STATE OF TASMANIA v ALLAN JOHN DUFFY 27 AUGUST 2020
COMMENTS ON PASSING SENTENCE BLOW CJ
Allan John Duffy, you have pleaded guilty to a charge of assault. You committed this crime in July of last year. The man you assaulted was employed by the Derwent Valley Council as a building and compliance officer. He was 67 years old. You went to see him in relation to a matter that was troubling you in relation to your home. You became unhappy with the advice that he gave you. You became agitated. He told you that he would be issuing you with a notice. After you left, he went outside, smoked a cigarette, and began to walk back to enter the Council Chambers. You attacked him from behind. You punched him at least eight times with a clenched fist. This punching continued after he had fallen to the ground and was covering his head with his arms to protect himself. Other people saw what happened and yelled out for you to stop, which you did. Your victim was left bloodied and semi-conscious. He was taken to hospital by ambulance.
The victim of this crime has provided a victim impact statement. I have also been provided with copies of some medical reports which were apparently obtained for the purpose of a workers compensation claim. The victim sustained significant facial injuries. He was a vulnerable individual for a number of reasons. He had a history of retinal tearing and cataracts that had required eye surgery in the two years before the assault. As a result of the assault the vision in his right eye was reduced. He has had to take eye drops to relieve pressure and inflammation of the retina ever since. He may have to continue taking them for life. He may need laser treatment. His nose was broken in a car accident in 1990. As a result of the assault, his nose was bent to the left, and he had problems with the blocking of a nasal passage, which required surgery. He also suffered extensive bruising and swelling to his face.
However the worst consequences of the assault have been psychological. A psychiatrist has diagnosed a mild case of post-traumatic stress disorder. The victim had pre-existing problems with anxiety and depression. He remains so anxious about his safety that he has had to give up work and rarely leaves his home. He had planned to work until he turned 70, but is now unfit for work as a result of his psychological symptoms. Because of his age, he was entitled to weekly payments of workers compensation for only one year after the date of the assault. I was not told whether he had made a claim for damages against you in respect of the assault. If he has not, there remains a strong chance that he will make such a claim, and that it will cost you a great deal of money.
You were 50 years old when you committed this crime and are now 51. I note that you have no significant prior convictions. I have been told that you are single, that you have no children, that you live with your mother at Sorell Creek, and that you ordinarily act as her carer, but that you have been living on your boat at Oyster Cove since the assault in accordance with a bail condition. Because of your lack of prior convictions and your role as your mother’s carer I decided to obtain a home detention assessment report from a probation officer. That report has confirmed information that your counsel gave me to the effect that you were taking steps to obtain professional assistance in relation to mental health difficulties, particularly in relation to anxiety and depression.
There are a number of matters that count in your favour for sentencing purposes. What you did was out of character. You did not flee from the scene, but remained there until you were arrested. You co-operated with the police. You pleaded guilty on your first appearance in this Court, with the result that the victim knew that he would not need to give evidence. Your counsel told me that you were apologetic and remorseful.
However this was vicious attack. It left a vulnerable 67 year old man in a situation where he had to give up work a few years earlier than he had planned to. It has ruined his life. If home detention orders were not available, I would be sending you to prison.
I note that you have spent time in custody on three occasions in relation to this matter. Your time in custody totals 36 days, inclusive of the days that you were taken into custody and the days you were released. I have taken that time into account in fixing the duration of the home detention order. I will also be making an order requiring you to be supervised by a probation officer over the next 12 months. You must be very careful to comply with the orders that I am making today. Otherwise you could very easily find yourself serving a prison sentence instead of a period of home detention.
I convict you and make a home detention order for an operational period of 10 months. The full contents of the order will be set out in a document that will be provided to you. They include conditions, all of which apply for those 10 months, as follows:
- You must not commit an offence punishable by imprisonment.
- You must reside at [address].
- You must be there at all times, except when you are not there for a “relevant reason” specified in s 42AB(4) of the Sentencing Act That includes going somewhere with your probation officer’s permission.
- You must permit a police officer, probation officer or prescribed officer to enter those 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, which may include wearing or carrying an electronic device.
- You must maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections, and be accessible for contact through that device at all times.
- You must not consume alcohol.
- You must submit to a breath test, a urine test, or any other test for the presence of alcohol if directed to do so by a police officer or a Community Corrections officer.
- You must not take any illicit or prohibited substances.
- You must not take any medication containing an opiate, benzodiazepine, bupropion hydrochloride or pseudoephedrine unless you produce to Community Corrections written evidence from your medical professional that you have been prescribed that medication.
- Immediately after leaving Court today you must attend the office of Community Corrections at Glenorchy for induction arrangements relating to this order.
I also make a community correction order, to operate for 12 months from today, with conditions that, during that period, (a) you must submit to the supervision of a probation officer as required by the probation officer; (b) you must undergo assessment and treatment for drug or alcohol dependency if so directed by a probation officer; (c) you must submit to testing for drug use as directed by a probation officer; (d) you must submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.