STATE OF TASMANIA v PETER GLENN HOWLETT ESTCOURT J
COMMENTS ON PASSING SENTENCE 6 MAY 2019
The defendant has been found guilty by a jury of one count of causing grievous bodily harm, contrary to s 172 of the Criminal Code.
The case was a circumstantial case against him, but consistent with the jury’s verdict, I am satisfied beyond any doubt that at about 1.40am on the morning of Sunday 18 September 2016 the defendant was standing in a queue of people waiting to gain entry to a night-club in Despard Street, known as the Lower House. While the defendant was waiting in line, the complainant Samuel Dean, who had been drinking but was not drunk or incapable of normal behaviour, walked past on his way from the Telegraph Hotel at the other end of Despard Street to the Victoria Tavern in Murray Street. The complainant became engaged in a conversation with a friend of his Katie Green, who was also standing in the line just ahead of the defendant. The complainant was trying to persuade Ms Green to go with him to the Victoria Tavern, but she did not want to go because she had been standing in the Lower House queue for some time and was close to being admitted.
The defendant who had also been drinking, but was not drunk or incapable of normal behaviour, but perhaps misunderstanding the situation, remonstrated with the complainant saying words to the effect of “she doesn’t want to go with you mate”. No doubt other words were spoken because while Ms Green was being admitted to the club the defendant was asked to leave the line. I infer on account of the disturbance.
The complainant had walked off along the rest of Despard Street and then around the corner past the Daci and Daci Bakery and up Murray Street. He was followed some fifteen seconds or so later by the defendant who was angered at being asked to leave the queue. As the complainant reached the area in front of the Executive Building, the defendant caught up with him and shouted “Oi” before punching him once to the side of the face, breaking the complainant’s jaw on both sides.
The defendant then walked back down Murray Street towards the river with his two brothers who had gone up to him after the assault and brought him back down.
I am satisfied on the balance of probabilities that the defendant did not intend to cause grievous bodily harm to the complainant, but consistent with the jury’s verdict, he must have foreseen the possibility of serious injury to health and acted regardless.
I have been read a Victim Impact Statement from the complainant. He has recovered physically, he has no permanent side-effects, he does however have psychological sequelae, his long standing anxiety and depression has been made worse. On occasions he is reduced to tears, and has not been able to attend his employment, or at least until late. He has PTSD-like symptoms and he believes himself that he will always be scarred.
His injury was a serious one, all be uncomplicated in medical terms. It involved a displaced fracture of the jaw on one side, and an un-displaced fracture on the other. He required surgery and the insertion of two titanium plates and the removal of a wisdom tooth. The complainant would have suffered very serious pain.
The defendant is still a relatively young man, at 26 years of age now, and has no relevant prior convictions but a subsequent conviction for assault that speaks potentially to his prospects of rehabilitation. He has not been subjected to a period of imprisonment in the past. He is not entitled to any discount on an otherwise appropriate sentence as was the case in Butt v Tasmania [2018] TASSC 3, where the appellant had pleaded guilty.
I note that the defendant lost his employment as a result of his offending, but in so far as rehabilitation prospects are concerned he does have the possibility of re-employment on his release from prison.
The phenomenon of young men who have been out all night drinking, engaging in violence without warning, involving single punches of great force is all too well known, as are the consequences of such violence. In this case the attack was vicious and unprovoked.
The defendant has shown no remorse whatsoever, rather a total disregard of the complainant’s injury which one punch assaults of this nature and severity often cause. These are all too common often with dreadful consequences for the victim. Fortunately in this case, not so.
The severity of the attack and the potential for serious injury demand that weight be given to general deterrence. The crime requires denunciation in the sense of appropriate vindication, and to assuage public outrage. The sentencing objective is to vindicate the right to victims and to reinforce the values of the community.
The defendant is convicted of the crime of causing grievous bodily harm. Taking all matters into account and adopting, as I do, the position as to intention that is most favourable to the defendant, he is sentenced to a term of three years’ imprisonment. Taking into account his relatively young age and his relatively good prior record, I suspend the last 12 months of that sentence on condition that he commit no offence punishable by imprisonment for a period of 2 years after his release from prison. I order that that the defendant not be eligible for parole until he has served 12 months of the term of actual imprisonment.
The law requires me to explain the nett effect of that to you, Mr Howlett, and that is, the sentence is three years, but you are only required to serve two years of that sentence, 12 months of it is suspended, and you are eligible for parole after you have served 12 months.