COMMENTS ON PASSING SENTENCE                                                         JAGO J

Mr Elkin, you have pleaded guilty to one count of Criminal Code assault.  On 18 December 2020, you and another viciously assaulted the complainant in the streets of Devonport.  You and your associate had been at a nightclub in Devonport.  Both of you had consumed a considerable quantity of alcohol.  Apparently the complainant was also there, although he does not recall that.  His recall is limited to a memory of leaving a different licensed premises and walking to obtain something to eat.  His next recall is waking up in hospital.  In any event, it seems the complainant and your associate were involved in some sort of verbal exchange at the nightclub.  All of you left at about the same time. Shortly after, you and your associate observed the complainant in Rooke Street in Devonport, near a food outlet.  Both of you approached the complainant and began speaking with him.  The interaction was captured on CCTV cameras, which operate throughout the Devonport CBD.  As the footage has been described to me, it depicts the complainant putting his hand out towards your associate.  He then endeavoured to walk away.  You and your associate began to assault him.  The complainant was pinned up against the shop wall and both of you were punching him to the head and body area.  It was a two against one attack.  The complainant went to the ground.  Again, both you and your associate continued to inflict blows upon him whilst he was on the ground.  You submit through your Counsel, that it was your associate who inflicted the main of the blows.  For sentencing purposes, it matters not who inflicted what blow.  You bear criminal responsibility for all of the blows inflicted upon the complainant either as a principal or an abettor.  This was, in my view very much a joint attack, which adds to its seriousness.  Nearby, there was a group of three other men.  One of them intervened to break up the altercation.  They dragged you and your associate away from the complainant.  When asked to describe what they had observed by police, one of that group said that he had walked past during the initial exchange and there did not appear to be any issues, but then you and your associate suddenly began assaulting the complainant.  He described the two of you as “laying into him” even after the complainant was on the ground.

When police arrived the complainant was laying on the ground, badly injured and bleeding.  You and your associate were still in the area.  Police spoke to you.  Both of you claimed you were acting in self-defence.  I reject this proposition entirely.  There is nothing in the description of what the CCTV footage depicts, nor the account given by the nearby witnesses to support your claim of self-defence.  I am satisfied that your violence was perpetrated because of your state of intoxication and a gross over reaction to a verbal exchange.  There was no justification for your initial attack on the complainant, nor for the continuation of the physical exchange, particularly once the complainant had fallen to the ground.

The complainant was left with serious injuries.  As a consequence of the assault, he received a fracture to both the left and right side of his jaw and a broken tooth.  It was necessary for plates and screws to be inserted into his jaw because of the injury.  The complainant has been left with residual nerve damage in his chin.  I have read the complainant’s impact statement.  He suffered pain and discomfort following the assault.  The surgery was difficult for him.  The assault exacerbated a previous condition of Post-Traumatic Stress Disorder arising from his time as a serviceman.  The complainant describes the ongoing emotional and psychological impact of this crime.  Everything he describes is consistent with the nature of the attack and the resulting injuries.

You are now 27 years of age.  You were 24 when the crime was committed.  You have a number of prior convictions, although they are relatively limited in terms of matters of violence.  You have a very poor history of committing driving offences, including offences under the Road Safety (Alcohol and Drugs) Act, driving whilst disqualified and evading police.  You also have convictions for breaching an interim family violence order, destroy property and two counts of common assault, committed in a family violence context.  In April 2021, so obviously after the commission of this crime, you were sentenced to a nine month home detention order.  That was for various driving offences, as well as offences involving breach of Police Family Violence Order, and the two counts of common assault I have referenced.  The terms of the home detention order were varied and its length extended in September 2021 following breach action.  It seems after this you became more compliant and ultimately completed the home detention order.  Since that time you have not re-offended.  Because the home detention order did appear, eventually at least, to have a positive effect on your behaviour, I agreed to have you assessed as to your suitability for a home detention order in respect to this crime.  During the assessment process you withdrew your consent for such an order.  I also note what you said to the author of that report about you role in this offending.  You sought to minimise your involvement which is indicative, in my view, of a lack of insight into the seriousness of your behaviour and also a lack of remorse.  I nevertheless take into account the plea of guilty to the extent that it has utilitarian benefit.

Much of your previous offending appears to be related to excessive alcohol consumption.  The excessive use of alcohol has been an ongoing difficulty for you.  I am told that since the time of the home detention order you have made a concerted effort to curb the amount of alcohol you consume.  You recognise that excessive alcohol consumption led to the commission of this crime.  The home detention report does suggest that you have been more conscientious in recent times about your alcohol consumption, particularly in public places.

I regard this assault as a serious example of drunken street violence.  You and your associate confronted this man when he was simply going about his business.  Whilst there may have been a mutual verbal exchange, you elevated the confrontation to a physical attack without any warning.  As I have said, this was a two on one attack.  The complainant had little opportunity to defend himself.  Violence of this nature is of considerable concern to the community.  Too often, mindless violence, such as this, results in death or serious injury.  On this occasion, although the injuries actually sustained by the complainant were severe enough, the consequences of your conduct could have been far worse.  Striking someone to the face and head area is inherently dangerous.  Even a single punch can, and often does, lead to life changing injury or death.   Of course, you are not to be sentenced on the basis that you intended, or indeed, foresaw the specific consequences of your attack but, physical injury is almost always the consequence of blows such as those delivered by you and your associate.

General deterrence is a significant sentencing consideration and its importance necessitates the imposition of a sentence of imprisonment.  The only question for me is whether I should give you an opportunity to avoid actually serving that sentence by suspending it.  Because this crime occurred nearly three years ago, and you have since been subject to a home detention order, which does appear to have encouraged you to reform your conduct and address your excessive alcohol consumption, I have determined that I should give you such an opportunity.  You need to be very aware, however, Mr Elkin, that this was a finely balanced determination and if you fail to comply with the conditions of suspension, including by committing an offence punishable by imprisonment during the period of suspension, and that includes most offences on the Statute books, then it is highly likely indeed, almost inevitable, that you will be required to serve the sentence in prison.  Further, I intend to impose a Community Corrections Order requiring you to perform some community service so there is some immediate punishment, and also to participate in probation to assist you with your ongoing rehabilitative endeavours.

The orders I make are as follows:

  1. You are convicted of the crime of assault.
  2. You are sentenced to a term of 12 months’ imprisonment. The whole of that sentence will be suspended for a period of two years on the following three conditions:
  • (i) You are not to commit another offence punishable by imprisonment during that period; and
  • (ii) You will perform community service for a period of 100 hours. The operational period of that order will be 24 months; and

(iii)     You will be subject to the supervision of a probation officer for a period of 12 months from today.

The Court notes that s 24(5A) of the Sentencing Act apply to the community correction order. In addition to the core conditions provided for by the Sentencing Act, the order shall also include the following special conditions:

  • you must, during the operational period of the order, attend educational and other programs as directed by the court or a probation officer;
  • you must submit to the supervision of a probation officer as required by the probation officer;
  • you must undergo assessment and treatment for drug dependency as directed by a probation officer,
  • you must submit to testing for drug use as directed by a probation officer;
  • you must undergo assessment and treatment for alcohol dependency as directed by a probation officer;
  • you must submit to testing for alcohol use as directed by a probation officer; and
  • you must submit to medical, psychological or psychiatric assessment or treatment as directed by a probation

I direct you must report to Community Corrections, Devonport by close of business today.