STATE OF TASMANIA v ASHTON MITCHELL GILL 24 SEPTEMBER 2019
and DWIGHT STANLEY MURTAGH
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendants, Ashton Mitchell Gill aged 27, and Dwight Stanley Murtagh aged 26, have pleaded guilty to causing grievous bodily harm contrary to s 172 of the Criminal Code.
On 25 October 2017, they were inmates at Risdon Prison. So too was the complainant, Phillip Mark Dare, now aged 37.
Both defendants were being housed in a maximum security section of the prison known as Derwent Bravo unit. Mr Dare had only been moved into that unit shortly after 3pm that afternoon.
Just after 3.45pm all three inmates were in the exercise yard. The defendants were standing together near a punching bag, while Mr Dare was walking laps of the yard with other inmates.
As the complainant turned at the end of the yard nearest the punching bag and commenced walking back in the other direction, the defendant Gill suddenly walked towards him and punched him to the left side of his face. The defendant Gill then continued to punch the complainant to the upper back and/or head area, as well as pushing the complainant who turned his back and moved towards the rear wall of the exercise yard.
The defendant Murtagh immediately followed, catching up to the defendant Gill and the complainant at the rear of the yard and immediately kneeing the complainant in the head while he was bent over as the defendant Gill was punching him to the back of his head and back. The complainant collapsed to the ground whereupon the defendant Gill continued to kick him to his upper torso at least three times, and then stomped on his upper torso and/or face area twice. He then kicked him again to the upper torso before punching him another four times to the head. Concurrently, the defendant Murtagh kicked the complainant to his head twice before punching him twice to the head.
Following this the complainant lay unconscious on the ground, bleeding heavily from his face. Both defendants walked away from him, and resumed walking laps of the exercise yard with other inmates.
The complainant was left lying on the ground for several minutes during which time he regained consciousness and managed to crawl slowly across the yard. As he did this, other inmates, including both defendants, failed to offer any assistance to him, walking around him as they continued to do laps of the yard. Eventually he managed to stand, by which time Correction Officers had become aware of the incident and enter the yard to assist.
The complainant suffered serious injuries, including a facial laceration, swelling and bruising around the left eye with small amounts of bleeding into the whites of both eyes indicating damage to the actual eye, and numbness over the left cheek. A CT scan disclosed moderately displaced fractures to nasal bones and two walls of his left eye socket. On 16 November 2017 he underwent surgery for repair of the left orbital fractures with a titanium mesh plate. The nasal bones were also manipulated back into place and plastered at this time. Post-operative follow-up showed that the orbital plate was not ideally positioned and the complainant was having difficulty with eye movements and drooping of the lower left eyelid. On 23 November 2017 the complainant underwent a second operation to re-position the plate and repair the drooping lid. The complainant has been left with some loss of peripheral vision in the left eye, as well as numbness of his left cheek and upper lip.
The defendant Gill’s record of prior convictions includes an assault in 2009 for which he was sentenced to five months’ detention, the bulk of which was suspended on conditions for 12 months. He was brought back to be again dealt with for this offence in July 2009, and was sentenced to one month’s detention. At the same time he was dealt with for a number of offences of dishonesty, contravention of court orders including bail, and aggravated burglary. He seems to have again been dealt with for the same assault in March 2010 for which he was sentenced to 10 weeks’ detention. On that occasion again he was dealt with for a miscellany of offences. This offending continued, mostly for dishonesty, and on 27 April 2011 on a variety of offences, he was sentenced to nine months’ imprisonment, six months of which were suspended on condition. On 22 November 2011 he was sentenced to 18 months’ imprisonment for a lesser role in an armed home invasion. On 14 March 2013 he was sentenced to 16 months’ imprisonment, cumulative to all other sentences for as a prisoner with a handmade “shiv” joining in threatening, assaulting and capturing four correctional officers.
He has another prior conviction for assault on 20 April 2016. At the time of this crime, he was on remand for offences of dishonesty for which he was subsequently sentenced.
His release date was 13 March this year and has since that time been remanded in custody on that matter alone.
The defendant Murtagh also has a significant criminal history, particularly for crimes and offences of dishonesty. In respect of his history for violence, a charge of assault in 2006 resulted only in an informal. On 16 November 2010 he was convicted of two counts of common assault when he was still a youth and was later re-sentenced in relation to that matter and required to serve the sentence of eight months’ detention.
On 13 September 2011 he was again convicted of assault, again as a youth. His first relevant conviction as an adult was on 8 May 2012 for two counts of common assault. On 26 November 2014 he was convicted of aggravated burglary and aggravated robbery and was sentenced to 2 years 3 months’ imprisonment. That was a crime committed in company with the complainant.
On 28 November 2017 he was sentenced to 4 months’ imprisonment for breaching a family violence order and common assault.
At the time of this crime, he was also on remand. He was subsequently sentenced and his release date was 8 June 2019 and has been on remand for this crime since that time.
The defendant Gill is one of seven children born to the union of his parents. His parents separated when he was an infant and he has had very little to do with his biological father. He suffered physical abuse at the hands of his step father on a regular basis. He subsequently left home at the age of 13 and spent his formative years in and out of foster homes only to experience similar instances of physical and also sexual abuse. Following this, he began a life of transiency, living on the streets or couch surfing with friends. His mother and stepfather visited him in prison for the first time recently, for his birthday, and he envisages that he will be able to truly reconnect with his mother when he manages to “sort his life out”.
He identifies methamphetamine as his principal drug of concern. He commenced using Ice at 14 years of age after leaving the family home, which coincided with the commencement of his offending history. He would use with friends on the weekend and there followed a gradual increase until recent years. In recent years, he has used various different substances on a daily basis and “as much as he possibly can”. Morphine and Benzodiazepines have been equally as problematic for him and when discussing the use of any other illicit substances he states “I’ve used everything, including Heroin.”
Similarly, he commenced smoking cannabis at 14 years of age and since commencing the use of the substance he has smoked it “all day every day”. He generally uses cannabis and methamphetamine together, and considered both substances would be equally as difficult to give up. He has continued to struggle greatly with his addictions whilst incarcerated.
The probation officer preparing a report for me conducted checks with Dr Chris Wake from prisoner services and Alcohol and Drug Services (ADS) who identified that the defendant would very much benefit from the Suboxone opioid pharmacotherapy program however, he is currently waitlisted.
Options for residential rehabilitation were discussed with the defendant on his release of which he expressed interest in pursuing. A referral to the Salvation Army Bridge Program and Velocity Transformations, Pathways have been initiated however, neither of those initial assessments/interviews will occur prior to sentencing.
The defendant explains that there is a history between them. He states that he now speaks to the complainant however, he sees no future in which they could completely resolve their differences. When taking into consideration the entirety of his story, he believes he was not “in the wrong” and does not consider that he should have done anything differently.
Since 2011, the defendant has been incarcerated each year, totalling 11 custodial episodes to date. During his current period of incarceration, the defendant has accumulated numerous incident reports including, but not limited to; assaults on other inmates, possession of unauthorised objects, possession of Suboxone, using language or behaving in a manner that is indecent or insulting and failing to obey an order. Previous periods of incarceration have evidenced similar patterns of behaviour including a serious hostage situation involving prison staff.
Upon interview recently by the probation officer preparing a pre-sentence report for me, the defendant said that he had exhibited good behaviour since May 2019. He said “I was an absolute idiot” and “I’ve made changes, I broke up a fight the other day”. He advised that he no longer wishes to be involved in the type of behaviour he normally exhibits however, he acknowledged he has considerable work ahead, given his longstanding propensity to make poor impulse decisions.
He expressed significant motivation to attempt a further period of supervised probation if afforded the opportunity and recognised his necessity to seek support if he is to pursue a life of abstinence and pro social engagement. He continually stresses his desire to commence the Suboxone program and expresses a willingness to address his offending behaviour by engaging in relevant programs and interventions.
The defendant Murtagh is one of four full siblings to his parents, both of who are known to the criminal justice system and one of four half siblings. I also have the benefit of a pre-sentence report in his case. He states that his father was not around under he was 12 years old as he was in and out of custody, stating his mother raised him. He reported being witness to family violence growing up and says that he witnessed his cousin overdosing on illicit drugs in his lounge room when he was 12. He reports that his mother is very sick with a terminal illness (and that doctors have given her until Christmas to live) which has caused him some stress.
He states that he was often spending time on the streets with friends and commenced getting into trouble with the law around 12 years of age, going on to spend some significant time in Ashley Youth Detention Centre. He recalled feeling that he was closer to his support workers in detention than he was to his own family as he spent so much time there.
He reports that he has a three year old son and that he does not have contact with the mother or child. He also has a five year old daughter and advises that he has been seeing her regularly in custody now that he and his ex-partner are back on speaking terms. He now realises how important it is to spend time with his daughter and is making an effort to be there for her.
The defendant advises that he is “sort of” in a relationship with a previous inmate of the female prison and stated they have been together for two years. He is not sure if the relationship will continue when he is out of custody or not but they continue to write to each other.
He completed year six at South Hobart Primary and went onto Taroona high school. He did not complete year 7 or 8 there because he consistently “wagged” and then discontinued his education. He recalled being suspended in high school for assaulting someone who was picking on another student. The accused described himself as a loner stating he didn’t have friends at school and found it hard to concentrate due to being diagnosed with ADHD.
The defendant started consuming alcohol at around 13 years of age. He stated he did not stop consuming alcohol until he was incarcerated as a youth at around 16 years of age. He recalls spending around 19 months in custody and then upon his release did not consume alcohol again. He advised he received alcohol counselling through Youth Justice around this time.
He started using cannabis at around 13 years of age and gave up at age 16 after he started to get panic attacks. He recalled after his release from Ashley Detention Centre after a long sentence he was first introduced to the illicit drug ice. He advised he has used this drug every day since then and that his criminal activity escalated. Prior to coming into custody this time he was using ice multiple times per day and has not received any support in relation to drug counselling. He stated he was on the Bupe program in prison until recently when he was removed from the program as it was alleged he was importing the drug into the prison and giving it to others.
As to his offending, the defendant advises that he met the complainant at a party in 2012 and on the same night they decided to commit a burglary together. They were both sentenced as co-accused by this Court on 26 November 2014. He says that the complainant “gave him up” in relation to that past offence and they have had problems with each other ever since. He stated they were not meant to be housed together at the prison and that the prison guards knew this but that the complainant was placed in the prison yard with him on the day in question.
The defendant states that Gill also had issues with the complainant and he watched him go up to the complainant in the yard and begin to assault him, upon which he walked over and joined in. The defendant Murtagh stated that he wanted to hurt the complainant and gang up on him so that the complainant “couldn’t have it over him” claiming he was scared of him. He also alleged the complainant had been “mouthing off” about him to other people in the prison which had got back to him.
The defendant stated that he didn’t think that the assault would have caused the injuries it did. He recalled feeling scared that the complainant was going to die. Reflecting on the offence he stated “it was lucky he didn’t die, it made me see how bad it could have been”. I do hate him but I didn’t want to hurt him that bad”. The defendant stated he took responsibility for his actions and felt bad for what had happened but also said “it had to happen”.
I am informed that there have been several incident reports from the prison recently that indicate that the defendant has been verbally abusive and demeaning to correctional staff. One incident report outlines there were threats to harm and kill a correctional officer made in August 2018.
The defendant denies having issues controlling his anger.
He is currently involved in the “stopping the violence” course at the prison however there is an incident report from 12 August 2019 outlining that he and another inmate got into a fight during one of the sessions and that the facilitator had to run out of the room. When asked about this the accused stated the other person had been “mouthing off for a few weeks.”
I have also had the benefit of psychiatric reports in respect of each of the defendants. From those reports there appears to be some reason in each case to ameliorate what would otherwise be a harsh sentence.
The results of the evaluation of the defendant Murtagh show that he has significant normative intellectual impairment. His intellectual abilities are lower than 99 percent of his same aged peers and the magnitude of his cognitive impairment is consistent with an individual with a diagnosis of Mild Intellectual Disability.
With reference to managing his moderate risk of violence for the future, the most pertinent factors are identified are his lack of personal support and inadequate stress and coping responses. I am told that it is promising that he intends to continue getting support from the chaplaincy service.
It seems to me therefore that I should suspend part of any sentence of imprisonment to facilitate the recommended period of supervised probation.
In the case of the defendant Gill I am informed that his Personality Assessment Inventory profile is consistent with an individual experiencing specific fears or anxiety surrounding some situations, and the pattern of responses is consistent with significant symptoms related to traumatic stress. It is likely that Mr Gill experienced a disturbing traumatic event in the past and this event continues to distress him and produce recurrent episodes of anxiety. This is consistent with him being sexually abused.
His significant history of trauma, and the results of the current psychometric evaluation indicate that he continues to experience symptoms of significant distress related to the trauma. I an informed however that it is evident that he now feels a sense of control with seeking legal redress for the abuse he suffered, and that it is promising that he has been linked in with an appropriate support service and that he finds this support useful.
I have also received a report from the Sexual Assault Support Service which states that during the counselling sessions Mr Gill has been provided with psycho-education regarding the physical and psychological effects of complex trauma, and individually tailored interventions derived from a range of therapeutic models, including Person Centred Therapy, Trauma Informed Approaches and Cognitive Behavioural Therapy [CBT]. He disclosed that he has been experiencing a range of trauma induced symptoms and these include but are not limited to hypervigilance, agitation, anxiety, paranoia, feelings of sadness and shame, low self-worth, anger and low mood. He also reports difficulty trusting people, and reported that he has used substances to suppress his trauma symptoms and to cope with daily life. He has attended appointments regularly, and has worked consistently and respectfully with his counsellor toward his journey forward. In the view of his counsellor, whilst he faces significant barriers due to long-term institutionalization within the prison system, with appropriate support he possesses enormous capacity to successfully reintegrate into the community, and has indicated he seeks to continue to utilize the counselling service.
It seems to me therefore that I should also suspend part of his sentence of imprisonment to facilitate the recommended period of supervised probation and to assist his re-integration.
The defendants’ crime is extremely serious. It occurred in the prison, the complainant was seriously injured and he was left for dead. There is nothing in the way of remorse from the defendant Gill and very little from the defendant Murtagh. Apart from their pleas of guilty there is little that is mitigatory. In arriving at the sentence that I have, I have discounted otherwise appropriate prison sentences to take account of and give credit for the utilitarian benefit of the defendants’ pleas of guilty, notwithstanding that they were late. This must not be overlooked. Without that fact and the attendant discount, my head sentence would have been significantly higher, given the nature of the crime.
Nor is there much to distinguish the criminal culpability of the two of them. They are of a similar age and both have bad records, Gill perhaps slightly worse. Gill may have started the assault, but Murtagh very quickly joined in and pursued the attack to the end. Neither of them helped the complainant after the event.
The defendants are each convicted and sentenced to two years and six months imprisonment with the last six months suspended on condition that they commit no offence punishable by imprisonment for a period of 12 months from their release from prison. The sentences are backdated to 13 March this year for Gill and 8 June this year for Murtagh. They are not to be eligible for parole until they have served half the operative period of the sentence.
I make a Community Correction Order in respect of each defendant for an operative period of twelve months from the date of their release from prison. That order is to contain, in addition to the statutory core conditions, in each case, special conditions that the defendant must undergo assessment and treatment for alcohol or drug dependency as directed by a Probation Officer and must submit to medical, psychological or psychiatric assessment or treatment as directed by a Probation Officer. It is a condition of the suspended sentence in each case that the defendant comply with the conditions of the Community Correction Order.