STATE OF TASMANIA v GEORGE MATTHEW JEFFREY 27 FEBRUARY 2020
AND JAKE HARLEY HATTENSCHWILER
COMMENTS ON PASSING SENTENCE PEARCE J
Jake Hattenschwiler pleads guilty to causing grievous bodily harm. George Jeffrey pleads guilty to one count of aggravated assault and one count of assault. All of the charges arise from one series of events. At about 9 pm on 16 December 2018 both men, with one other man, went to a unit complex at 60 Herbert Street in Invermay. Both carried a backpack containing a firearm. Mr Jeffrey had a pistol. Mr Hattenschwiler had a 12 gauge single barrel sawn off shotgun. After visiting the occupant of one of the units the men went to the unit occupied by the complainant, Wal Yel. He did not know them. They entered his unit uninvited through the unlocked door and immediately began to act in an aggressive way. They threatened to hurt him. He walked outside, and they followed and yelled at him. Mr Hattenschwiler said that he needed drugs. Mr Jeffrey then took the handgun from his backpack, pointed the gun at Mr Yel’s chest for several seconds before lowering it to his side. That is the aggravated assault. Mr Jeffrey then punched Mr Yel to the face. That is the assault. Mr Hattenschwiler then walked towards Mr Yel with his fists raised. As Mr Yel prepared to be confronted, Mr Hattenschwiler produced the shot gun from his backpack and, from somewhere between three and five metres away, aimed the gun at Mr Yel’s face for about two seconds, and pulled the trigger. The gun did not fire. Mr Hattenschwiler adjusted the firing mechanism and immediately pulled the trigger again. This time the cartridge did discharge. The sunglasses Mr Yel was wearing were shattered and something entered his right eye. The result was a catastrophic injury to that eye. The eye was ruptured. Mr Yel was taken to hospital in Launceston and then transferred to Hobart, but to no avail. His eye was destroyed and has since been removed and replaced with a prosthetic eye.
The impact of the crime is explained in Mr Yel’s victim impact statement. The physical and psychological impact is significant. He is 35 and originates from Sudan. Apart from the permanent loss of his right eye he experiences some problems with his other eye. The immediate impact of the injury was severe pain and disability. His employment options are much reduced and he relies on services. He is less able to drive and cannot drive at night. He has lost the sense of safety and security he previously had and his self-esteem has been badly affected. The effect on him will be lifelong.
Mr Hattenschwiler’s plea of guilty to causing grievous bodily harm is accepted by the State on the basis that his act of firing the shotgun at Mr Yel was subjectively reckless. That is, that he realised the risk that, by doing so, he was likely to cause serious injury to Mr Yel, and acted regardless of the risk. The State does not dispute that the shotgun fired by Mr Hattenschwiler was loaded not with conventional shot, but with salt. According to his counsel, Mr Hattenschwiler intended to fire a “non-lethal round”. The point of the submission was to attempt to distinguish the degree of criminal culpability involved in Mr Hattenschwiler’s act, with other instances of the same crime which may involve prolonged and repeated infliction of force, for example by striking with fists or kicks. The case of Barron v Tasmania [2010] TASCCA 3 was offered as an example and reference was made to the range of sentences for this crime. The submission that Mr Hattenschwiler’s acts are less serious than Mr Barron’s can be accepted, but I do not see that the criminality involved in Mr Hattenschwiler’s conduct to be necessarily less serious than a case involving repeated force inflicted by different means. That is so for two principal reasons. Firstly, it is not mitigating that he is not guilty of a more serious crime. Had the shotgun been loaded with a conventional cartridge Mr Yel would likely have been killed or even more seriously injured. It is hard to see how firing a conventional cartridge in similar circumstances could be other than an intentional killing or injury. Even for the same crime, the seriousness of the actual consequences of a criminal act is always relevant to sentence. What the result may have been had Mr Yel not been wearing sunglasses can only be wondered about. Secondly, the use of a weapon, especially a firearm, to inflict injury is always regarded as serious. Mr Hattenschwiler’s crime did not involve the single act of pulling the trigger. He pulled the trigger without success and then deliberately adjusted the gun and pulled the trigger again. He did not intend serious injury, but consciously averted to the likelihood of it and acted not caring whether or not serious injury resulted. In the particular circumstances of this case, there is very little distinction in culpability between committing such an act with that mental state, and doing so with the intention of causing such injury. What Mr Yel was struck with has not been explained, but whatever it was came from the shotgun. There was an obvious extreme risk of serious injury inherent in the act of firing a shotgun at a person’s face from relatively short range, whatever it was loaded with. It was a dangerous and callous act.
Mr Hattenschwiler is now aged 30. He is in a relationship with a responsible partner. Over time he has held some menial employment, but his life is characterised by abuse of illicit drugs and the criminality which has resulted. In 2008, when he was 19, he was sentenced to imprisonment for two years for three counts of aggravated armed robbery, two counts of burglary and one count of stealing all committed during the previous year. Those crimes were to obtain for money for drugs. Since then he has committed many more crimes of dishonesty, mostly burglary, aggravated burglary and stealing, bail offences, driving offences and some relatively minor firearms offences. There are some other crimes involving violence, including assaulting police and assaulting a public officer, but none for violence as serious as this. A drug treatment order was made in January 2017 with a custodial part of imprisonment for nine months. I infer that his compliance was limited because it was cancelled and he was imprisoned in May 2018 for six months. In February 2019 he was imprisoned for four months from 19 December 2018 for driving, bail and anti-social offences and then a further six weeks on 10 April 2019 for fraud. It is agreed that the sentence I impose should commence on 9 May 2019.
Mr Jeffrey is now 27. He is single with no dependants. He fell into bad company as a teenager and abused drugs and alcohol. He has a record for offences of dishonesty and violence. As a youth, he was sentenced to detention for two years for aggravated robbery, two counts of aggravated burglary and causing grievous bodily harm. There was then a long gap in his offending until 2017, which coincided with his mother’s illness, the impact of which led him back to drugs and his life spiralled out of control. On 9 April 2018 he was sentenced by a magistrate to imprisonment for 14 months for offences including two counts of unlawfully possessing property, five counts of computer related fraud, ten counts of aggravated burglary or attempted aggravated burglary, one count of burglary and ten counts of stealing. Seven months of that sentence was suspended for two years. On 24 April 2018 he was sentenced to imprisonment for 28 days for common assault, which was served concurrently with the earlier imposed term. On 19 October 2018 he was sentenced to imprisonment for three weeks, again wholly suspended, for injuring property, stealing and two counts of burglary. The crimes to which he has now pleaded guilty constitute a breach of the conditions of the suspended sentences and they must be activated unless I am satisfied it is unjust. Given the nature and timing of the breach there is no basis on which I could reasonably reach that conclusion. It is aggravating that the crimes were committed while he was subject to the suspended sentences and to a probation order. He was later charged with firearm offences committed on 6 December 2018, and for a further aggravated burglary and trespass committed on 18 September 2019. He was sentenced for those crimes in April 2019 to a term of six months from 16 December 2018 and ten weeks from 18 April 2019. They are not prior convictions for sentencing purposes but are relevant to the prospect of rehabilitation and totality. He was eligible for release on 26 June 2019 but has been in custody since then. The sentences I am about to impose will commence on that date. It was asserted without dispute that he has not used drugs while in prison and intends to continue his rehabilitation on his release.
It is not asserted by the State that Mr Jeffrey is responsible for any of the acts of Mr Hattenschwiler. Mr Jeffrey is not to be sentenced as having played any part in the firing of the shotgun or the loss of Mr Yel’s eye. Conversely, Mr Hattenschwiler is not responsible for any of the acts of Mr Jeffrey. Neither is charged in this Court with any offence arising from entry into Mr Yel’s unit or what may otherwise have been interpreted as a demand for drugs, although their combined conduct is relevant to understanding the situation in which Mr Yel found himself and the fear he experienced in the lead up to being shot.
Both defendants are entitled to some mitigation from a plea of guilty. It came not long before their trial was due to commence, but both were charged with attempted murder. The pleas came quickly after the State amended the indictment to the lesser charges. Nevertheless, the crimes for which they are to be sentenced are serious. Neither has demonstrated any real remorse other than that which is inherent in the plea. Both were seriously affected by methylamphetamine at the time. Their actions were irrational and dangerous. The community and the courts have long expressed concern about crimes of violence driven by abuse of illicit drugs.
In Mr Jeffrey’s case, the crimes are another example of his recent complete disregard for the personal and property rights of others. He is not to be punished for his record but protection of the public and personal deterrence are significant sentencing factors. The pointing of a handgun at a person at close range is a terrifying and traumatising act. It is not known whether the gun he had was loaded, but Mr Yel could not have known that either. I have not been informed that the punches Mr Jeffrey inflicted caused any injury. He accepts some responsibility for the psychological impact on Mr Yel, although the acts of Mr Hattenschwiler were plainly the most significant factor. I will allow for parole.
For the reasons already expressed, relating to the criminal culpability of Mr Hattenschwiler and the impact of his conduct, I accept the submission of counsel for the State that his crime is a serious example of the crime of causing grievous bodily harm. I will allow for parole but not until he has served the minimum term I consider is required to reflect the need for punishment, deterrence and protection of the public.
George Jeffrey, the seven month suspended term imposed on 9 April 2018 is activated in full. I order that you serve that term from 26 June 2019. I order that you not be eligible for parole until you have served four months of that term. The three week suspended term imposed on 19 October 2018 is activated. I order that you serve that term cumulatively to the term just imposed and that you are not eligible for parole in respect to that sentence. On the indictment, you are convicted on both counts. I impose one sentence. You are sentenced to imprisonment for 14 months cumulative to the terms just imposed. I order that you are not eligible for parole in respect to that sentence until you have served seven months of that term.
For the purposes of s 92A of the Sentencing Act, I specify:
(a) the terms of imprisonment that are being activated or imposed are:
(i) seven months commencing 26 June 2019 on the application made 18 February 2020 to activate the suspended sentence imposed on 9 April 2018. For that sentence you are not eligible for parole until having served four months of that term;
(ii) three weeks on the application made 18 February 2020 to activate the suspended sentence imposed on 19 October 2018. For that sentence you are not eligible for parole;
(iii) one year and two months on indictment 42/2020. For that sentence you are not eligible for parole until having served seven months of that term.
(b) each of the activated suspended sentences, and the sentence imposed on the indictment are to be served cumulatively;
(c) the total period that you are liable to serve for all of those sentences of imprisonment is one year, nine months and three weeks from 26 June 2019;
(e) the total period, in relation to the sentences, before the expiration of which you are not eligible for parole, is 11 months and three weeks from 26 June 2019.
Jake Hattenschwiler, you are convicted on the indictment. You are sentenced to imprisonment for three years and nine months from 9 May 2019. I order that you not be eligible for parole until having served two years and three months of that sentence.