STATE OF TASMANIA v COHEN JAMES FLANNERY 18 SEPTEMBER 2023
COMMENTS ON PASSING SENTENCE JAGO J
Mr Flannery, you have pleaded guilty to one count of wounding. I am also dealing with some related summary matters being two counts of breach of nationally recognised domestic violence order. The crimes were committed on 30 October 2022 against your then partner. You and the complainant had been in a significant relationship for approximately two years and lived together. In October 2022 the two of you travelled to Melbourne. Whilst there, there was an altercation which resulted in you damaging the complainant’s phone and assaulting him. This incident was reported to Victoria Police and consequently a family violence final intervention order was made. Conditions associated with that order included that you were not to commit family violence against the complainant. The definition of “family violence” under the relevant legislation included that you not commit physical, emotional or psychological abuse. Another condition was that you not intentionally damage any of the complainant’s property or threaten to do so. This domestic violence order was enforceable in Tasmania pursuant to the Domestic Violence Orders (National Recognition) Act 2016.
On 29 October 2022, you and the complainant went to the Pub Rock Diner in Devonport. In the lead up to this outing, the two of you had been experiencing difficulties in your relationship. During the course of the evening both of you consumed a considerable quantity of alcohol. Both of you exchanged words about the status of your relationship. You returned home together at approximately 4.30am on 30 October. Both of you were, by this time, tired and intoxicated. A verbal argument ensued. It became quite intense. The complainant was seated on a bed in the bedroom. You were standing up. You picked up an item off a nearby counter and threw the item at the complainant. It hit him on the chin. It caused a five centimetre laceration, which later had to be closed with stitches. This act amounts to the crime of wounding as well as a breach of the nationally recognised domestic violence order. The complainant left the room. He was attended to by another member of the household who called police. The complainant told you to leave because police were on their way. You did so. Upon police attending, they arranged for an ambulance to convey the complainant to a nearby hospital.
Whilst you were absent from the house you sent the complainant a number of messages. Amongst them was a message suggesting you were going to kill yourself. This amounts to a breach of the nationally recognised domestic violence order by emotionally and psychologically abusing the complainant.
The following morning you returned to the residence. Police attended and you were arrested. You participated in a record of interview. You made admissions to throwing an item at the complainant. You said you could not recall what the item was. You said you and the complainant had been having difficulties in the relationship for a few weeks and an argument had developed. You had picked up whatever was closest to you and thrown it at the complainant. You said you did not mean to hit him or hurt him. You said that after you left the house you felt scared so you sent the text messages. You said you were stressed and overwhelmed with what was occurring.
It is accepted by the State that I sentence the defendant on the basis that the wound was recklessly and not intentionally caused. I accept the defendant is remorseful for his behaviour. He expressed the same to police during the interview. He pleaded guilty at an early stage of proceedings. That plea is consistent with remorse as well as having practical value and demonstrating a preparedness to accept responsibility for his conduct.
By way of prior convictions, the defendant pleaded guilty to the charges of criminal damage to property and unlawful assault that arose from the incident in Victoria. They were adjourned without conviction upon conditions. In Tasmania, the defendant has been dealt with in the Youth Justice Court for matters of dishonesty. He also has some convictions for breaching an interim family violence order and breach of bail conditions relating to the complainant, but committed after the commission of this crime. I am told those charges arose following the defendant’s attendance at the complainant’s home, at the complainant’s invitation, following a funeral.
The defendant was 19 when this crime was committed. Principles relevant to sentencing of young persons require consideration. The relationship the defendant shared with the complainant was his first serious relationship. When difficulties commenced within the relationship he struggled to deal with them and had difficulties in expressing his emotions. He has, in the past, experienced mental health difficulties with anxiety and depression. Since the commission of this crime, he has engaged with mental health professionals. The relationship with the complainant has now come to an end.
I am told the defendant has commenced a new relationship as at April this year. It is described as being a loving and supportive one. It is the defendant’s intention to relocate to Victoria to be closer to his partner in time. He would also like to pursue a career in carpentry. He has recently been working at a fast food restaurant. I am told that during the relationship with the complainant, it was common place for both of them to use alcohol and drugs heavily. This exacerbated the difficulties within the relationship. Since the end of the relationship the defendant has significantly reduced his alcohol use and has ceased illicit drug use. He is motivated to lead a productive lifestyle and put these difficulties behind him.
I accept the defendant’s reaction was an impetuous one, committed in circumstances where the relationship had been experiencing difficulties. The defendant’s capacity to calmly and sensibly deal with the argument on this evening was adversely affected by his alcohol consumption. Whilst I accept the defendant did not intend the object to hit the complainant, throwing it in his direction, at head height, was clearly a very foolish and dangerous thing to do. It had the potential to result in far more serious injury.
Wounding is a serious crime even when committed recklessly, because of the risk of serious injury and the need to deter others from such conduct. Resort to violence to settle grievances is never acceptable. In a family violence context it must be condemned.
I take into account the defendant’s plea of guilty, his remorse, his young age and his personal circumstances generally. The seriousness of the crime warrants a period of imprisonment, but because of his lack of relevant prior convictions, his age and his prospects for rehabilitation, I have determined it is appropriate to wholly suspend the period of imprisonment I intend to impose. I also consider it appropriate to impose a Community Corrections Order to provide some support and guidance going forward.
I make the following orders. Mr Flannery, you are convicted of the crime of wounding and the two counts of breach of nationally recognised domestic violence order. In respect to the two summary charges, I make no further order. In respect to the crime of wounding, you are sentenced to six months’ imprisonment. The whole of that sentence will be suspended for a period of two years on the condition that you are not to commit another offence punishable by imprisonment during that period.
I also make a Community Corrections Order requiring you to be subject to the supervision of a probation officer for a period of 12 months from today’s date. The conditions set out in s 24 of the Sentencing Act will apply to this order. These include that you must report to a probation officer at Community Corrections Devonport by close of business tomorrow. In addition to the core conditions, the order shall also include the following special conditions:
- you must, during the operational period of the order, attend any educational or 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 explain to you Mr Flannery that if you do commit an offence punishable by imprisonment, and you should be aware that the vast majority of offences on the Statute books are offences punishable by imprisonment, you can be brought back to the Court and an application made that you serve the suspended period of imprisonment. The law is that a judge must activate that sentence unless it is unjust.