STATE OF TASMANIA v JUSTIN ANDREW LEARY 21 FEBRUARY 2022
COMMENTS ON PASSING SENTENCE JAGO J
Justin Leary you have pleaded guilty to one count of assault contrary to s 184 of the Criminal Code. On 7 February 2021 you cruelly assaulted your aunt, Ms Tania Bone, by punching her several times to the head, stomping on her head and by grabbing and applying pressure to her throat with your hand.
At the time, you were both residing at accommodation in Claremont. The two of you had been at a social function, celebrating your mother’s birthday. Your mother is the sister of the complainant. Ms Bone offered you a lift back to the accommodation. You accepted, but on the way, asked to be dropped off at the bottle shop. The complainant continued onto her accommodation. She was alone in her room and had been there for about 15 minutes when you entered. You had a bottle of whiskey with you. You got some glasses out of the cupboard, turned the stereo up and insisted Ms Bone scull a glass of whiskey and coke. She drank some of it but stopped. You insisted she keep going. She declined. You continued to insist she drink the alcohol and said to her “and then you’ll kiss me”. Your aunt was shocked by this comment given the family relationship. She slapped you to the face. You fell onto the bed laughing and then stood up and punched Ms Bone to the head. This knocked her to the ground. You sat on top of her and continued to punch her several times to the head. Each time you punched her you said something like “what’s my name” or “remember who I am”.
At one point you stomped on Ms Bone’s head whilst it was on the ground. You then grabbed her by the throat and squeezed. She felt unable to breathe. You said “you’ve got one minute and then you’re dead”. Ms Bone believed she was going to die and “played dead” hoping you would leave her alone.
Meanwhile another resident had heard noises and crying coming from Ms Bone’s room. That resident alerted the manager. The manager came into the room and observed you kneeling on the floor over the complainant.
An ambulance was called. Ms Bone was admitted to hospital for two days. She suffered bruised ribs, an injury to her right ear which required three stitches, a blackened and bloodshot right eye, bruising to the right side of her chin, bruising around her neck and bruising to the top of her right arm. She also lost a tooth. I have seen photographs of the bruises. They are very nasty. Ms Bone declined to make a victim impact statement because of her relationship with your mother, but I am satisfied the experience must have been most traumatic for her. I have no doubt she feared for her life as she said, given the brutality of your assault.
You are now aged 42. You were 41 at the time of the offending. You have a lengthy and concerning criminal history which commenced when you were a youth. You have a number of prior convictions for crimes of violence. You have over 10 prior convictions for assault, 6 prior convictions for assaulting a police officer together with convictions for other offences against police; many prior convictions for breaching a family violence order or police family violence order. You also have many, many prior convictions for offences of dishonesty, driving offences, bail offences and various other anti-social offences, including doing an act which caused pain to an animal. You have a large number of prior convictions for drug related offending also. In May 2019 you were convicted of aggravated burglary, Criminal Code assault and stealing. It related to you attending at your neighbour’s residence, forcing your way inside, assaulting your neighbour and stealing some prescription drugs. You were sentenced to a period of imprisonment of 1 year and 10 months, with a non-parole period of 11 months. You were on parole when this crime was committed, although I note it was due to expire on 11 February 2021. The sentence imposed for those crimes was the longest period of imprisonment to which you have been sentenced. It clearly did not have the effect of deterring you from re-offending in a violent way yet again. Your record of prior convictions is a reflection of your long-term addiction to both alcohol and drugs. You have been subject to a number of sentencing orders directed – at part in least – at encouraging your rehabilitation. It seems they have been unsuccessful.
Sadly, your upbringing was a very disadvantaged one. Your mother gave birth to you when she was only 15. She also has a long history of suffering with drug addiction issues. Your mother was unable to care for you and you were predominantly raised by your paternal grand-mother. You do not have a relationship with your father. You experienced learning difficulties at school. You also have a very extensive substance abuse history. The use of illicit substances and alcohol has been a long-term constant in your life. It seems to me there is a very real correlation between your substance abuse and your violent tendencies.
I have read and have regard to a forensic psychological assessment dated 16 December 2021. The report indicates the defendant has low cognitive function, most likely in the borderline range. A previous cognitive assessment completed in 2009 returned a full-scale IQ score of 79. The defendant does not meet the criteria for a formal diagnosis of an intellectual disability, but clearly has cognitive limitations. Such limitations may manifest in the form of poor behavioural regulation, impulsivity and poor problem solving. Additionally, the report indicates you have suffered two closed head injuries: one in 2006 and the second in 2008. It is noteworthy however your recorded criminal history reveals multiple instances of anti-social behaviour prior to either of these brain injuries. The report indicates the primary factors in your offending remain your heavy substance use and your anti-social personality traits. Your substance abuse history is noted as extensive. You began consuming large quantities of alcohol from your mid-teens. You were also using cannabis from a very young age and have been using the substance on an almost daily basis since. You have regularly used other illicit substances including methylamphetamine and amphetamine in various forms. I note you told the report’s author that you were highly intoxicated when this crime occurred and you have very little memory of the incident.
The fact you were on parole when this crime was committed, is an aggravating factor. Following your release on parole however, it does appear as though you attempted to engage in some rehabilitative measures. I have been provided with a letter from the Pastor of the Christian Family Centre Church which indicates that following your release from custody you had been engaging in the church’s Pies and Guys program and some work was being done to explore the possibility of you receiving support through the NDIS program.
I take into account your plea of guilty, although note the evidence against you was relatively strong. The guilty plea was indicated to the State in July 2021. The complainant knew then from an early point that she would be spared the trauma of having to give evidence in respect to the matter. I am told that even though you have scant recall of the incident, you instructed your counsel you wished to plead guilty so as to accept responsibility for your wrongdoing. You are sorry for the harm you caused to your aunt. Your plea of guilty facilitates the administration of justice and is deserving of weight, particularly at present when the COVID-19 pandemic is still causing considerable disruption and delay within our Court. It is also relevant, in my view, that you have pleaded guilty, knowing the inevitable outcome is a period of imprisonment, at a time when imprisonment is particularly harsh. It is notoriously understood that the prison is currently experiencing frequent and lengthy lockdowns and in-person visits are currently prohibited. Rehabilitation programs are not being delivered because of these lockdowns. Such circumstances impose an additional hardship upon prisoners. In my view, a prison sentence in the current climate has a greater punitive aspect associated with it, than one served when such restrictions are not in place. Given these factors, I accept your plea of guilty has greater mitigatory value than it might otherwise.
The plea of guilty aside, there is very little else that mitigates sentence. You have a concerning propensity for violence, particularly when affected by alcohol or drugs. Of course, it is trite to say you are not to be resentenced for your prior criminal history, but it means specific deterrence is an important consideration in the sentencing exercise. This was a brutal attack. There does not appear to be any real explanation for the level of violence, outside of your intoxication. The number of blows and where they were directed meant there was a high risk of serious harm. The pressure to the throat which affected the complainant’s breathing was particularly serious. She believed she was going to die. It was a very dangerous thing to do and demands condemnation. It is well understood that the application of pressure to the throat can quickly and easily result in very serious injury, and sometimes even death. It is most fortunate that it appears the complainant’s physical injuries have resolved without long term consequence. I doubt the same can be said about the psychological impact of your crime.
In my view, your criminal behaviour warrants a sentence of imprisonment in excess of 2 years. I intend to impose a lesser sentence because of your plea of guilty in the circumstances I have described. I will make allowance for parole given the efforts you made between your release in August 2020 and the commission of this crime, but the entirety of the circumstances demand you spend a significant period of time in prison.
Justin Andrew Leary you are convicted of the crime. You are sentenced to a period of imprisonment of 21 months. That sentence will be backdated to commence from 25 November 2021 to take into account periods of time spent in custody and not otherwise accounted for. I order that you not be eligible for parole until you have served 12 months of the sentence.