STATE OF TASMANIA v EMMA-KATE GRAY 17 SEPTEMBER 2020
COMMENTS ON PASSING SENTENCE GEASON J
Ms Gray you have pleaded guilty to assault contrary to s 184 of the Criminal Code.
The Crown has accepted that plea in satisfaction of the indictment. It accepts the plea of guilty on the following basis:
(a) that whilst intoxicated, you intended to assault the complainant and did assault her by throwing wine in her face;
(b) in doing so, you neither intended nor foresaw that you would strike the complainant with the glass;
(c) however, during that assault, you did in fact strike the complainant with the glass, and injury resulted.
It is accepted that you neither intended nor foresaw the injuries that were sustained by the complainant, and I sentence you on that basis.
That does not make the consequences irrelevant to sentencing. Those consequences are relevant for sentencing purposes. I was referred to a number of authorities: R v Bennett; Bennett v The Queen (1989) Tas R 72 per Crawford J at [45] and Wise v The Queen [1965] Tas SR 196 at 201-202 and 209. The most recent of course is the decision of the Court of Criminal Appeal in Parker v Tasmania [2020] TASCCA 9, which upheld a sentencing decision of Blow CJ.
The facts are that on the evening of 13 October 2018, you and the complainant were at a wedding reception for another family member at Seven Mile Beach.
There had been ongoing animosity between the two of you. Late in the evening you decided to confront your brother about something you believed the complainant had said, whereupon she became involved in the conversation. A verbal altercation broke out between the two of you, witnessed by your brother and your niece.
During the confrontation the complainant threw the contents of her wine glass into your face. You were standing in close proximity to one another. You responded by throwing wine at her and, then you repeated that movement. In the course of doing so, your glass made contact with her right cheek resulting in injury.
Police were called. When they arrived they were told the complainant was in the bathroom. They located her sitting on a chair. She had a towel to her face and she told police that she was injured, and that you were responsible for those injuries.
An ambulance was called. She was taken by ambulance to the Royal Hobart Hospital for treatment. She was admitted that night and underwent surgery under general anaesthesia to repair the wound with multiple sutures. As a result of the injury, the complainant has a scar on her right cheek and ongoing numbness.
You were located in the rear courtyard of the venue and observed to be intoxicated. You made a number of abusive comments relating to the complainant.
Under caution you stated to police that there had been an ongoing issue with her for around four years, and that you had confronted her. At that time you said you did not care that she had been injured. I accept that you were unaware of the extent of her injuries when you said that.
You were arrested and taken to the Bellerive Police Station, where you participated in a video record of interview. Under caution you stated the following:
(a) the complainant was a “troublemaker” within the family and was overly-involved;
(b) that you did not get along with her;
(c) that you believed that she had made up a rumour about your brother;
(d) that she had “fired up” and an argument had broken out about a range of matters;
(e) that the next thing you knew was that she had thrown a glass of wine straight in your face;
(f) that you had a glass of wine in your hand and you “flung your wine into her face”;
(g) you lost your grip on the glass;
(h) the of the whole glass came out of your hand and hit the complainant in the face;
(i) that you only intended to tip wine onto her;
(j) that she was “pretty close” to you when this happened;
(k) you knew the glass had hit her in the face;
(l) you saw blood;
(m) you did not see what had happened to the glass; and
(n) that you regretted “retaliating”.
I accept that you are remorseful. I accept that this is out of character for you. You have no prior convictions for this type of behaviour. This episode stands as a good example of excessive alcohol consumption leading to behaviour which would not ordinarily have occurred. I do not think you will repeat it. I think that the aftermath of this episode, including the process of police interview, and these proceedings and the public nature of them, will cause reflection on your part. I consider that that will be enough to deter you from such behaviour in the future.
The real issue is the need to deter others and to vindicate the victim of your conduct.
No matter what difficulties you described in your relationship with the complainant, she is entitled to be safe from this sort of assault. The consequences for her cannot be ignored by the Court, as I have already said.
The Court must also deter others from similar behaviour. In some respects it might be thought that impulsive actions are less likely to be moderated through sentencing: general deterrence as a sentencing concept supposes a degree of reflection before acting, and that is the antithesis of an impulsive action such as yours. The point is that, in time, through the imposition of strong sentences the message that such behaviour carries the risk of significant punishment will form part of the broader consciousness. In that way the sentencing objective is achieved.
I take account of your plea of guilty, which assists the administration of justice, and has saved the complainant from having to give evidence.
I have had a pre-sentence report prepared, and I note its contents. It confirms that you are a person who is of good character, and that your criminogenic risk is low. It reinforces what I have already said about remorse.
I have decided that the best way to satisfy the sentencing objectives here is to make a Community Corrections Order and impose community service orders upon you. I have received a satisfactory medical clearance for the purpose of the assessment of your suitability for community service work.
Ms Gray I convict you. I make a Community Corrections Order for a period of 24 months. I order that you are to perform 70 hours of community service work within that period of time. I do not make any order for supervision in accordance with the contents of the pre-sentence report.
I think the sentence is self-explanatory. I impose 70 hours of community work, and you have two years within which to undertake that work. That period of time is nominated to take account of current COVID restrictions which have limited the operation of the Community Corrections network, and which will impact the time within which you can perform that work.