STATE OF TASMANIA v BANJO MANSER 23 SEPTEMBER 2021
COMMENTS ON PASSING SENTENCE PORTER AJ
A jury has found Mr Manser, the defendant, not guilty of wounding but guilty of assault. I need to make findings of fact, an exercise that in this case presents some difficulties. The complainant is the defendant’s father, Stephen Manser. The charge arose out of an incident at the complainant’s home on 10 January 2020. The defendant grew up in the house, then moved out for a while, but returned for a few months in 2018 to care for his father who has some physical disabilities and illnesses. The defendant left in September 2018. The defendant’s parents had separated in about 2011, and there were unresolved issues about selling the house and finalising financial issues between the couple. The defendant was concerned about his father’s apparent reluctance to sell the house and provide his, the defendant’s, mother with funds to secure her own accommodation, as he thought had been agreed. With that in mind, he went to see his father in the early afternoon. From that point, there is a very marked difference in versions. According to the complainant, he was sitting at a dining table in a living area. He was speaking on the phone to a friend, Shane Mason, when the defendant came inside wearing a mask and carrying a meat cleaver. The complainant said the defendant was ranting and raving, saying something about he should have been out of the house by now and about a blue car but he could not understand the majority of it. He asked his son why he had the weapon and what was he going to do with it, but in cross-examination about this stage of things, he added that when the defendant first appeared he asked him how he was, and what the matter was. He said the ranting and raving went on for about 30 seconds to a minute. The complainant said that he had his hands on the table when the defendant suddenly hit him to the left hand with the cleaver, and then left the house. The complainant followed, and there was a verbal confrontation just outside the backdoor during which the complainant asked where his phone was, at which point the defendant threw it at him, hitting him in the forehead causing a small cut above the eye. The defendant then left. As to the phone, the complainant said it was on the table on loud speaker, and between his hands. He said that he did not see anything happen to it although he must have known that it was not there after he was struck, in order to ask the question of the defendant. In any event, the phone was badly damaged, consistent with it being struck with the cleaver. There is no dispute that the defendant then drove a short distance away, parked his car, called 000 to arrange for an ambulance and police, and waited for police to come to where he was. In the 000 call, he described an “attack”, saying he and his father were in the kitchen, he came at him and tried to punch him and he grabbed a knife and “just cut him.” The defendant gave evidence. He said when he went inside his father was in the kitchen. They talked about how the defendant had been, what he had been doing, and talked about his work “for a bit”. He started to talk to his father about the house sale settling affairs with his mother, and the complainant become angry and aggressive. He started to swing a walking stick at him using it so that the handle was effectively a club. The defendant deflected the stick with his hand at one point and then – becoming quite scared – grabbed the cleaver which was in a knife block. The complainant backed out of the kitchen towards the dining area but continued to swing the stick. The defendant said his retreat to the backdoor was effectively cut off, and he was struck a couple of more times with the stick. He said he was scared and did not know what to do so he swung the cleaver to try to put some distance between them. When he struck the blow he said the complainant was standing at the dining table so that it was to the complainant’s left, with the complainant’s hand on the corner of the table. He said that he did not see the phone at any stage, although in cross-examination he first said he not see it and did not hear his father speaking, but later said he remembered seeing it, but did not hit it. He denied being asked for the phone and throwing it. He left but quickly realised what he had done, and returned to see how his father was. He said the complainant started swinging the stick again so he left. He denied wearing a mask, and denied taking the cleaver with him to the house. Shane Mason gave evidence about being on the phone to the complainant at the relevant time. As they were talking, the complainant swore and said that there was someone who had come through the door with a medical mask on and a meat cleaver. Mr Mason listened on the phone for about 30 seconds and he recognised the defendant’s voice. He heard the complainant say “what are you doing Banjo”. He heard the defendant raving on about the complainant not helping him fix the car and not helping him out at other times. Mr Mason said that he heard a thud and then the phone went dead. He tried to call back two or three times but there was no answer so he got in his car and drove to the complainant’s home. Mr Mason said that immediately before or in the few seconds leading up to the phone cutting out, he heard the complainant say “what are you on about”, and the defendant saying “you did not help me when the car broke down.” There were other things said that Mr Mason could not pick up because the defendant was shouting. In cross-examination Mr Mason denied that he had not heard the reference to the mask and the meat cleaver but that he was told about these things later when speaking to the complainant. I note that the complainant initially told both Mr Mason and police he did not know who the offender was, and even persisted with that when told the defendant had admitted being responsible for the wound. The history between the complainant and the defendant was the subject of evidence in the trial and of course also remains relevant to mitigation and to the sentence generally. I will deal with that evidence now. The complainant denied using physical punishment to discipline the defendant when he was young, and when it was suggested that he was liberal in his use of physical punishment to discipline the defendant and his older sister he said there was only one incident. A number of specific incidents were put to the complainant. He agreed that when the defendant was about 17, he had an argument with the defendant which ended with him throwing a glass beer mug at the defendant’s head which caused the defendant to run and hide in his bedroom. The complainant admitted following him, kicking the closed door open, and then striking him to the head a number of times with the beer mug resulting in a hospital visit, stitches to the defendant’s head, and the police being called. The defendant said this argument started because the defendant’s car broke down and he arranged for someone else to tow it without calling his father. I note that the car was blue in colour. The complainant said he could not recall what it was all about. The complainant denied hitting the defendant with a piece of wood a few years later, after he refused to put him in contact with his mother, an incident the defendant gave evidence about. The complainant also agreed that about three years later he had gone to the defendant’s workplace in an aggressive mood to speak to him. He agreed that he had a walking stick but denied waving it around, and denied hitting the defendant with it although he agreed that police were called and he was escorted from the premises. The defendant gave evidence about this incident also. The defendant said his father was generally quite abusive and would become physical; if his father was unhappy about something he had done, he would beat him.
Of course, self-defence was the primary issue in the trial. In light of the directions given to the jury, the verdict is consistent with three scenarios. It is consistent with the complainant’s version but it means the jury was not satisfied beyond reasonable doubt that in those circumstances the defendant intended to wound or was reckless. It is also consistent with the defendant’s version, but in addition to not being satisfied about the required state of mind, the jury was either not satisfied that the defendant did not believe he needed to act in self-defence, or that the force used in response was reasonable. Ignoring Mr Mason’s evidence, the first possible factual scenario might seem the least likely of the views open to the jury. That is because it means the defendant entered the home as alleged, “ranting and raving”, and then struck his father on the hand within a very short period of time, but did so without the required state of mind for wounding. However, I am satisfied that the complainant was speaking to Mr Mason on his phone at the time the defendant entered the house. Mr Mason was not challenged in relation to his description of what he had heard, or the time that elapsed between when it would seem the complainant first noticed the defendant, and the phone going dead. There is no reason to reject his evidence or give it little weight. It is possible that the phone was broken by a blow or some other means, and then further things happened before the complainant was struck on the hand, but I do not regard that as likely. In my view, Mr Mason’s evidence and the damage to the phone makes the defendant’s description of what was said and done not reasonably possible. They cannot co-exist. Further, the evidence about what the defendant was saying included clear references to the argument about the car that led to the beer glass injury many years earlier. That suggests anger and frustration. In addition, although caution should be exercised as to the weight to be given to this evidence, photographs of the scene show a greater amount of blood on the table in the position the complainant says he was, and not on the other side of the table where the defendant says he was when the blow was struck. I do not overlook that the defendant said in the 000 call that he had been attacked and threatened, but I am satisfied that I should proceed to sentence on the basis of the first scenario as I have outlined. Having said that, it seems to me likely the complainant did or said something, or failed to respond to something said that triggered the attack, a matter that went unnoticed or undetected by Mr Mason. I have a victim impact statement from the complainant. This was a nasty hand injury which had to be treated by reconnecting tendons and the insertion of metal plates. The complainant describes some ongoing problems with his hand of some significance namely numbness and pain, but says that major difficulty he suffers is an emotional one arising from the fact that it was his son who had attacked him. He says he is deeply hurt but hopes the system can support the defendant in becoming a safer person.
The defendant is now 31 years old. He has a record of offending. Leaving aside traffic matters, there are convictions in October 2012 for three charges of assault – I assume arising out of one incident earlier that year – with sentence being an order for 70 hours of community service. There is also a conviction and fine in June 2013 for behaving in a violent manner. Although these matters are of some age they should not be completely overlooked. I have a pre-sentence report dated 14 September 2021, and a psychological report from Dr Hope dated 16 September 2021. As general background, the defendant completed grade 11 but seems to have some difficulties at school. He has worked in tattooing and body piercing but has not worked since this incident. He is presently living with his mother as a carer for her. He has two sisters with whom he has regular contact. He has not had, and does not have, any substance abuse issues. I was told that the earlier assaults when he had been drinking and of course, when he was much younger. It was put on the defendant’s behalf that the relationship with the complainant and the complainant’s behaviour towards him over the years has had a very significant impact on him and his emotional development. At this point I should return to the evidence. In my view, generally the complainant was not a particularly impressive witness. His answers were at times non-responsive and a little argumentative. I found his denial of general physical chastisement and about the particular incidents unconvincing. I prefer the evidence of the defendant about these things. Dr Hope says that the defendant’s psychological function has been significantly adversely impacted by the relationship. He says that it is likely that owing to the age of onset, the frequency, intensity and the nature of the experiences of violence, an implicit conditioning has occurred whereby the defendant’s threat detection and response programming has incorporated a high expectation of physical violence. As a result, he may misperceive the “threat-value” that a person poses. In Dr Hope’s view, the defendant suffers from a clinically significant anxiety condition. There has been an impact on the defendant’s senses of self, worth and safety. He has been under active treatment for anxiety and depression, having had some 17 or so consultations to date and he is to continue with this management regime.
The intentional application of force using a heavy sharp-bladed object is something that must be strongly condemned and general deterrence is an important factor. Resort to violence as a means of resolving disputes and grievances is unacceptable. The consequences of a wound and internal damage to the hand were reasonably foreseeable. The jury’s verdict negates an intention to wound or being reckless as to that, but I am satisfied the blow was struck in anger and/or frustration, much of it pent up over time. The defendant accepts that there is no prospect of any relationship with his father, and he finds that stressful. There is some mitigation arising from his actions immediately afterwards when he volunteered he was responsible for the injury, at a time when his father was claiming he did not know the identity of the offender, and from his general co-operation with police. I take into account the defendant’s general personal circumstances, and his ongoing voluntary pursuit of psychological assistance. All things considered, I think imprisonment is called for but I do not think the public interest is best served by its immediate execution. A degree of individualisation is warranted and suspension of the term is justified, but the sentence will involve some immediate impact.
Mr Manser, I have set out what I see to be the facts of the case and the relevant considerations. You are convicted and sentenced to 9 months’ imprisonment, the execution of the whole of that term is suspended on condition you commit no offence punishable by imprisonment for a period of 18 months. In addition, I make a community correction order for six months, a special condition of which is that within that time you satisfactorily perform 50 hours of community service. The core conditions of the order will be set out in writing. You must report to a probation officer at 3 Terry St Glenorchy by 5pm on Monday, 27 September 2021.