STATE OF TASMANIA v CHRISTOPHER McCULLOCH 9 AUGUST 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr McCulloch, a jury has found you guilty of one count of assault.
On 9 March 2017, you were in the gaming area of the Queen’s Head Inn at Perth, in company with your wife and members of her family. Your wife became involved in an argument with a female in relation to the reservation of a poker machine. During the course of the argument, the other female pushed your wife, and the argument then escalated into a physical conflict. The complainant, who was the partner of the woman arguing with your wife, came over and attempted to pull his partner away from the conflict. You then became involved. You grabbed the man by the throat, pushed him backwards and then punched him twice to the face. You claimed in evidence that you had acted in defence of your wife, because the man had lunged for her and you believed he was about to attack her. The jury’s verdict is consistent with alternative bases of liability. The first is that you were not acting in defence of her at all, but rather punched the man as an act of aggression, and perhaps in retaliation for him touching your wife. The alternative basis is that you did act in defence of her, but used excessive force in doing so. On my assessment of the evidence, I am not satisfied beyond reasonable doubt that you were not acting in defence of your wife as you claim. Accordingly, I intend to proceed on the basis that you did believe that the complainant was in the process of attacking your wife and that you acted to defend her, but in doing so used force which went beyond what was objectively reasonable in the circumstances.
This conclusion is consistent with my assessment of the evidence and, in particular, my observation of the event on the CCTV footage. The whole incident occurred very quickly. I accept that you had little, if any, opportunity for calm reflection. When the CCTV is slowed down, it can be seen that the complainant is not attacking your wife, but rather trying to disengage his partner from her. However, I accept the reasonable possibility that, at the time and in the frenetic and momentary circumstances in which you acted, you believed that his actions did constitute an attack on your wife and that you reacted spontaneously to that attack. However, I also accept Mr Ransom’s argument that your initial reaction in pushing him by the throat against a poker machine had effectively removed him as a threat to your wife, and this action was all that was required as a reasonable response to the threat as you believed it to be. The punches to the face, delivered immediately after you pushed him back, were simply unnecessary and constituted unreasonable force. These conclusions are consistent with the jury’s verdict and I will assess sentence on that basis.
The complainant did not lose consciousness as a result of the assault. However, he suffered a mildly displaced fracture of the bones constituting his left cheekbone, together with associated bruising which manifested as a black eye. There was also a small haemorrhage into the left eye. He underwent an operation to restore the cheekbone to its proper position, but did not require any significant time in hospital and it would seem has made a full recovery. He has not provided a victim impact statement.
You are 33 years of age. You live with your wife and two children, a stepson aged 10 and your daughter aged 2. Apart from a sentence imposed on you in 2016, your criminal history is unremarkable. The sentence in question was imposed on 9 February 2016, for numerous and diverse offences. It was a sentence of 12 months’ imprisonment, of which approximately 10½ months was suspended for two years. Your commission of this crime constitutes a breach of the terms of suspension, and an application has been made by the prosecution for the suspended sentence to be activated. By law, I am required to activate that sentence unless I am of the opinion that it would be unjust to do so.
The commission of a serious crime of this nature during a period of suspension would normally lead to the conclusion that it is not unjust to activate the suspended sentence. However, in this case, I have been persuaded that it would be unjust to activate that sentence. The principle reason for that conclusion is that there is cogent evidence that since serving that short period of imprisonment in early 2016, you have genuinely committed yourself to rehabilitation and to leading a law abiding life. It is clear from what I have been told about your conduct in that intervening period, that the suspended sentence has had the intended effect in respect of your rehabilitation. In particular, the sentence was imposed for a variety of offences committed by you when you were subject to an addiction to methylamphetamine. You had developed this addiction relatively late in life, and I have been given material today which would suggest that it was developed in quite extraordinary circumstances concerning the suicide of your friend. However, as is often the case with that highly addictive drug, you quickly developed an addiction and turned to crime to support and facilitate that addiction. It seems that your short time in custody was a wake-up call for you. Upon your release, you and your family went to live in Western Australia, where, with the help of a friend, you obtained work. Eventually, it would seem that you were able to overcome the addiction. You were actually living in Western Australia at the time of commission of this crime, but have since returned to Tasmania. You are still in employment. References from your respective employers in Western Australia and Tasmania confirm that you are leading a life of good character, committed to your family and to your employment, and are otherwise a productive member of the community. There is no evidence of ongoing drug taking and, apart from this crime, you have not committed any further offences since the suspended sentence was imposed on you.
Your response to this crime is consistent with that view of your reform. After it happened, you left the premises immediately and without further incident. I accept that your intention was to ensure that there was no further trouble, including that potentially emanating from your wife or members of her family. You were not interviewed in relation to this matter for almost 12 months. When you were, you co-operated fully with police. You admitted your role in the incident and expressed remorse, which I believe was genuine. Of course, you did not accept criminal responsibility, but this reflects your opinion as to the reasonableness of the force used by you, and is not inconsistent with a level of remorse.
Apart from a common assault committed by you when you were in the grip of your drug addiction in 2015, you do not have a history of violence. Your culpability in respect of this crime, as serious as it is, involved a momentary lapse in judgment. The question for me is whether that the consequences of that lapse in judgment should include those which may have the effect of interfering with, and potentially adversely affecting, the path of rehabilitation chosen by you. I think the answer to that question, as a matter of justice, must be no. The crime you committed was objectively serious, because it was a brutal act of violence committed in a public place, and had serious consequences for the victim. Further, any blow to the head has the capacity to cause serious and sometimes even fatal harm. General deterrence is an important sentencing consideration. Notwithstanding this, your personal culpability is mitigated to some extent by the fact that you were acting, initially at least, in lawful self-defence but, by delivering the punches, you have used excessive force.
Ultimately, however, when I take into account all relevant considerations, including in particular, your rehabilitation, my conclusion is that the community will be best served by having you successfully continue with that rehabilitation into the future. The period of suspension was completed some time ago. My conclusion is that it would be unjust to activate the sentence, and I intend to take no further action about that matter.
However, you must, of course, face punishment for committing the crime of assault. In my view, general deterrence requires the imposition of a sentence of imprisonment. However, in view of your personal circumstances, those which I have referred to, which include your lack of a prior history of violent offending and the need to encourage you to continue with rehabilitation, I am satisfied that it is appropriate to wholly suspend the sentence which I intend to impose. However, I will require as a condition of suspension that you perform community service.
Accordingly, the orders I make are as follows:
1 You are convicted of the crime of which you have been found guilty.
2 You are sentenced to a term of 9 months’ imprisonment. The whole of the sentence will be suspended for a period of 24 months on the following conditions:
(a) That you are not to commit another offence punishable by imprisonment during that period.
(b) That you will perform community service for a period of 182 hours. The Court notes that the sections referred to in s 24(5A) of the Sentencing Act apply to this condition. For the purpose of those provisions:
(i) you must report to a probation officer at the office of community corrections in Launceston within 3 clear days of today; and
(ii) the operational period of the order is 24 months.
I make no order in respect of breach of the suspended sentence imposed on 9 February 2016.