STATE OF TASMANIA v JOSHUA LUKE McDONALD 6 DECEMBER 2019
COMMENTS ON PASSING SENTENCE PEARCE J
Joshua McDonald, you plead guilty to one count of perverting justice. The circumstances of your crime are unusual. At about 6.30 am on 18 May 2019 Timmothy Gardiner came to your unit in Blyth Street, Ravenswood. He had with him a homemade firearm. He was a frequent visitor of yours and you had seen him with this firearm a few days earlier. On this morning he showed it to you again. As he attempted to put it back in his pocket he dropped it, and it discharged, shooting him in the side. After saying he thought he had been shot he ran to his mother’s house nearby. He arrived just before 8.00 am. The police and ambulance were called but, most regrettably, he died from his injury.
After Mr Gardiner left your unit, you put a sock on your hand and moved the firearm from where it had fallen on the floor to near Mr Gardiner’s bag. That act does not form part of the charge against you. The charge arises from what you told the police when they came to speak with you. You made a statutory declaration which was false to the extent that it included the statement that Mr Gardiner left your unit on his bicycle and that you only became aware that something was wrong when you passed his mother’s unit and heard screaming and crying and went in to find him injured and struggling to breath. However the truth quickly emerged and the investigation was not delayed for very long. You were interviewed the same day and gave an honest and full account of what had taken place. You told them that you moved the gun and lied because you were afraid you were “going to get done for it.”
The crime of perverting justice may be committed in various ways. Common examples are when offenders seek to divert the investigation and prosecution of a real crime he or she has committed, or act to have another person charged with a crime that person did not commit. In order to maintain the integrity of the criminal justice system, sentences of imprisonment are usually imposed. However, you did not do either of those things. Out of panic, and in the traumatic circumstances of your friend having been shot in your home, you lied from fear of criminal proceedings against you, even though everyone now agrees there was no basis for any such proceedings. That does not excuse your dishonest intention. It is enough for this offence to be committed if you contemplated charges against you and acted intending to prevent that from occurring. No doubt what you did also added to the trauma Mr Gardner’s mother and the rest of his family experienced by, if only for a short time, keeping them from the truth about what really happened. However, the fact that there was never a true basis for any charge against you reduces the seriousness of what you did to a considerable degree. You lied fearing an unjust and false allegation, not a true one.
You are now 34. You pleaded guilty at an early stage. You have apologised to Mr Gardiner’s family. His death has also been difficult for you. You are in full time employment in farming and have recently commenced study directed at obtaining a qualification in aged care. You have some record for dishonesty but for the last ten years your only record has been for driving and minor drug offences. I think that the inherent seriousness of this crime necessitates a conviction, even though it would be unfortunate if that restricted future employment. The circumstances of this case do not warrant imprisonment, suspended or not, or even community service. I think that beyond a conviction all that is required is that you enter into an undertaking to be of good behaviour.
Joshua McDonald are convicted. I adjourn the proceedings for two years and, on you giving an undertaking to be of good behaviour for that period, I order your release. If you breach that undertaking you may be brought back to court and re-sentenced.