STATE OF TASMANIA v BENJAMIN GORDON HESSAY 7 DECEMBER 2022
COMMENTS ON PASSING SENTENCE JAGO J
Mr Hessay, you have pleaded guilty to one count of assault. On 26 November 2021 the complainant was seated in the driver’s seat of his vehicle in the Coles supermarket carpark at Devonport. You were also in the Coles supermarket carpark. It seems there was a history of antagonism between you and the complainant, extending back to your childhood. You had lived with the complainant for a number of years. He was, in effect, your stepfather. You were of the belief that he had behaved inappropriately towards both you and your mother during your childhood. You also believed that in more recent times, he had made some inappropriate comments directed towards one of your children.
You approached the complainant in his motor vehicle, intending to speak to him about what he had allegedly said. You pointed your finger at him and reprimanded him. He apparently bit your finger. I am cognisant that I have only one side of the story, but the facts as outlined by you are not disputed by the State, and I will sentence on that basis. You responded by punching him twice to the face. The punches you delivered must have been relatively forceful blows because the complainant sustained the following injuries: a laceration to the right upper eyelid, a red right eye, swelling and bruising to the right eye lid, a small cut to the bridge of the nose, a small laceration to the upper right forearm, fractured nasal bones and a fractured right eye socket.
I accept that you did not intend or anticipate necessarily, the type of injuries that were, in fact, suffered by the complainant, but of course, you remain responsible for the foreseeable consequences of your conduct.
The complainant was 69 years of age at the time of the incident. You were 33. I have seen photographs of the bruising and swelling to the complainant’s right eye and photographs of the laceration to his forearm. I have no doubt the injuries were painful for him. It seems, however, with time the injuries resolved without the need for significant medical intervention.
I have read the Victim Impact Statement of the complainant. The injuries were painful for a few days after the assault and he experienced some breathing difficulties. His vision was also impacted for several days. The complainant now feels scared to be in public places. He is fearful and wary there may be another confrontation with you.
When you were spoken to by police on 26 November 2021, you told them that you had punched the complainant to the face. You said the altercation occurred because the complainant had threatened to harm your child. You told police the complainant had grabbed your hand when you were remonstrating with him and bit you on the thumb. You reacted by punching him in the face.
You have quite a long history of criminal offending. You have many prior convictions for driving offences, bail offences, dishonesty offences and offences against good order. In terms of violence, your prior history is relatively minimal. There is one prior conviction for common assault in 2018. There are also prior convictions for offences against police, for destroying and injuring property and for breaching a police Family Violence Order. Those breaches appear to relate to abusive messages and comments rather than physical violence.
You have full time employment. You are the father of two children. One of those children you have in your care every weekend. The other child you see regularly. As noted, you grew up in a family unit where the complainant was your stepfather. He treated you harshly. Not only was there physical violence, but you claim you were treated unfairly because you were his stepson rather than his biological child.
You have pleaded guilty, unrepresented by counsel, at a very early opportunity. That counts in your favour. It is indicative of your acceptance of wrong doing and willingness to take responsibility. You co-operated with the police and made admissions.
It goes without saying that punching another person to the face and head is inherently dangerous. You delivered the blows when the complainant was seated in a motor vehicle and not in a position to defend himself. He was also considerably older than you. The use of violence to settle grievances, real or perceived, is unfortunately all too common and is simply unacceptable. General deterrence and denunciation are prominent factors in the sentencing exercise. I accept that generally speaking, violence is out of character for you and was prompted it seems in this case by the particular circumstances of your conflict with the complainant. I do not consider there is a substantial risk of re-occurrence, or that you pose a risk to anyone else.
I am satisfied nevertheless that the objective seriousness of your crime requires the imposition of a sentence of imprisonment, but there are good reasons which weigh against making you serve that period of imprisonment immediately. I intend to impose a wholly suspended period of imprisonment.
Benjamin Hessay, you are convicted of the crime of assault. I sentence you to a term of imprisonment of six months. The whole of that sentence will be suspended for a period of 18 months on condition that you are not to commit any offence punishable by imprisonment during that period. I need to explain to you Mr Hessay that if you do, in fact, commit any offence punishable by imprisonment – and I emphasis the word “any” – during that period of time, 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 that sentence unless it is unjust to do so.