STATE OF TASMANIA v DUNCAN JOHN GILMOUR 19 DECEMBER 2023
COMMENTS ON PASSING SENTENCE JAGO J
Mr Gilmour, you have pleaded guilty to one count of Criminal Code assault. On 15 November 2022, you attended your sister’s residence at 21 Avon Street. The complainant was present there. You are your sister’s carer. She has a number of health issues predominately associated with her excessive consumption of alcohol. In particular, she has sclerosis of the liver which has caused a number of health complications. As part of your carer’s role, you limit her access to alcohol.
You attended at her residence this day because you could not raise her on the phone and she did not respond to a number of messages that you had sent. When you arrived at the residence, the complainant was there. This annoyed you because the complainant had previously supplied your sister with alcohol contrary to what you considered to be in her best interests. An argument developed. During the course of the argument, the complainant made a comment, which you perceived to be a slight on your ability to care for your sister. This angered you. You rushed towards the complainant and started punching him with both hands to either side of his head. You punched him approximately three to five times. You grabbed hold of him and scuffled with him. You pushed him up against a kitchen bench. You lifted him up and placed him on the kitchen bench. He fell from the kitchen bench and landed on the hard kitchen floor.
As a consequence of the assault, the complainant suffered a laceration to his left ear, which required a stitch, bruises over the right side of his upper and lower chest, a large bruise over the back and side of his right forearm, and fractures to nine ribs. His injuries were attended to at the North West Regional Hospital. He was admitted to the intensive care unit. He spent three days in that unit. His injuries did not ultimately require surgical intervention.
Whilst, of course, I sentence on the basis that you did not intend or foresee the consequences caused to Mr McMillan, the fact that the assault was objectively capable of causing such serious injury is itself a relevant factor in the sentencing exercise. Your violence caused serious consequences for Mr McMillan.
On 16 November 2022, you voluntarily attended the Burnie Police Station and participated in a record of interview. You told police that you had attended at your sister’s residence because you were concerned when you could not raise her. You said the complainant made a derogatory comment to you about the level of care you provided to your sister. This made you angry so you punched him. You admitted pushing the complainant back into the kitchen bench and grabbing him by the arms and lifting him onto the kitchen bench. You agreed the complainant fell from the kitchen bench and began screaming in pain. You told police your intention was to hurt the complainant to let him know that he had upset you. It was then an entirely unwarranted vengeful act.
Your crime has had a significant impact on the complainant. He endured a lot of pain and continues to have some residual difficulty flowing from the rib injury in particular. He is now often anxious. He has had to give up some of his past times, such as playing golf, because of the ongoing pain.
You are 66 years of age. You have no relevant prior convictions. You are now retired but have had an industrious history. I accept your behaviour on this occasion was out of character. You reacted badly to a comment made to you by the complainant. It upset you because you are committed to the care of your sister. Although you had no intention to cause the extent of the injuries the complainant suffered, you accept your assault resulted in Mr McMillan experiencing considerable pain and discomfort, and for that you are sorry. I accept your remorse is genuine. You entered an early plea of guilty whilst this matter was still before the Magistrates Court. It goes without saying that the use of violence to settle grievances or frustrations is simply unacceptable. General deterrence and denunciation are always prominent factors in the sentencing exercise. Your behaviour is a very good example of how the use of violence can readily result in unexpected harm and injury. All too often, courts deal with situations where the use of violence leads to very serious outcomes in circumstances where it was entirely unintended.
The objective seriousness of your crime requires the imposition of a sentence of imprisonment, in my view. The message must be received by you personally and the broader community that gratuitous violence is not to be tolerated. There are, however, good reasons which weigh against making you serve that period of imprisonment immediately. In particular, I note your lack of relevant prior convictions, your remorse and the improbability of you reoffending. A wholly suspended period of imprisonment is appropriate.
Duncan John Gilmour, you are convicted of the crime of assault. You are sentenced to a term of imprisonment of four months. The whole of that sentence will be suspended for a period of 12 months on condition that you are not to commit any offence punishable by imprisonment during that time. I need to explain to you Mr Gilmour that if you do, in fact, commit another offence punishable by imprisonment, you can be brought back to this Court and an application made that you serve the period of imprisonment. The law is that a judge must activate the sentence unless it is unjust to do so.