STATE OF TASMANIA v KERRY LEIGH FRENCH
and DANIELLE JOY COPE 7 FEBRUARY 2023
COMMENTS ON PASSING SENTENCE JAGO J
Kerry Leigh French, you have been found guilty by a jury of nine counts of assault contrary to s184 of the Criminal Code. Four of those counts relate to events which occurred on 6 August 2018, one count relates to an incident which occurred on 29 October 2018 and four counts relate to events which occurred on 3 December 2018.
Danielle Joy Cope, you have been found guilty by a jury of one count of assault, relating to the events on 3 December 2018.
Although it is my responsibility to make findings of fact for sentencing purposes, the facts, for the most part, follow from the verdict. The jury must have been satisfied beyond reasonable doubt of the truthfulness and reliability of the evidence of the primary complainant, Ash Reeve.
Mr French, you knew Ash Reeve. At one point he owed you some money. It is unclear on the evidence how much was involved, for how long any such monies may have been owed or whether the debt remained outstanding at the relevant points in time. I will simply sentence on the basis that at the time of the respective assaults your perception, at the very least, was that Mr Reeve continued to owe you some money. The assaults you perpetrated upon him were for the purpose, I am satisfied, of encouraging his repayment of the debt and for punishing him for non-repayment of the debt.
The first assault occurred at a place known as Killlynaught at Boat Harbour on 6 August 2018. Mr Reeve had been taken to the Killynaught area by a Mr Kane Hanson. The purpose of the trip was to sell drugs to a female. Mr Hanson, who was driving the motor vehicle, parked the car. Whilst Mr Hanson and Mr Reeve remained seated in the car, you and another unknown male ran from a darkened area towards the vehicle. I am satisfied both of you were carrying weapons. You had some form of wooden handle and your accomplice a set of knuckle dusters. You forced entry to the motor vehicle. I am satisfied it was your accomplice who went to the driver’s side and physically assaulted Mr Hanson by punching him to the face whilst wearing a pair of knuckle dusters. He punched him approximately five to six times. He then pulled him from the car. You are criminally responsible for the actions of your accomplice as you were clearly a party to his conduct. Whilst your accomplice was dealing with Mr Hanson, you went to the passenger side where Mr Reeve was seated. You forced the window down, causing it to break. You punched Mr Reeve to the head and face area and then dragged him from the motor vehicle. You then proceeded to punch and kick him once he was outside of the vehicle to both the head and the body. You struck him with the wooden handle and then you and your accomplice dragged him to another motor vehicle on the opposite side of the road and forced him into the back seat of that vehicle. Mr Reeve was physically restrained inside the vehicle. You and your accomplice drove him to a shed in the Montumana area. By doing so, you deprived him of his liberty.
Upon arrival at the shed, you and your accomplice dragged Mr Reeve from the motor vehicle and threw him to the ground. You both proceeded to kick him repeatedly to the head and body and you also punched him. Throughout the course of this vicious assault, you repeatedly asked Mr Reeve for the money you believed he owed you.
Once you had finished assaulting Mr Reeve, you took his clothes from him and left him in the shed, wearing only underpants. Mr Reeve had little idea where he was. He walked along a roadway in a remote rural area to locate a house and obtain assistance. Fortunately he was able to do so. The occupants of that residence subsequently described Mr Reeve’s appearance as “looking like he had been bashed”. They called police and Mr Reeve was taken to hospital. He had a conjunctival haemorrhage in the left eye which caused bleeding between the eye ball and the membrane covering the front of the eye socket. He had swelling and bruising over the left frontal bone of his skull. He had swelling to his nose and had abrasions on both of his legs. I have viewed photographs of the injuries.
Following the assault on 6 August, Mr Hanson also attended at the North West Regional Hospital. He had a laceration to the left eyebrow, an abrasion to the left side of the scalp, a laceration to the left ear, swelling around the left eye and swelling around the frontal bone area between the eyebrow and the hairline. There was also swelling on the outer side of the face, his left eye socket and the left hand side of his face generally. The laceration over the eyebrow had to be closed with tissue glue. The injuries sustained by both Mr Reeve and Mr Hanson on 6 August resolved in time without further medical intervention.
The next assault that Mr French, committed upon Mr Reeve was on 29 October 2018. Both Mr French and Mr Reeve were at the Magistrates Court in Burnie. At one point, the two of them came to be on the front steps outside of the court house. Again, Mr French demanded money from Mr Reeve. He then grabbed hold of him by the front of his shirt and pulled him towards him. I have seen the video footage of the incident. It was a minor short-lived assault, which caused no injury. I note however the incident occurred in a public place when a number of people were present.
The next series of assaults occurred on 3 December 2018. Ms Cope, who had known Mr Reeve for several years, contacted him to arrange to purchase some drugs. The purported purchase, I am satisfied, was all part of a plan for Ms Cope to take Mr Reeve to Somerset and meet Mr French and another male for the purpose of an assault being perpetrated upon Mr Reeve, again because of the non-payment of the alleged debt. I am satisfied Ms Cope knew that the reason Mr Reeve was being taken to Somerset was to be assaulted. There is not, however, an evidentiary basis from which I could be satisfied that she knew the extent of the assault that would ultimately be perpetrated upon Mr Reeve. Ms Cope collected Mr Reeve and drove him to the Murchison Highway, adjacent to the Cam River Bridge in Somerset. She pulled her car up in this area. Mr French and another unidentified male ran towards the motor vehicle. Mr Reeve saw them coming and exited the vehicle believing he would have a better chance of defending himself from outside of the vehicle. Mr French and his accomplice began to punch Mr Reeve to the head and body. At one point, Mr French’s accomplice struck Mr Reeve to the back of the head. Mr Reeve fell to the ground and both Mr French and his accomplice proceeded to punch and kick him whilst he was on the ground.
Mr Reeve was then dragged to a motor vehicle and placed into the rear of that vehicle. Mr French drove the motor vehicle whilst his accomplice sat in the rear seat with Mr Reeve. Mr Reeve was driven to a remote forestry area near Oldina. On route, Mr Reeve was punched numerous times by Mr French’s accomplice. Mr Reeve estimated in his evidence that he was punched about 50 times during the drive. Whilst I am unable to find with precision how many times Mr Reeve was punched, I accept his evidence generally. Mr French is criminally responsible for the infliction of such punches. He was clearly a party to the criminal offending. However, during the drive, Mr French’s accomplice also bent and dislocated a number of fingers on both of Mr Reeve’s hands. Mr French was charged with committing an unlawful act intended to cause bodily harm, the damage to the fingers being the alleged resultant bodily harm. He was found not guilty by the jury of that charge but guilty of the alternate crime of assault. Consistent with that verdict, I am satisfied that whilst Mr French was well aware an assault was to be committed on route, his knowledge did not extend to there being an intention on behalf of his associate to maim, disfigure or to cause grievous bodily harm. Mr French is not to be sentenced on the basis he is criminally responsible for the injury to the fingers of Mr Reeve.
By the time Mr Reeve was taken out of the car at Oldina, he described himself as feeling “punch drunk”. He was having difficulty in standing upright, his vision was impaired and he was not able to think clearly. Mr French and his accomplice demanded that Mr Reeve stand still. When he was unable to do so, they repeatedly kicked and punched him. During the assault at Oldina, Mr French was demanding money from Mr Reeve. Again, at the conclusion of the physical torment, Mr French and his accomplice removed Mr Reeve’s clothing leaving him only in his underpants.
Mr Reeve was abandoned in a remote, rural area in Oldina. He wandered around for a period of time, walking through bush and along roadways before being seen by a lady who was driving to work. She offered him some assistance and he was taken to a friend’s house in Wynyard. Mr Reeve was described by that friend as being “delirious and a mess” when he arrived. From there, Mr Reeve was taken to hospital.
He presented at hospital with numerous injuries to his head and face including bruising and swelling to the right lower outer cheek area, bruising and swelling to the left cheek region, significant bruising and swelling around both eyes, swelling and bruising to the nose and left upper lip, multiple cuts and abrasions to his hands, both knees and both legs. He also had a deformity to the joint of his left index finger and suspicion of a tendon injury to his right, third finger, but as I have already commented that Mr French does not bear criminal responsibility for the injuries to the fingers. A CT scan revealed Mr Reeve had a depressed fracture to the anterior wall of both maxillary sinuses, an inward angulation of the left cheek bone and deviation of the nasal septum. Surgery for the facial bone fractures was recommended but was unable to occur immediately because of the presence of the significant swelling.
Mr Reeve was the victim of a number of very serious assaults. The assaults on 6 August and 3 December in particular, were brutal and relentless. They involved the infliction of many blows and included Mr Reeve being deprived of his liberty and abandoned without clothing in remote, rural areas whilst significantly injured. They were cruel and callous attacks in my view. Leaving him alone, unclothed in remote areas added to the fear and humiliation Mr Reeve must have experienced. I consider those acts to be aggravating features. I have read and considered a Victim Impact Statement from Mr Reeve. He has experienced the type of effect one would expect when the victim of such cruel behaviour. He has been forced to leave Tasmania and leave behind his family and friends because of his ongoing concern for his safety. He continues to experience marked psychological trauma and physical impairment.
I have not received a Victim Impact Statement from Mr Hanson but I observed him give evidence throughout the trial. I have no doubt, he too, found the experience on 6 August a most traumatic one.
In addition to sentencing Mr French for the assaults I have outlined, I also have before me an application to activate a suspended period of imprisonment imposed by Wood J on 3 December 2018, together with an application to cancel the Community Correction Order, imposed the same day. On 3 December 2018, Mr French was sentenced following his plea of guilty to one count of receiving stolen property. He was sentenced to a period of four months’ imprisonment, which was wholly suspended on condition that he commit no offences punishable by imprisonment for a period of 18 months. Later that very same day, Mr French perpetrated the violence I have described upon Mr Reeve. Clearly, his attendance at the Supreme Court and the comments of Wood J had no positive effect, at that point in time, in terms of encouraging him to become a law abiding member of our community.
By way of further prior criminal history, Mr French also received a suspended term of imprisonment in January 2018 for a number of driving offences and offences contrary to the Firearms Act. In 2019, he was required to serve that period of imprisonment when he committed further driving offences. Generally, his record of prior convictions consists of driving offences, particularly offences under the Road Safety (Alcohol and Drugs) Act, offences under the Misuse of Drugs Act and Firearms Act, and some dishonesty matters. He does not have a poor prior criminal history for matters of violence.
I am told in more recent times, Mr French has been making a concerted effort to improve his behaviour and prospects. There has been some offending contrary to the Road Safety (Alcohol and Drugs) Act, and the Bail Act since these crimes, but otherwise he has been making a concerted effort to stay out of trouble. He was raised on the North West Coast and following the completion of high school, undertook a traineeship in forestry work. He then travelled to Western Australia and commenced work as a driller and also completed an apprenticeship as a heavy diesel technician. It was whilst he was in Western Australia that he was introduced to illicit drugs. He committed offences in Western Australia relevant to his drug use. On 30 September 2019 he was convicted and sentenced for the crimes of possessing a prohibited drug with intent to sell or supply. He was sentenced to imprisonment for that offending.
At some point, following his release from prison in Western Australia, he returned to Tasmania but his difficulties with illicit drug use continued. I am told he was using methyl amphetamine heavily at the time of this offending behaviour and associating with others who were doing likewise. In more recent times, however, it seems he has changed his life markedly. He commenced a new relationship in August 2020. It is described as a supportive and positive relationship and the couple are expecting their first child in April 2023. Mr French has relocated with his partner to Strahan. He has full time employment with Huon Aquaculture. He has, in the main, addressed his drug addiction following some counselling he undertook in 2021. There has been the occasional re-lapse but I am told he is largely abstinent. At his current place of employment, he is subject to random drug testing. He has never returned a positive test. I have read and considered a character reference from his manager at Huon Aquaculture. He is obviously well regarded and considered a valuable asset at his place of employment. A number of other character references were also tendered on Mr French’s behalf and I have had regard to same. There has been considerable delay in this matter being listed for trial, largely as a consequence of the COVID requirements and limitations associated with the size of the dock in the Burnie Supreme Court. In terms of sentencing, that delay, in my view, is a neutral factor. It certainly does not count in Mr French’s favour. He could have pleaded guilty and accepted responsibility for his actions at any point. The delay has, however, allowed Mr French to demonstrate he is capable of leading a lawful and productive life and such matters are relevant to the sentencing process.
As to Ms Cope, she has no prior convictions for matters of violence. She has prior convictions under the Misuse of Drugs Act and the Road Safety (Alcohol and Drugs) Act. I do not consider those prior convictions to be particularly weighty in the sentencing process. She is 37 years of age. She has three children, for whom she is the full time carer. She shares a close relationship with her mother, stepfather and siblings. She has previously worked in the hospitality industry.
Ms Cope was, at one point, in a relationship with Mr French. During this time, she too developed an addiction to methyl amphetamine. She has also been diagnosed with bi-polar. She is now medicated for this and her mental health is stable. Her involvement in this offending came about at a time when she was using methyl amphetamine heavily. She has now addressed her addiction. She has undertaken counselling and obtained assistance from YFCC. She has relocated to live with her family in Queenstown. Her family remain supportive of her and assist her with the care of her children. Obviously, Ms Cope’s role in the offending is far less serious than that of Mr French. Nevertheless, what she agreed to do involved a serious criminal act, and a breach of trust given her prior friendship with Mr Reeve. I am satisfied that Ms Cope knew Mr Reeve was to be assaulted and that it was associated with the payment of a debt. Agreeing to assist with inflicting violence in such circumstances is a matter that deserves condemnation. As I have already noted, however, there is not an evidentiary basis from which I could conclude that Ms Cope had any appreciation as to the extent of the violence that was to be inflicted.
I am satisfied that as far as Ms Cope is concerned, given her level of involvement, lack of relevant prior convictions and prospects for rehabilitation, I can adequately address all sentencing aims by the imposition of a wholly suspended period of imprisonment. The order I make in respect to Ms Cope is that she is convicted and sentenced to five months’ imprisonment, the execution of which will be wholly suspended for a period of two years on condition that she not commit any offence punishable by imprisonment. I decline to make any order pursuant to s55 of the Sentencing Act.
The sentencing of Mr French is a far more complicated process. It necessitates the balancing of many considerations, which do not necessarily sit comfortably together. On the one hand, his criminal behaviour was, quite frankly, appalling. I am satisfied he inflicted violence in order to compel Mr Reeve to make payment of monies, or punish him and make clear to him the consequence for not complying with his earlier demands for payment. The community would rightfully demand that such conduct be strongly condemned and punished. Mr French, as I have said, your behaviour was cruel, brutal, degrading and persistent. You caused Mr Reeve significant physical and psychological harm. Principles of general deterrence, denunciation, vindication and punishment have much work to do in the sentencing exercise. The sentence the Court imposes must deter others from engaging in behaviour such as this by signalling the fact that violence of this sort, committed for this reason, will be met with a harsh response.
On the other hand, I cannot ignore the very significant changes you have made in your life. As noted, you have relocated to Strahan. You have commenced a new seemingly positive relationship. You are soon to become a father. You are abstaining from the use of illicit drugs. It seems you are settled and well regarded in your position of employment. Your employment encourages you to remain committed to your abstinence because of the random drug tests associated with it. Whilst there is no question a strong sentencing response is required, in my view, these factors militate in favour of imposing a suite of sentences which will hopefully operate to encourage your ongoing rehabilitation; not only for your betterment, but the benefit of the community at large.
I had you assessed as to your suitability for a home detention order. You are suitable for such an order. The advantage of a home detention order is that it enables you to continue to participate in your employment. In King v Webb the Court of Criminal Appeal recognised that home detention orders have a very real general deterrent effect. Home detention orders also have a strong punitive element. Such orders severely limit your freedom and you will be subject to regular supervision and screening for illicit drug use upon such an order.
I have decided that in the circumstances of this case, I am going to adopt an individualised sentencing approach. Normally, for offending of this nature, I would impose a global sentence. But here, I am going to impose separate sentencing orders across some of the crimes to enable the Court to pass a combination of sentences that will satisfy and appropriately address all relevant sentencing considerations, and endeavour to balance the need for a strong sentencing response given the seriousness nature of the offending, with the need to recognise the significant changes you have made in your life and your prospects for long-term rehabilitation. In my view, such an approach is justified given the discreet episodes of offending, and the fact the level of criminality associated with some of the offending, for example the incident on 29 October, is markedly different. In taking this approach, I bear in mind principles of totality.
In respect to Mr French, I make the following orders: You are convicted of all matters upon which you were found guilty. In respect to Count 6 on the Indictment, the assault committed on 29 October 2018, I impose no further penalty. In respect to Counts 1, 2, 3 and 4 on the Indictment, being the crimes committed on 6 August, you are sentenced to six months’ imprisonment, backdated to commence on 12 October 2022 to take into account time already spent in custody in respect to this offending.
In respect to Counts 7, 8. 9 and 10 on the Indictment, being the crimes committed on 3 December 2018, I impose a Home Detention Order with an operative period of 15 months, commencing on the date of your release from custody. During that period, you will be subject to all of the Core conditions and the following special conditions, which will apply for the whole of the operational period:
- You must not commit an offence punishable by imprisonment.
- You must reside at [address redacted].
- You must be there at all times, except when you are not there for a “relevant reason” as specified in s 42AB ss 4 of the Sentencing Act 1997, this includes going somewhere, including going to your employment, with your probation officer’s permission.
- You must permit a probation officer, a police officer, or other prescribed officer to enter the premises.
- You must permit a police officer to conduct a search of the premises, conduct a frisk search of you and take a sample of any substance found on the premises or on your person.
- You must submit to electronic monitoring, including the wearing or carrying of an electronic monitoring device.
- You must not remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
- You must not allow anyone else to remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
- You must comply with all reasonable and lawful directions given to you in relation to the electronic monitoring device, including directions relating to the installation, attachment or operation of the device, or system used for the purpose of electronic monitoring, if those directions are given to you by a police officer, a probation officer, another prescribed officer or any other person whose functions involve the installation or operation of a device or system used for the purpose of electronic monitoring.
- You must maintain in operating condition an active mobile phone service, provide those contact details to Community Corrections and be accessible for contact through that device at all times.
- You must not take any illicit or prohibited substances.
- You must not take any medication containing an opiate, benzodiazepine, buprenorphine, hydrochloride or pseudoephedrine unless you provide written evidence from your medical practitioner that you have been prescribed that medication.
- You must not during the operational period of the order consume alcohol and you must, if directed to do so by a police officer, or community corrections officer, submit to a breath test, urine test or other test for the presence of alcohol.
- You must submit to the supervision of a Community Corrections Officer as and when required by that Officer.
I order that you must attend the Community Corrections office, Reece House, Burnie within two working days of your release from custody for the fitting of the electronic monitoring device and induction in respect to the Home Detention Order.
I active the four month period of imprisonment imposed but suspended on 3 December 2018 and order that you serve it. That period of imprisonment will also be backdated to commence on 12 October 2022 and will be served concurrently with the period of imprisonment imposed on counts 1 through 4 on the indictment.
I cancel the Community Corrections Order but make no further order in respect to that application.
I decline to make an order pursuant to s55 of the Sentencing Act. In my view, the imposition of the Home Detention Order will subject Mr French to sufficient restrictions.
I make a forfeiture order in respect to the knuckledusters.