of that sentence.
For the assault, I record a conviction and I impose a sentence of 13 months’ imprisonment to be served cumulatively with the global sentence just mentioned. I suspend four months of that term on conditions. In relation to the balance of nine months’ imprisonment, the defendant is not to be eligible to apply for parole until he has served half of that sentence.
The conditions of the two periods of suspended imprisonment are as follows:
- The defendant must not commit an offence punishable by imprisonment for a period of two years from the date of release;
- He must submit to the supervision of a probation officer as required for the same period of two years from the date of his release;
- He must report to a probation officer at Community Corrections, 75 Liverpool Street, Hobart, no later than two working days after the date of his release;
- He must comply with the reasonable and lawful directions of a probation officer;
- He must not commit an offence punishable by imprisonment for a period of two years from release from prison;
- He must submit to the supervision of a probation officer as required by the probation officer for the same period of two years from the date of release;
- He must comply with the reasonable and lawful directions, which include that he must not leave or remain outside Tasmania without the permission of a probation officer;
- He must give notice to a probation officer of any change of address or employment before, or within two working days after, the change;
- He must undergo assessment and treatment for drug dependency if directed by a probation officer;
- He must undergo assessment and treatment for alcohol dependency and consumption as directed by a probation officer;
- He must submit to medical, psychological, or psychiatric assessment or treatment as directed by a probation officer.
- He must attend, participate in, and complete the EQUIPS Aggression Program as directed by a probation officer.
Pursuant to s 68(1) of the Sentencing Act, I make a compensation order in favour of Clayton John Glasgow and Kaiden Alan Lange, the terms of which are adjourned sine die for assessment.