STATE OF TASMANIA v JUSTIN ANDREW LEARY 6 MAY 2019
COMMENTS ON PASSING SENTENCE PEARCE J
Justin Leary, you are to be sentenced on your plea of guilty to aggravated burglary, assault and stealing. At about 2.15 pm on Tuesday, 3 October 2017, you kicked at the front door of the unit occupied by Kondok Mario-Ring in North Hobart. You knew Mr Mario-Ring and had been to the unit before. Mr Mario-Ring had been asleep but heard the noise and opened the door. You stepped inside and began to punch and kick him. You demanded prescription drugs which you believed were in the unit, and fought your way up the stairs. You found and stole a bottle of valium, an anxiety medication, containing an unspecified number of tablets.
Mr Mario-Ring suffered scratch injuries to his hand, left wrist and forearm. The nail on his left ring finger was partially detached. His face and left ear was bruised and sore and he had a sore left knee. When the police arrived they saw that his head and hands were bleeding. Most of his injuries healed after a few days but were painful and swollen during that time. He has been psychologically affected as well. The attack must have been frightening and traumatic. His victim impact statement describes the type of effects which may be expected. The effects of his pre-existing mental illness were made worse and he has become more fearful and anxious.
Some mitigation arises from your plea of guilty, but it came very late and only after the trial commenced and a jury was empanelled. Mr Mario-Ring was briefed for the trial. However he was spared the trauma of having to give evidence and being cross-examined about the attack. To that extent you indicated a willingness to facilitate the course of justice, although the plea carries no indication of remorse. I do not see by the change of plea that you gave up any chance of acquittal. Apart from the plea there are no other mitigating factors.
You are now aged 39. You are in a relationship and have six children, but none are in your care. You have a very long record of offending which started when you were a youth and reflects your long-term addiction to alcohol and drugs. You have been to prison many times. You have committed many offences of dishonesty and violence: on my count 11 for trespass, 27 for stealing or motor vehicle stealing, 5 for burglary, 6 for aggravated burglary, 20 for assault, 6 for assaulting a police officer and 10 for breaching a family violence order or police family violence order. In addition there are many other convictions for resisting police, bail offences, alcohol and drug related driving offences, drug offences and anti-social offences. You were subject to a suspended sentence when these crimes were committed. At the time your addiction was particularly serious. You were heavily abusing amphetamines of most types as well as other drugs. While you spent some time in custody in 2018 before being granted bail, it is only the enforced abstinence since your remand in custody for other matters on 13 March 2019 that you have obtained some treatment and your health has marginally improved.
These crimes constitute a breach of the six week suspended sentence imposed by a magistrate on 17 October 2016. I must activate that sentence unless it is unjust. Your counsel submitted that it would be unjust to activate the sentence because the crimes were committed towards the end of the 12 month period for which the term was suspended. I do not agree. The period of suspension is not a particularly long one. It was imposed for an assault and did not stop you from re-offending. I will take the activation of the sentence into account in determining the total sentence and the non-parole period. Given you have apparently responded to treatment I will allow eligibility for parole on the principal sentence. If you are granted parole your return to the community can be supervised and you would be subject to the possible revocation of parole.
Your counsel also submitted that the assault and aggravated burglary you committed are not serious examples of those crimes. Whilst it is not difficult to think of more serious cases, your crimes are nevertheless serious. You invaded the home of another man and inflicted considerable violence on him for no reason other than to steal from him drugs not prescribed to you to feed your addiction. Your counsel submitted that you were agitated because you had purchased drugs you had not received. If that is true, Mr Mario-Ring’s motivation in supplying you with an anti-anxiety medication has not been stated. Whatever is the case, it is no excuse for violence and does not lessen your culpability. These were not spontaneous crimes, and the assault involved multiple repeated blows inflicted when Mr Mario-Ring was asking you to stop. You resorted to the violence necessary to achieve your aim to obtain the drug. You are not to be punished for your past offending, but, taken with the nature of this crime, it indicates a strong need to protect the public. You spent 82 days in custody attributable to this matter in 2018 and remained in custody since becoming due for release from another sentence on 20 March 2019. The commencement date of the sentence will take all of the pre-sentence custody into account.
Justin Leary, on the application concerning the six week suspended sentence, I activate that sentence and order that it be served commencing 28 December 2018. To ensure overall adequate punishment I order that you not be eligible for parole on that activated term. On the indictment, you are convicted on each count. I impose one sentence. You are sentenced to imprisonment for one year and ten months cumulative to the term just activated. I order that you not be eligible for parole until you have served eleven months of that sentence.