STATE OF TASMANIA v BRODIE ANDREW JENKINS 23 NOVEMBER 2023
COMMENTS ON PASSING SENTENCE PORTER AJ
Brodie Jenkins, the defendant, has pleaded guilty to two counts of assault. The complainant is Geoffrey Price. At the time of the offending, he and the defendant were known to each other. On the evening of Friday, 7 August 2020, the defendant was at the home of a Mr Breen. The complainant lived close by. At about 7.40pm, Mr Price went to Mr Breen’s unit. While there, the defendant accused Mr Price of hitting his mother. Not made clear in the State’s facts but emerging later is that Mr Price seems to have been in a relationship with the defendant’s mother. Returning to the facts, it is not apparent who took hold of whom first, or why, but the two started to wrestle inside the unit. Mr Breen pushed them both outside through the front door, and the wrestling continued on the front lawn of Mr Breen’s home. During this fight, Mr Price ended up on the ground at which time the defendant punched and kicked him multiple times, saying “This is for punching my Mum”. The defendant then went back inside Mr Breen’s unit. Mr Price was then assisted to his feet by another neighbour who had arrived. He attempted to take Mr Price away but Mr Price resisted. He said he needed to find his dog. He returned to Mr Breen’s unit and went inside. Another altercation started, during which the defendant threw Mr Price to the ground and then kicked him to, or stomped on, his head three to four times, and then told him to get up, calling him a dog. Police arrived shortly afterwards. The defendant was arrested and taken to the police station but was released without charge after a forensic examination. On the same evening, Mr Price went to the hospital where he was assessed as having an orbital fracture to the left side of his face, severe bruising to the face and bruising to his left ear. Blood and clear fluid was seen to be leaking from his nose. Photographs show redness and bruising completely surrounding a rather closed left eye, and some bruising to the other side of his face and forehead. I have a victim impact statement. It seems Mr Price has suffered more emotionally than physically, although he says that his eyes take a while to adjust when he first gets up in the morning and he is slow to move while he waits for his medication to work. That medication is apparently for anxiety. He said he had to leave his home because the incident happened in his unit complex and he became fearful. He is cautious about telling people where he lives. He is hyper-vigilant at night and his feelings of fear and anxiety prevent him from simple activities, like walking the dog or watching football. He has become more isolated socially and only goes out to see the doctor once a month. He finds it difficult concentrating and he found the period before the matter resolved, distressing. I take into account the statement in its entirety.
The defendant is now nearly 31 years old. He has a recorded history of offending, commencing as a youth. Prominent is a conviction in April 2015 for the crime of attempted armed robbery. For that, he was sentenced to 15 months’ imprisonment wholly suspended on conditions for two years. In April 2017, he was re-sentenced on that matter following, it appears, a breach of a family violence order. The 15 months’ imprisonment was re-imposed but again suspended, this time on conditions for 12 months. In December 2018, he was convicted of three charges of breaching a family violence order and destroying property. The sentence was one of 14 days imprisonment, the execution of which was again suspended on conditions. Those conditions included assessment and treatment for alcohol and drug dependency, and submission to medical, psychological or psychiatric assessment or treatment as directed. There were further breaches of a family violence order which were dealt with in April 2019 giving rise to a 28 day suspended term. In June 2020, he was convicted of breaches of a family violence order, injuring property and three charges of common assault against a woman other the woman protected by the family violence order. These things together with an application to activate a suspended sentence led to a total of about 7 months’ imprisonment. He has not been of good behaviour since the incident with which I am dealing. In August 2022 and then in February 2023, he was convicted of a number of offences committed in September 2021 and September 2022 respectively. They included destroying property, a minor drug offence and contravening conditions of a notice for which he was fined, and in the latter instance, again made the subject of a 12 months’ community correction order, commencing 28 February 2023. That order, of course, is still in force. Lastly, it is relevant to note that in late August this year on a charge of breaching bail, a further community correction order was made, this time for 6 months to commence at the expiration of the current one. Ordinarily, such a record might be expected to attract a stern response in relation to further offences of violence. However, there are personal circumstances of some significance that need to be considered. I have a pre-sentence report and the benefit of submissions of counsel. The defendant is a disability support pensioner. Primarily, this comes about as a result of the effects of a closed head injury he suffered when he was about four or five years old. It appears this was a frontal lobe injury. I was told that his condition is such that, particularly with alcohol, he can become easily angry, act spontaneously and on impulse. Additionally, he has been diagnosed as suffering from anxiety and depression and is medicated for those conditions. He left school after Grade 9, completed some certificate courses in automotive studies at TAFE, but has not been able to find employment. In that respect he sees his conviction for attempted armed robbery, committed when he was 22, as a significant impediment in that respect. He is single and lives with his grandfather. He has an eight year old daughter from a previous relationship, but whom he has not seen for a number of years. He has had some encounters with illicit drugs and continues to use cannabis but of particular relevance is alcohol abuse. Alcohol consumption started when he was 14 with his consumption becoming problematic in his early to mid-twenties, when he became depressed at his situation.
Although there was some offending after these offences, this incident does seem to have had something of a salutary effect on him. The material suggests that in response to his actions on the day, the defendant started to address his problematic alcohol consumption and has removed himself from situations that may result in anti-social behaviour. He acknowledges that he was affected by alcohol and fuelled by anger regarding the reported assault against his mother. The defendant acknowledges that he went too far in his response on the day. He now basically stays at home and cares for his grandfather, who is 82, and for the property. Before this incident, he drank cheap alcohol every day and used the bulk of his pension for that purpose. He has now heavily reduced that consumption. The pre-sentence report confirms he has addressed his problematic alcohol consumption that he has been regularly engaging with a rehabilitation clinic, and is presently seeing a psychologist fortnightly under a mental health plan, with some seven sessions to go. He is recommended as suitable for a further community correction Order, including a period of supervision but is unsuitable for community service. As to the offending, it seems that Mr Price and the defendant’s mother had been in a relationship with, as I have noted, an allegation that he assaulted her during the time the defendant was in prison. That assault is not established as a fact, but I accept that is what the defendant believed. The defendant had been consuming alcohol whilst at Mr Breen’s unit and the complainant is reported as being inebriated. I was told by the defendant’s counsel, without dissent, that while at the door, Mr Price said something to the defendant who then asked about hurting his mother, at which point Mr Price went into the unit and went to where the defendant was sitting, and the two started to wrestle. I was told that during the course of the altercation outside, the defendant was bitten on the middle finger of his left hand, causing immense pain. Precisely how that came about is not clear. There is a photograph of an injury consistent with that. Such an injury might serve to explain, in part at least, the conduct the subject of the second count of assault.
The pleas of guilty admit the unlawful application of force in two separate incidents on the one event. Whatever the defendant’s belief and motivation, the application of such force and the result of the injuries, makes this a serious case, notwithstanding it arose from what seems to have been mutual grappling at the start. Kicking and stomping a person’s head are very dangerous things to do and it is perhaps fortunate that Mr Price was not much more seriously injured. The defendant’s intoxication is, of course, irrelevant. Factors of attempting to deter others from similar conduct, and attempting to deter this defendant from similar offending and offending generally, are important factors in the sentencing process. I take into account the defendant’s personal circumstances. I take into account the pleas of guilty. In strict chronological terms, they were not early pleas, but there were negotiations about the factual scenario to be put to the court, and the indictment was amended just before the pleas were entered. They have value in that they saved the expense and inconvenience of a trial. What particularly influences me in this case is that there finally seems to be some tangible prospects of the defendant’s rehabilitation. I accept that he has been given many opportunities in the past, which he has spurned. However, since the imposition of the first community corrections order, it seems clear he has finally demonstrated insight into the things that underpin his offending, and has taken active steps, and continues to take active steps, to correct them.
Mr Jenkins, I have set out the facts, the details of your relevant personal circumstances and the factors to be taken into account. I must say to you that this has been a close run thing, but in the end, I am persuaded that notwithstanding your previous disdain for court orders, with the assistance and benefit of the current community correction orders and a further order with supervision you should be given the opportunity to avoid immediate imprisonment and to show that you can in fact live in society without offending. I think you may rest assured that this will be the last chance you have to avoid going back to prison for a considerable period of time if you re-offend in any similar way. You are convicted of the crimes and sentenced to 15 months’ imprisonment, the execution of which is wholly suspended on condition you be of good behaviour for a period of three years. I make a community correction order. That will be for 18 months and it will start from today. Special conditions of the order are as follows:
- you must submit to the supervision of a probation officer as required by the probation officer;
- you must attend educational and other programmes as directed by a probation officer;
- you must undergo assessment and treatment for alcohol dependency or drug dependency as directed by a probation officer; and
- you must submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
You will have to report to a probation officer at 75 Liverpool Street by 5.00 pm tomorrow.
I need to provide you with a warning, although there is really no need for me to explain to you the consequences of a breach of the condition of a suspended sentence. Any breach leading to an application means that the sentence must be activated unless it is unjust to do so. I do need to point out to you that the condition is to be read literally. It refers to any offence punishable by imprisonment and there are many. Possession of cannabis is for instance, an offence punishable by imprisonment. You need to bear those things in mind.