COMMENTS ON PASSING SENTENCE                                                         JAGO J

Michael William Keogh, you have pleaded guilty to two counts of Criminal Code Assault.  On 30 April 2020 you attended a social gathering at the complainant’s residence.  Both of you were consuming alcohol.  Later in the evening you, the complainant and others went to another gathering at another residence and continued consuming alcohol.  At some point during the evening you began to accuse the complainant of having assaulted your mother years earlier.  It seems you were fixated on this issue and, at one point, you asked the complainant to go outside.  Whilst out there, you struck the complainant with a closed fist whilst he was not looking at you and not expecting any violence.  This is the first count of assault.  The complainant collected his belongings, left the residence and began to walk home.  You followed him.  There was absolutely no need for you to do so, but it seems by this point you were becoming rather agitated about the allegation you were levelling at the complainant.  Upon realising you were following him, the complainant responded by throwing you against a wall.  You received some abrasions as a consequence.  The complainant resumed walking home.  You persisted with your endeavours and again approached him.  By this time, obviously concerned, the complainant approached a nearby vehicle.  The vehicle, by chance it seems, was being driven by your mother.  A scuffle ensued between you and the complainant.  You struck the complainant.  At one point the complainant pulled your shirt over your head.  He let you go and your mother yelled at you to get into the vehicle.  You did not do so.  Instead, you again approached the complainant and began to hit him.  The complainant fell to the ground, and whilst he was on the ground you struck him multiple times.  He became unresponsive and you dragged him from the roadway.  You left him there, unattended and without immediate assistance, and left in your mother’s vehicle.

Fortunately the complainant was able to yell out and gain the attention of others.  He was taken to a nearby residence and an ambulance was called.  The complainant sustained the following injuries: left and right hand abrasions; a swollen and bleeding nose and swelling to his right thumb.  This was later revealed to be a fracture of his right thumb.  It seems the main of the injuries resolved without medical intervention but the right thumb continues to be troublesome for the complainant.  I have read his Victim Impact Statement.  He describes continuing to experience both pain and numbness in his thumb and having no strength in it, which limits his ability to perform some actions, like holding a mug, with his right hand.  He is no longer able to play football, which is a social activity he previously enjoyed.

You are 24 years of age.  Your past criminal offending is limited.  In March 2021, whilst you were on bail for these crimes, you were convicted and fined in respect to an offence of using abusive language to a police officer.  Other than that, there is nothing of relevance by way of prior conviction.

You have one child whom you regularly see.  You have fulltime employment and have continuously held positions of employment since leaving school.  Your plea of guilty to these crimes was entered the morning the trial was due to commence.  Your counsel has indicated that part of the reason for the delay is attributed to difficulties he had in obtaining instructions, given you live on the West Coast.  You are not entitled to the full benefit that might flow from the early entry of a plea of guilty.  The complainant had been briefed and was expecting to have to give evidence.  His Victim Impact Statement indicates he found the thought of that stressful. It is still relevant, however, that the complainant was not ultimately required to give evidence. Your pleas of guilty are also indicative of your willingness to take responsibility, albeit at a late stage.

It goes without saying that the use of violence to settle grievances, real or perceived, is simply unacceptable.  The exhibition of that violence on a public street is aggravating.  Drunken assaults, late at night, occur far too frequently.  Striking another person particularly after the consumption of large amounts of alcohol, such that there is little control or understanding of the level of violence inflicted or the potential consequences that might flow, is inherently dangerous.  All too commonly, courts deal with situations where drunken violence leads to very serious consequences.  General deterrence and denunciation are prominent factors in the sentencing exercise.

I accept that violence is out of character for you.  Your reaction on this occasion seems to have been prompted by excessive alcohol consumption and your fixation on what you believed had happened to your mother.  I do not consider that there is a substantial risk of re-occurrence.  Nevertheless the objective seriousness of your crimes requires the imposition of a sentence of imprisonment.  The message must be received by both you and the broader community that drunken violence will not be tolerated.  There are, however, good reasons which weigh against making you serve that period of imprisonment immediately.  In particular, I note your lack of relevant prior convictions, your employment and your solid prospects for reform.  I intend to impose a wholly suspended period of imprisonment.

Michael William Keogh, you are convicted of both crimes.  I impose one sentence. You are sentenced to a term of imprisonment of six months.  The whole of that sentence will be suspended for a period of 18 months on condition that you are not to commit any offence punishable by imprisonment during that period.  I need to explain to you Mr Keogh that if you do, in fact, commit any offence punishable by imprisonment – and I emphasise the word “any” during the period, you can be brought back to this Court and an application made that you serve the period of imprisonment.  The law is that a judge must activate the sentence unless it is unjust to do so.  I make a compensation order in favour of David McCarthy, the terms of which will be adjourned sine die.