STATE OF TASMANIA v MICHAEL JOHN JONES MARTIN AJ
COMMENTS ON PASSING SENTENCE 31 OCTOBER 2019
Mr Jones, on 22 October 2019 you were found guilty by a jury of unlawfully wounding the male victim. I am required to sentence you for that crime in accordance with the verdict of the jury, and on the basis of facts that I find proved beyond reasonable doubt.
In addition, you have indicated a plea of guilty to the summary offence of disorderly conduct in the summary file 36480/2017, which is based on events earlier on 21 December 2017 when you engaged in disorderly conduct by shouting, swearing, and threatening to bash people.
The specific events with which I am concerned occurred on 21 December 2017 on Story Street, St Marys. At that time you and the victim had developed an intense dislike for each other. Previously the two families had become friendly, but for reasons which do not matter, that friendship had broken down and, prior to the events with which I am concerned, there had been a history of antagonism between you and the victim. There had been regular disputes and the police officer stationed at St Marys described it as “just usually abuse in the street, that sort of thing”, but not involving “fisty cuffs”. You regularly abused the victim and, at times, at least one of your children was involved in delivering verbal abuse. I accept the evidence of the victim in this regard and also the evidence given by the victim’s female partner, who said that you and your children frequently abused her and called her particularly degrading names. I saw the victim’s partner describing your conduct. In this regard, I have no doubt that she was telling the truth and that the distress she demonstrated while giving the evidence was genuine.
You are not to be punished for pervious abuse of the victim, nor for your particularly nasty and demeaning abuse of the victim’s partner, but your previous behaviour sets the scene for your criminal conduct in December 2017.
During the late afternoon of 21 December 2017, you and your son walked down Story Street past the St Marys Hotel. Constable Chandler saw you and your son walk past the Hotel, and I accept his evidence that from your body language and the way you were walking, both you and your son were, in his words, “pretty agitated” and like you were “spoiling for a fight”. Mr Chandler also used another expression which is telling. He said he saw you “sort of steam past”.
It is obvious that you were in an aggressive frame of mind as you walked down Story Street toward the area on Storey Street where the victim and his partner lived. As you got to the area of the victim’s block of units, their puppy ran out to you and your son wagging its tail. You were shouting abuse at the victim and your son tried to kick the dog in the head. You were calling the victim “a fucking dog” and that sort of thing. You were also saying that you were going to bash him and kill the puppy. The victim told you to “fuck off” and leave him alone.
Constable Chandler directed you and your son to leave and, as you did so, you pointed at the victim and said words to the effect “I’m drinking tonight, you’re fucked, I’m going to get you”.
Constable Chandler was sufficiently concerned about your conduct to speak to the victim and suggest that he did not go out walking around the street that night. He suggested the victim stay inside. However, later that night the puppy needed to be let out. The victim let the puppy out and followed the puppy to the front of the units near the letterbox. You and your two sons were in the vicinity. One of your sons gave evidence and said you were out looking at Christmas lights. You mentioned Christmas lights in your interview with the police. I am highly sceptical of that explanation for you being on Story Street that night. You may have been out looking at Christmas lights, but I am sceptical that it was the Christmas lights that took you into Story Street that night, and the vicinity of the victim’s home. However, I cannot make any specific finding about that.
Regardless of the reason you came to be on Story Street in the vicinity of the victim’s residence, when he got to the vicinity of the letterbox he realised that stones had been thrown and that you and your son were on Story Street yelling out. He started to tell you to “fuck off home”. The victim’s partner locked the house and headed down the path to the front of the block of units. She could hear you and her partner yelling at each other. Your sons were throwing pebbles at the victim and his partner.
Concerned about stones being thrown at his partner, the victim moved to the middle of the road. A white utility was parked across the road from the entry to the victim’s block of units, and you and the victim ended up on either side of the utility dodging each other around the utility. Precisely what was happening at that point does not matter.
The victim’s partner had a view across the street, slightly to her left. A closer view was obtained by a witness who, on hearing the noise, had come out of her house onto the front verandah which was immediately adjacent to the footpath. The white utility was to her left and only a short distance away parked outside the next door house. The witness had known you all your life.
I accept the evidence of the witness that you were swearing at each other and chasing each other around the ute. The witness was unable to say who was chasing who. At the same time your son, who had been with you earlier in the day, was throwing rocks at the victim’s partner and you told him to go home. It appears likely that he walked away.
You and the victim came within arms-length and you raised your hand with an object in your hand, and brought it down to the side of the victim’s head. It was a large object. From the perspective of the victim’s partner, you threw the large object in a shot-put type of action. From the perspective of the witness, you brought your arm down with the object in your hand. The precise manner in which you caused the object to strike the victim does not matter. The object may have still been in your hand when contact was made, but it is more likely that you threw the object over a very short distance causing it to strike the victim to the side of the head. However you did it, I am satisfied you intended the object to hit the victim. Further, I am satisfied that you intended to wound the victim and to harm him.
It follows from what I have said, that I reject your version to the police that the victim threw something at you, after which you picked it up and tossed it over your shoulder in the direction of the victim. I also reject the evidence of your son to that effect.
The victim’s partner described the object as a large piece of concrete with a jagged edge. However, she did not give that description to the police when interviewed immediately after the events. I accept her evidence, however, that the object was quite large, perhaps not quite as large as a football. Whether it was a large rock or a piece of concrete I cannot determine because, immediately after the blow, you picked up whatever you had thrown and took it away with you. I reject your version, and that of your son, that the victim’s partner picked up the object. I am satisfied that you picked up the object in order to remove it from the scene. You were trying to get rid of the evidence.
The precise nature of the object does not matter. I am satisfied it contained a jagged edge. It caused a very serious wound to the victim’s left ear which the Doctor at the St Marys Community Health Centre described as “split into half involving helix, superior crus of antihelix across down to Cymba area”. The top half of the ear was, in effect, split in half.
The victim underwent an operation on 24 December 2017 which involved cleaning the laceration, making the tissue edges amenable to closing, and suturing by cutting off little bits of tissue likely not heal well and suturing the laceration. In addition to the injury to the ear, there was bruising behind the left ear.
Later that night, Constable Chandler tried to find you, but he was unsuccessful. Not only did you take the object with you in order to dispose of evidence, I am satisfied that you took steps to avoid being confronted by the police.
It is apparent from the facts that I have found proven, that I reject the version you gave to police in an interview conducted on 23 December 2017. I also reject the essential parts of the evidence of your son which was plainly tailored to support your version. At the time of giving evidence, your son was aged 15 and he falsely claimed that you did not yell at any time, either during the afternoon or during the events in question. He falsely claimed that he was throwing rocks of a size between a golf ball and a tennis ball at the victim, and that while he was doing so the victim said “you got me, you little cunt”. In this evidence your son was trying to suggest that his stone had caused the injury, and not an object thrown by you.
Your son also gave evidence that you picked up an object that had been thrown at you and tossed it over your shoulder. He claimed that nothing was said by you or the victim. Further, your son falsely claimed that whatever object was on the ground, it had been picked up by the victim’s partner and not by you.
Mr Jones, I am greatly disturbed by the fact that your son gave this false evidence to the Court, and in particular that he gave evidence of features that emerged from your interview with the police. Somebody must have told your son something about these features in order for him to falsify his evidence to match your version. I cannot make a finding that you put your son up to this, but it does not bode well for your son’s future. Not only have you provided an appalling example of how to behave, which he has copied, he has been prepared to lie for you in Court. As I said, I cannot make a specific finding about how this came about, and I emphasise that you are not to be punished in any additional way because your son lied for you in Court.
As to the impact of your crime, I have a victim impact statement which indicates that there has been a significant and ongoing impact. The statement is dated 22 October 2019. The victim still gets headaches and has to come into Launceston every three months for a check-up, which he finds stressful both emotionally and financially. In the statement, which I accept, the victim says that prior to this matter he was happy go lucky and used to be “a ball of laughs”. He was social, but now avoids going out socially. His family tells him that his personality had changed. He is angry and has lost confidence. He is now constantly afraid that someone will come into his street again and that he will be attacked and hurt. He is scared for his partner and for his dog.
Prior to your attack upon him, the victim and his partner were outgoing and enjoyed the outdoors. The victim describes his partner now as “like a hermit”. Of course, not surprisingly, worrying about how the incident has affected his partner has also adversely affected the victim’s health. If he goes outside now, he has to go alone and does not feel safe. The victim has also told me that he was working at the time of this incident, but he has not been able to work since that time. He was a boiler-maker, but now is unemployed. He sees you and your family around town and he feels like he is trapped. They have thought about moving, but do not want to do so because they love the premises in which they are living. As is so often the case, waiting for the trial has been exhausting and stressful for the victim and his partner.
Mr Jones, you can see that your criminal conduct not only caused a physical injury, but it has significant ongoing effects.
As to matters personal to you, you are aged 38 and you are the father of seven children. Your eldest child is an adult and from a previous relationship. You have six children with your current partner aged between 4 and 15 years. It was your eldest child who gave evidence. That is a partnership of 19 years.
Your counsel told me that your upbringing was unremarkable and you reached grade 10, and that you have lived your entire life at St Marys. Over the years you have had labouring type work, but your last employment was approximately 5 years ago. You have a close family who all support you, including your parents. Sadly, in August 2018 your father suffered a stroke and you subsequently moved into the family home with your family where you assist your father physically. Since you have been in custody the family has been required to hire lifting machines to help with lifting your father, and that is a sad and unfortunate consequence of your criminal conduct. Nobody else is to blame for that.
You accept that you have a poor record of prior violence and your counsel has told me that alcohol has been a common feature of your offending. You are anxious to amend your ways and you have managed to stay off alcohol during your period on bail, and you have even gone to the extent of asking pubs and the RSL to ban you. I hope that when you are released from your custodial sentence you are able to maintain that attitude and approach.
Mr Jones, this is not your first time before a Criminal Court. Your offending commenced in 1993 when you committed the offences of assault, and assault with indecent intent. In 1994 you committed the offences of trespass and stealing. All of those offences were dealt with in January 1995 by way of supervision orders. More supervisions orders were fixed in 1996 for offences of dishonesty committed in 1995 and, in 1997 you were dealt with for further offences of dishonesty, again by way of probation orders.
On 9 February 1998 you committed another burglary for which a sentence of 9 months’ imprisonment was imposed, 3 months of which was suspended. You committed further offences of dishonesty in 1999.
On 29 January 2000 you committed the offence of assault for which you were dealt with on 1 May 2001 in the Supreme Court. Following a day of drinking, in the course of which you threatened to burn down a residence where your former girlfriend, pregnant with your child, was temporarily staying, you were taken into custody where you behaved aggressively and bit a police officer on the arm. You asserted you had AIDS and made threats to a police officer who was assisting the victim of your bite. A sentence of 6 months’ imprisonment was imposed.
On 4 July 2003 you were sentenced for two crimes of assault of which you had been found guilty by a jury. The victim had asked your two underage friends to leave a hotel bar, together with your friend who had become abusive. You punched the victim to the side of the head. He did not see it coming. The victim punched you in response and you came off worst. With encouragement from your friend, you pulled a butterfly knife from your back pocket, opened it, swung it at the victim and stabbed at him. The sentencing judge described your production and use of the knife as “highly dangerous”. You were sentenced to imprisonment for 8 months. In the course of his remarks the sentencing judge observed that you had failed to learn your lesson from the previous sentence of 6 months, and on that occasion said that, once again, you had to suffer the consequences of you using violence. That was back in 2003 Mr Jones; we are now in 2019 and you still have not learnt your lesson.
Apart from traffic offences, it appears you stayed out trouble until 2010 when you were found guilty of three offences of assault and pleaded guilty to resisting a police officer. It appears there was some dispute about a mobile telephone and you grabbed the victim around the throat and pushed him into a wall, causing an injury to his left shoulder. You repeatedly said “don’t you know who I am, I’m Mike Jones”.
You then approached another victim and made a racist comment about his sister, after which you punched him to the left rib area. When the third victim pushed you away, you hit that victim in the left side of the face causing pain to his jaw. At least two of those victims were teenagers.
When police spoke with you, you denied being involved and said you were home all night. You were aggressive in your demeanour. Told you were under arrest, you yelled abuse and resisted accompanying the police. When police attempted to apply handcuffs, you were physically aggressive and thrashed around to avoid being restrained. On that occasion a short sentence of imprisonment was imposed, but that sentence was wholly suspended. Subsequently you breached that suspended sentence and you were re-sentenced in relation to that matter.
On that same occasion you were dealt with for an assault committed on 8 October 2010 when you followed a group from a hotel and verbally abused and head-butted one of the group to the face. Apparently that victim briefly lost consciousness.
In 2013 you breached a restraining order for which you were dealt with by way of a fine in 2015. Since that time there have been further offences of disorderly conduct, assault and abuse of police officers and, common assault. In March 2019 you were sentenced to imprisonment for 6 months in connection with your assaulting and threatening a police officer, part of which sentence was suspended on condition that you not commit another offence punishable by imprisonment for a period of 3 years. Those offences were committed after the offences with which I am concerned and, presumably, were committed while you were on bail for the matter with which I am concerned.
Mr Jones, I have outlined your prior offending in some detail because it tells me something about your attitude to physical violence. You have been sentenced and punished for those prior offences, and you are not to be punished again. However, that offending demonstrates that you have a problem with anger and aggression. You resort too easily to physical violence. As I said earlier, you have not learnt your lesson. There is a need to impose a sentence which, hopefully, will act as a personal deterrent to you. Previous court appearances and sentences have not had a successful deterrent effect, and it must be said that notwithstanding your efforts to abstain from alcohol about which counsel has spoken, your prior conduct, and the conduct on this occasion, suggest that your prospects of rehabilitation are not good.
It follows from your prior offending that you are not entitled to the type of leniency which can be afforded to a first offender. Nor Mr Jones are you entitled to the benefit that accompanies a plea of guilty. In regard to this matter, you have shown absolutely no sign of remorse. I am satisfied that you are not sorry for what you did. You resisted with your plea of not guilty in the face of a very strong case. In particular, the independent witness who saw the critical moments from her verandah, was a careful and accurate witness. I have no doubt that the jury accepted her evidence.
During the course of my sentencing remarks today, Mr Jones, there have been a number of occasions, while you were sitting in the dock, that you have shaken your head in obvious disagreement with the facts that I have stated. In particular when I spoke about the effects on the victim, you were shaking your head noticeably. It is obvious from your demeanour and actions in the dock that you do not accept some of this material, and it must be said that your actions in this regard have confirmed the view that I formed from all the evidence before me, that you have shown no remorse; and in fact, when it comes deep down to the question of what you did to the victim, while you may be sorry because you have been found guilty, you are actually not sorry for what you did by way of the violence you applied to him. But, as I said, I had formed that view before I saw anything of your demeanour and behaviour in the dock during the course of my sentencing remarks.
It hardly needs to be said that the type of violence in which you engaged is far too common in our community. In particular, violence used in response to any perceived insult has become far too common. Violence used in order to solve disagreements of the type that you have had with the victim in the past, is far too common. The community is gravely concerned by this type of violence and the community expects the Criminal Courts to do what the courts can to deter others in the community who might be tempted to resort to this type of violence. There is a limit to what the Courts can do, and the solutions start earlier. However, it is the duty of this Court to impose sentences which will, hopefully, act as a deterrent to others and will send the message that the community abhors this type of violence. Denunciation and appropriate punishment are important features of the sentencing process in this particular case.
You are convicted of both offences. I will impose a single sentence. As I do so, I repeat that I am satisfied that not only was the blow intentional, but you intended to wound the victim, and it is pure good luck that the victim did not sustain a life threatening injury. There are no mitigating circumstances accompanying the commission of the crime. The aggression and abuse you displayed that afternoon carried through to the events that night.
Mr Jones, you will be imprisoned for a period of 3 years and nine months commencing on 22 October 2019, and you will be eligible for parole after you have served 2 years.