STATE OF TASMANIA v THOMAS OLIVER HARVEY 4 JULY 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Harvey, you have pleaded guilty to one count of wounding and one count of assault.
You committed these crimes on 8 October 2018. The victim was a man who had previously been your friend. There had been a falling out between you. I have not been given any significant detail about the reason for that, but shortly before you committed these crimes, you had received an abusive and threatening message over social media. You thought that the message had come from the complainant, but it is now accepted that it had actually been posted by his partner, which, I suppose, demonstrates very nicely why people should not take the law into their own hands. You got this completely wrong. In any event, you harboured anger towards the complainant because of the message.
On the day of the crimes, you unexpectedly saw the complainant in the street while you were sitting in your stationary car. You immediately took up a tyre lever which was in your car, walked up to the complainant and struck him on the back of the head with the lever. This blow caused a wound to the back of his head which required 10 staples for closure. This constitutes the crime of wounding. The blow caused the complainant to fall to his knees. You continued to hit him with the metal pole to his lower back and arms until you were restrained by colleagues of the complainant’s from his nearby workplace. These blows resulted in marks and bruises to the complainant’s body and constitute the crime of assault.
It is accepted that your actions were not premeditated, although on a prior occasion you had stood outside the complainant’s workplace and expressed the intention of engaging him in a fight. However it is accepted by the prosecution that the commission of these crimes was a spontaneous reaction to unexpectedly seeing the complainant on the relevant day. It seems also that you suffered immediate remorse. You handed yourself into police a few hours after the assault, and participated in an interview in which you made full admissions. You pleaded guilty to these crimes in the Magistrates Court at a very early opportunity. These actions support your claim of remorse, and I accept that you are genuinely remorseful for what you have done.
You are 27 years of age. You have prior convictions in Tasmania, but the majority relate to offences committed before you turned 18. You have some relatively minor criminal history in this State as an adult. You also have criminal history in Queensland, where you lived for some years. There is one offence of violence committed when you were aged 18, but the balance are drug and dishonesty offences. As far as I can see, you have not been to prison before and, apart from a common assault committed in Tasmania when you were a youth and the Queensland offence, you do not have a history of violent offending. It does seem that the crimes on this occasion constituted an isolated episode of violence which arose out of the particular circumstances.
You have a reasonable work history, although in recent times, you have been caring for your partner, who suffered a serious injury in a motor vehicle accident. Your counsel has provided me with evidence which establishes that you have been offered full-time employment, which is due to commence in a few days time. It is clear, and I accept, that this employment will be an important component of you choosing and leading a law abiding life into the future. I note that you have also sought counselling with a local community organisation.
This was a very serious crime. I am very concerned about the serious nature of the violence perpetrated on this man, in particular the blow to the back of his head with the tyre lever. That blow caused injury, but had the potential to cause far more serious injury or something even worse than that. You perpetrated the violence in a public place and used a weapon. The objective seriousness of the crime requires the imposition of a sentence of imprisonment.
However, having regard to your lack of history of violent offending, your very early plea of guilty, your demonstrated remorse and your opportunity for employment, I am satisfied that I should provide you with an opportunity to avoid actually serving the sentence. A pre-sentence report assesses you as suitable for community service, but does not recommend supervision because you are adequately addressing concerns underlying offending behaviour. I will accept that recommendation, although it does concern me that your history of drug offending in Queensland seems to be more extensive than I originally appreciated. But I will accept what I have been told – that you have overcome that problem. For your sake I hope that is the case. Further, it seems to me to be appropriate that you should perform some community service so as to experience some actual punishment for the commission of these crimes. I will therefore wholly suspend the sentence I am about to impose on conditions which include performance of community service, and also most importantly that you are not to commit any offence punishable by imprisonment during the period of suspension. As your counsel will tell you, that includes most of the offences on the statute books. You have escaped going to prison on this occasion by the skin of your teeth, and if you muck this opportunity up, then you can expect that it will be highly likely that the court dealing with a breach will activate the sentence of imprisonment.
Accordingly, the orders I make are as follows:
1 You are convicted of the crime and the offence to which you have pleaded guilty.
2 You are sentenced to a global term of 15 months’ imprisonment. The whole of the sentence will be suspended for a period of 24 months on the following conditions:
(a) That you are not to commit another offence punishable by imprisonment during that period.
(b) That you will perform community service for a period of 210 hours. The court notes that the sections referred to in s 24(5A) of the Sentencing Act apply to this condition. For the purpose of those provisions, the operational period of the order is 24 months.