STATE OF TASMANIA v BRIAN GRAHAM DEAN GORDON 3 NOVEMBER 2020
COMMENTS ON PASSING SENTENCE BRETT J
Mr Dean Gordon, you have pleaded guilty to one count of assault.
After hearing from prosecuting counsel and your counsel, it was my opinion that a clear dispute existed concerning the factual basis of sentence. However, after discussion, it was accepted by counsel that I should proceed in accordance with the witness testimony, as disclosed in the Crown papers, of your friend Mr Fisher Williams and your then partner, Ms McMahon. Having regard to that testimony, it seems to me that the undisputed factual basis of this sentence is as follows.
The crime was committed at about 2:50 am on 24 March 2019. You and Mr Fisher Williams had had a social night out to celebrate your birthdays. You had consumed a modest amount of alcohol, but you were not intoxicated. You were not out with Ms McMahon that night, but you and she had met coincidentally at a nightclub shortly before the relevant events. After you, your friend and Ms McMahon had left the nightclub, she become engaged in an altercation with the complainant. The complainant had been drinking heavily and was intoxicated. He was walking along the footpath when the three of you emerged from the nightclub.
Mr Fisher Williams’ testimony is that he saw the confrontation between the complainant and Ms McMahon. The complainant was speaking in a raised voice to Ms McMahon, asking her in an aggressive tone if she had a problem. It was at this point that you and Mr Fisher Williams walked towards the complainant. Ms McMahon said, “Get out of my face” to the complainant and tried to step around him, but he blocked her from getting past. You then told him to go away, at which time he said, “What are you going to do little boy”. He then spat on your chest. This provoked you, and you moved towards the complainant as if to assault him. You were held back by Mr Fisher Williams. The complainant continued to taunt you and invited you “to have a go”. He then threw a punch at you which did not connect, and this occurred while you were being restrained by Mr Fisher Williams. He continued to verbally taunt you. You then broke free from your friend, and punched the complainant in the face a number of times. During this, you had hold of each other, but it is clear that you continued to punch the complainant in the head as he fell to the ground. You also punched him twice in the head while he was on the ground.
Mr Fisher Williams’ version is substantially corroborated by Ms McMahon’s statement. This version, as I have already said, is not disputed by the prosecution, and I intend to proceed on that factual basis.
After you had finished punching the complainant, he was assisted by bystanders. You then left the area. According to your counsel, you only did so after seeing that the complainant was receiving attention from others.
The complainant suffered injuries as a result of your assault, which included concussion, swelling and bruising to his face, right shoulder and chest area, small cuts and grazes to his face, a 1.5 cm laceration beneath his chin which required closure with stitches, and a fractured tooth. According to the complainant’s impact statement, the injury to the tooth required substantial and expensive dental and periodontal treatment. He has also suffered other ongoing consequences of the assault, including memory problems and anxiety.
You had just turned 19 years of age at the time of this incident. You are now 20. You have no prior convictions whatsoever. Your father passed away when you were a young child. Your counsel asserts that, after your mother had entered into a new relationship after your father’s death, both you and she were subjected to ongoing family violence at the hands of her partner. It is submitted that this has left you wary of older men, and this was relevant to your reaction to the complainant’s threatening and provocative conduct towards you on the night in question.
Despite the difficulties endured during your childhood, you successfully completed your education to year 11 standard. You are now employed by a builder and hope to pursue the qualifications required to enable you to become a tradesman. I am told that your employer speaks highly of you and that you are an industrious, hard-working and reliable employee. You and Ms McMahon are no longer together, but you have a 2-year-old child together, with whom you have regular contact. Your counsel asserts that you are remorseful for your conduct on this night and its consequences. You have pleaded guilty, although I acknowledge the prosecutor’s submission that it is a very late plea.
It goes without saying that late-night alcohol fuelled violence, particularly around social venues, is a significant contemporary social problem. It is the experience of the Court that such violence is prevalent and often perpetrated by a person who has been drinking, on someone else who has been drinking. The effect of alcohol is that the violence is often unrestrained, and its consequences unpredictable. Such violence often results in serious and sometimes lethal injury. General deterrence of criminal violence perpetrated in such circumstances is clearly an important sentencing consideration.
In this case, I accept that you were not heavily affected by alcohol, but the complainant was, to the point of intoxication. I accept that the complainant’s belligerence towards Ms McMahon and then you, and his provocative conduct including by spitting at you and then after you had reacted to this, swinging his fist at you, constituted actual provocation towards you. However, the mitigatory value of this provocation is limited. Given the extent of the complainant’s intoxication, he was clearly not a serious threat to you, although I accept that your hypervigilance due to your experiences in childhood must also be taken into account. Obviously, you should have walked away. You could easily have done so. It was not reasonably necessary for you to defend yourself at all and, in any event, and on any view of the circumstances, your violent reaction went far beyond what would have constituted reasonable self-defence, had some sort of physical defence been required. Further, it is an aggravating factor that you punched this man to the head, and continued to do so after he had gone to ground. Punching another person to the head is inherently dangerous. The danger is exacerbated if the person is affected by alcohol. Again, in the experience of the Court, and it is probably obvious in any event, such violence has the potential to and often does result in serious injury and sometimes death.
I am satisfied that the objective seriousness of your crime requires imposition of a sentence of imprisonment. Anyone engaging in serious criminal violence, particularly in the context I have described, must realise that severe punishment will be the consequence. However, I accept your counsel’s submission that your conduct on this occasion was out of character and came about only because of the particular circumstances, to which the complainant had made a substantial contribution. It is clear that you are a young man of otherwise good character and that you have enormous potential to live a decent and law-abiding life as a contributing member of society. My intention therefore is to impose the appropriate sentence, but to give you an opportunity to avoid actually serving it in prison. I will do this by wholly suspending the sentence. I will however require, as a condition of suspension, the performance of some community service in order to maintain a punitive effect to the sentence.
Accordingly, the orders I make are as follows:
1 You are convicted of the crime to which you have pleaded guilty.
2 You are sentenced to a term of 8 months’ imprisonment. The whole sentence will be suspended for a period of 30 months on the following conditions:
(a) That you are not to commit another offence punishable by imprisonment during that period.
(b) That you will perform community service for a period of 126 hours. The Court notes that the sections referred to in s 24(5A) of the Sentencing Act apply to this condition. For the purpose of those provisions:
(i) you must report to a probation officer at the office of Community Corrections in Hobart within three clear days of today; and
(ii) the operational period of the order is 30 months.