JACKSON, K K

STATE OF TASMANIA v KURT KERRY JACKSON                              ESTCOURT J

COMMENTS ON PASSING SENTENCE                                           16 OCTOBER 2019

The defendant has been found guilty by a jury of one count of assault contrary to s 184 of the Criminal Code.

After midnight on 4 August 2018 the defendant was called to the aid of a friend who was involved in a fight with a stranger in the forecourt of the Top of the Town Hotel in Burnie.

The defendant intervened and threw the assailant to the ground, the assailant was the complainant Yolya Mansell.  The defendant thereafter punched him to the head.  The complainant suffered injuries comprising two fractures of the jaw bone which required two lots of surgery which resulted in a positive prognosis.

I have seen a victim impact statement which I would ordinarily treat with some circumspection but, I am unable to say that Mr Mansell’s injury to the jaw was caused by either Mr Jackson throwing him to the ground or thereafter punching him to the head, nor am I able to say that Mr Mansell’s claimed victims impacts were as a result of either of those actions of Mr Jackson.

Consistent with the jury’s verdict  however, I am satisfied beyond reasonable doubt that while the defendant perceived the need to act in the defence of Mr Roughley he went too far in the force he used in propelling the complainant to the ground and thereafter in punching him to the head. I am unable however to find that Mr Roughley had the upper hand in the fight with the complainant as asserted by the Crown.

The defendant is 38 years old and has numerous prior convictions for assault. He has three convictions for common assault and three convictions for Code assault in this State. He has served sentences of imprisonment for some of those assaults and on 27 February 2017 he was subjected to a probation order for 18 months, one of the conditions of which was that he complete both the EQUIPS aggression program and the EQUIPS addiction program.

In Victoria the defendant was convicted in September 2017 of “reckless conduct endangering serious injury” and with unlawful assault.

The defendant is not to be sentenced for his poor record, however, it does show that he was not acting out of character.

I take into account that the defendant went to the aid of his friend at the invitation of another friend, and that the situation was created in the first place by the drunken violent behaviour of the complainant himself. That did not however, permit the defendant to use excessive force.

The defendant is convicted of assault and is sentenced to six months imprisonment.  The offence puts the defendant in breach of a suspended sentence of imprisonment of 27 February 2017 when the defendant was sentenced to 3 months imprisonment wholly suspended on conditions, some of which I have already alluded to.  I do not find it unjust in the circumstances to invoke that suspended sentence and I do so.

The total effect of that then is a sentence of 9 months’ imprisonment comprising 6 months imposed for the crime of which he is now convicted and 3 months suspended sentence from 2017 which I invoke.  The sentences will run from today.