STATE OF TASMANIA v MATTHEW WARREN HODGE 13 FEBRUARY 2024
COMMENTS ON PASSING SENTENCE JAGO J
Mr Hodge you have pleaded guilty to one count of assault. Around 10.45pm on Saturday, 22 April 2023 you and the complainant were both at Franky J’s, a nightclub in Devonport. The complainant had consumed some alcohol but was not significantly intoxicated. There was an altercation between a number of people in an outside area. The complainant intervened in that altercation because one of the people involved was known to him. The complainant’s intervention resulted in a table being knocked over. There were a number of females seated at that table. One of them was your partner. Your partner grabbed the complainant from behind in a headlock and both she and the complainant fell to the ground. Your partner then used the heel of her shoe to stomp down on the complainant’s right eye. Your partner has been charged and that matter is pending. It is not alleged you are criminally responsible for that act or in fact knew that it had occurred.
Nevertheless, whilst the complainant was on the ground being restrained by your partner you approached him and punched him once to the face with your right fist. The assault was captured on CCTV. I have seen it. Your blow was an unjustified and unwarranted, retaliatory act. The complainant left the nightclub. He attended the Mersey Community Hospital in the early hours of the following morning. CT scans and x-rays were undertaken. They revealed a comminuted fracture through the base of the right eye socket, a comminuted fracture through the middle and front wall of the maxillary sinus and nasal bone, bruising and swelling to the right hand and abrasions and swelling to the left hand.
It cannot be determined whether it was the blow struck by your partner or your punch which caused the injuries. It may well be the injuries were the combination of both blows. The assault perpetrated by you would have exacerbated any injuries already caused by your partner’s blow. Your blow was delivered without warning or provocation to a vulnerable person who was restrained on the ground and was not in a position to attempt to protect or defend himself.
I have read the victim impact statement of the complainant. He has been left with some residual nerve damage to the right side of his face. He is now more apprehensive in social circumstances than before.
You are 39 years of age. You are in a long term relationship. Between you and your partner, you have nine children. Six of them remain under 18. You are the primary provider for your family unit. You are employed as a painter with a local firm. I have read the reference provided by your employer. You are obviously well regarded in that capacity. You have relevant prior convictions. In 2002 you were dealt with for a matter of assault in the Youth Justice Court. In 2009 you were convicted and fined for the offence of common assault. In 2011 you were again convicted and fined for the offence of common assault. Beyond those matters you have convictions for bail offences, destroying property and driving offences.
Striking another person to the head and face area is an inherently dangerous thing to do. As noted, you delivered the blow to a vulnerable person who was restrained, not expecting it, and not in a position to defend or protect himself. Violence in and around licenced premises is sadly all too common. You and others must understand that even a single blow may, and often does, cause serious injury and even loss of life. The injuries occasioned to the complainant were bad enough but could easily have been far worse. General deterrence and denunciation are prominent factors in the sentencing exercise.
I am satisfied the objective seriousness of your crime requires the imposition of a sentence of imprisonment. I accept, however, there are a number of factors which weigh against making you serve that period of imprisonment immediately. In particular, I note your good employment, your family commitments, the time that has passed since the commission of the last relevant prior conviction, and your potential to lead a productive law abiding life. I intend, therefore, to wholly suspend the period of imprisonment.
I make the following orders. 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 two years on condition that you are not to commit any offence punishable by imprisonment during that time. Mr Hodge, I explain to you that if you do commit any offence punishable by imprisonment, and I emphasise 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 it unless it is unjust to do so.