STATE OF TASMANIA v MATTHEW STEVEN McCULLOCH 27 JANUARY 2022
COMMENTS ON PASSING SENTENCE MARSHALL AJ
Mr McCulloch was found guilty by a jury of the offence of assault. I formally convict him of that offence. There was one count on the indictment. The particulars of that count stated “That in Hobart in Tasmania on or about 26 December 2018, [the accused] unlawfully assaulted [the complainant] by punching him several times to the face, gauging with fingers and by striking him with [his] elbow”.
On 30 July 2021, I made findings of fact, published to the parties only, finding that an assault had occurred by virtue of Mr McCulloch striking the complainant with his elbow but not otherwise as stated in the particulars. However I acknowledge that Mr McCulloch initiated the physical altercation by landing a glancing blow to the face of the complainant which although not injuring the complainant led to the ensuring struggle between the two men culminating in a strike to the complainant’s face by Mr McCulloch with an elbow causing physical pain and injury as well as psychological damage.
The two men came across each other at a food, beverage and music venue in Salamanca Place called “Cargo”. Mr McCulloch extended his hand to the complainant as a peace gesture given that there had been conflict between the complainant’s group of friends and Mr McCulloch and his group of friends in the past. The complainant brushed Mr McCulloch’s hand away. Mr McCulloch reacted angrily and threw a punch at the complainant. The complainant described the punch as a glancing blow to his chin which did not hurt him. The men then grappled with each other and soon were wrestling on the ground.
In my findings of fact, I was not satisfied beyond reasonable doubt that Mr McCulloch struck the complainant several times to the face as distinct from one glancing blow. I was also not satisfied beyond reasonable doubt that Mr McCulloch eye gauged the complainant. However the assault by elbow was a serious assault. The complainant’s face was split open and he bled profusely. The complainant did not leave his home for three weeks after the incident because of the way his severely damaged nose looked. He said in his victim impact statement that he suffered anxiety as a consequence and he does not go out to venues like “Cargo” where overcrowding occurs but now prefers to socialise at home or at the homes of his friends.
I take into account in sentencing Mr McCulloch the psychological injury to the complainant as well as the physical suffering. However in doing so I bear in mind the concern expressed by Crawford CJ in Belbin v Bennett [2011] TASSC 23 at [37] where his Honour said:
“I have no doubt that the contents of many victim impact statements are influenced by the emotional feelings of the victim, his or her dislike for the offender and a desire for retribution”.
His Honour went on to observe that those comments apply particularly to psychological injuries and difficulties arising from a crime. He also noted that such statements are “never on oath” and that “they require particular caution before they are wholeheartedly accepted”.
It is clear that the dental damage caused by this assault will require regular repair to the complainant’s front teeth for the remainder of his life. It is also an aggravating factor that the assault occurred at a time when a crowd controller had just separated the complainant and Mr McCulloch and the complainant was entitled to expect that he was not in any immediate danger of being assaulted.
Mr McCulloch has only one relevant prior conviction. Going back almost ten years he has little to do with criminal courts. That was the time when he met his current extremely supportive partner who helped him turn his life around and reduce his alcohol intake.
That one relevant prior offence was also for assault. It brought him to the Magistrates Court on 26 September 2018, three months prior to the assault in the current matter. A magistrate sentenced Mr McCulloch to a term of imprisonment of six weeks fully suspended for a period of two years.
That offence occurred on 25 June 2017, just on eighteen months prior to the current offence. The complainant in that matter was a friend of the current complainant. The incident also occurred at “Cargo”.
It is notable that the current incident the subject of the current offence occurred after Mr McCulloch saw the complainant from the 2017 incident and was leaving the venue as a consequence. However Mr McCulloch could not control his anger at the slight given to him by the current complainant when trying to do the right thing and remove himself from the presence of the former complainant.
Mr McCulloch was subject to family violence from his father throughout his childhood. His mother left the family home when he was four years of age. He currently has a good relationship with his father and step-mother as well as his older brother.
He is in a relationship with a very supportive partner who is an extremely responsible and level headed person. The relationship is over nine years old and has been, on the whole, a very positive one.
Mr McCulloch has a 16 year old daughter from a previous relationship. The child was born when Mr McCulloch was quite young. He has limited contact with that child.
Mr McCulloch is 35 years of age and was 32 years of age when the assault the subject of this sentence occurred. It was the first time he had been charged with an offence in this Court’s jurisdiction as distinct from the Magistrates’ Court.
Mr McCulloch and his partner reside at [address] and have done so for the last nine years. His partner owns the property. He is self employed and operates a landscaping business in which he works up to 60 hours per week. He has had no significant periods of unemployment. He has been recommended as appropriate for consideration for a home detention order by Community Corrections Tasmania and as a consequence has secured employment with a painting business in circumstances where that employer is willing to engage him for the entire term of any home detention order.
Mr McCulloch had a significant mental health issue several years ago and has had a relapse in recent years. However he has largely recovered and now only has occasional anxiety issues. He no longer has a problem with alcohol, although he was affected by alcohol at the time of the assault for which he is now being sentenced. That does not excuse his conduct but it helps to explain it. He has subsequently since the time of the offence which is now over 3 years ago, removed himself from social settings where the complainant and his group of friends are also likely to be in attendance.
Mr McCulloch has been assessed as suitable for home detention and consents to such an order as does his partner. I am satisfied that it is appropriate for a home detention order to be made in respect to this offending, but for making such an order I would have ordered a term of imprisonment for at least six months, notwithstanding that is likely that it would have been fully suspended. In all circumstances a 15 month home detention order is appropriate. But for the prior conviction for assault a home detention order of 12 months duration would have been made.
In addition to the core conditions of the home detention order usually made I will order that the following conditions be imposed:
- He must during all of the operational period of the order submit to an electronic monitoring, including by wearing or carrying an electronic device.
- During that period he is required to submit to electronic monitoring.
- He must not remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
- He must not allow anyone else to remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
- He must comply with all reasonable lawful directions given to him in relation to electronic monitoring including in relation to the installation, attaching and operation of a device or system for the purposes of electronic monitoring by:
- A Police Officer
- A Probation Officer or prescribed officer
- Another person whose functions involve the installation and operation of the device or system used for the purposes of electronic monitoring.
The following special conditions are also imposed:
- He must during the operational period of the order remain at [address] at all times unless approved by a probation officer.
- He must attend the Community Corrections Office at Glenorchy for induction to this order. He must attend the service for induction during normal business hours and in particular 10am tomorrow morning.
I also order a period of 15 months community service in which a period of 70 hours community service must be performed at weekends. Mr McCulloch is to report to Community Corrections at 10am tomorrow morning for participation in weekend community service.
I finally order that Mr McCulloch enter the EQUIPS aggression program on a community based supervision order of 15 months. The formal order in that regard is “Mr McCulloch must attend and participate in the EQUIPS program as directed for a period of 15 months”.
The sentence imposed in this matter is sufficient to address the principles of general and specific deterrence as well as denunciation while taking into account the ameliorating and aggravation features expressed above.
The State has made an application for the activation of the suspended sentence imposed by the Magistrate in 2017. Under s 27(4B) of the Sentencing Act, I am compelled to activate that sentence unless I am of the opinion that it would be unjust to do so.
The State points out that the 2017 offence was against a complainant in the same friendship group as the 2018 complainant and also occurred at “Cargo”. The new offending occurred only 3 months after the order of the Magistrate. However much time has passed since then due to the COVID related delay in the trial coming on for hearing but also due to a successful application by Mr McCulloch to adjourn the proposed trial to enable him to engage in highly specialised work on the mainland.
Under s 27(4C) of the Sentencing Act if the Court is of the opinion that the activation of the suspended sentence would be unjust it may activate only part of the suspended sentence or impose a substituted sentence in place of the suspended sentence or vary the conditions on which the execution of the sentence was suspended, including by extending the period of suspension.
In all the circumstances, given the lack of criminal behaviour by Mr McCulloch since December 2018, the support of his partner, the gainful employment of Mr McCulloch and other matters to which I will shortly address, I consider that an immediate six week term of imprisonment would be an unjust outcome. I believe that the imposition of a six week sentence of imprisonment of Mr McCulloch would now be most unjust. It is likely that Mr McCulloch, under current circumstances would be more likely than not be exposed to a COVID transmission, be subject to prison overcrowding due to current staff shortages and also potentially be exposed to a disproportionate time in lockdown as well as being subject to associating with people who would possibly be a bad influences on him for a six week period.
At the time of the imposition of the suspended sentence the Magistrate did not have the benefit of the sentencing option of home detention. If that option was available a prison sentence, albeit suspended, would not have been an option of last resort.
It is accepted in some jurisdictions such as Western Australia (see s 86 of the Sentencing Act 1995 WA) that sentences of imprisonment of less than 6 months can been extremely harmful to the individuals concerned as well as society.
In this case, Mr McCulloch has kept out of trouble since December 2018. His efforts at rehabilitation help to justify a conclusion that the activation of the suspended sentence would be unjust. The fact of the previous sentence is not lost in the sentencing process. As discussed earlier, a lesser period of home detention would have been ordered but for its occurrence. Although Mr McCulloch should not be punished again for the prior offence, it is an aggravating factor in considering the current appropriate penalty for the current assault.
So that Mr McCulloch can be reminded of the need not to repeat the sort of behaviour that has resulted in him being in his current predicament, I inquired with counsel whether I had the power to extend the expiry of the suspended sentence notwithstanding it had expired. The Sentencing Act is silent on that point. No issue was taken by counsel with my power to do so. To do so would be in the interest of justice. Accordingly, I order that the operation of the suspended sentence imposed by the magistrate be extended for a further period concluding 12 months after the jury’s verdict in this matter, pursuant to s 27(4C)(c) of the Sentencing Act. The term of the suspended sentence is extended to 29 July 2022.
In so doing, I realise there are aspects of this matter which would usually tend in favour of an activation of the suspended sentence. In that regard, there is short period of time between the first sentence and the subsequent offence, the location of the offending and the nature of each complainant, as well as the identity of the crime.
These matters, while significant and relevant, do not outweigh other factors raised in these comments which are in favour of the view that I come to, that activation of the suspended sentence would be unjust in all the circumstances. I reject the application by the State to activate the suspended sentence.