STATE OF TASMANIA v STUART PETER MCGEE 12 AUGUST 2022
COMMENTS ON PASSING SENTENCE PEARCE J
Stuart McGee, you plead guilty to assault. I also agreed to deal with the associated summary charge of destroying property. At around noon on Friday 3 September 2021 the complainant, a 43 year old male, was seated in the driver seat of his car parked outside your home in George Town. You are the same age and there had been antagonism between you extending back to high school. As an adult you had lived interstate but following your return to George Town about three years ago his animosity towards you resumed. Of course I only have one side to the story but the facts you claimed are not disputed and I am to sentence you on the basis of them. You were a person who took it upon yourself to collect and dispose of litter in the local area. Knowing this, the complainant, in your mind solely motivated by spite, responded to your efforts by deliberately and repeatedly discarding litter near your house including on your lawn. On 3 September 2021 he again left takeaway food packaging and cigarette butts behind. Seeing him there you picked up the rubbish, approached his car and threw it through the open driver’s window towards his face. What followed was an exchange of abuse and a physical altercation. He grabbed your T-shirt. You pulled the seat belt which was around his body. You then punched him twice to the mouth. Had the matter stopped there then it is very unlikely that the assault would have resulted in charges to be dealt with in this Court. The complainant suffered a small cut and swelling to his lip without any other consequence or impact. However you attempted a third punch. This time you, intending to punch the complainant, mistakenly struck the perspex visor on the drivers’ window which shattered. The significance of this was not immediately apparent but it was later discovered that a small piece of perspex entered the complainant’s eye.
Coincidentally, there were police officers not far away who saw what was happening. At the police station you made a statutory declaration and admitted that you had punched the complainant. Three days later, after the complainant became aware of the injury to his eye, he also complained to the police. The injury was a very significant one. The cornea of his right eye was severely lacerated and required emergency surgery. He suffered a number of post-operative complications and has undergone multiple surgeries. The end result is that he has lost most of the sight in that eye. His visual acuity is only about 10% of its potential. That may improve with spectacles but he will never regain full vision. As is to be expected, the impact on his life is profound. He and his partner have suffered financially because of his reduced capacity for employment, and his personal life is also greatly impacted by the physical and psychological impact.
I accept that you did not intend or anticipate the type of injury suffered by the complainant. However you are responsible for the foreseeable consequences of your conduct even though the precise mechanism of injury in this case was not one which could readily be anticipated. Physical injury is almost always the foreseeable consequence of the intention application of force, or an attempt to apply such force. It is the impact of the injury suffered by the complainant which makes your conduct serious, in circumstances in which the assault would otherwise have attracted a substantially more lenient response. No sentence can ever make up for the damage to the complainant’s eye.
You have already suffered as a result of your crime. The antagonism directed towards you has not ceased. Something was thrown through the window of your rental property. Unwilling to put up with the potential impact on his property the landlord terminated the lease and you have been forced to live away. You are currently residing in a unit in a caravan park at significantly greater expense. You have some relatively old prior convictions for anti-social behaviour but none for violence. I would sentence you on the basis that violence is out of character for you and was prompted in this case by the particular circumstances of conflict with the complainant. I do not see any reason to suspect that the is much risk of a recurrence or that you pose any risk to anyone else. You entered an early plea of guilty and I am satisfied that you are sorry for what you did.
The circumstances of this crime do not require actual imprisonment. You were assessed as unsuitable for a home detention order, in summary because the author of the assessment had real concern, which I consider justified, about whether you could comply with the very onerous psychological and emotional demands of such an order in your present living circumstances. That is not a criticism of you. You maintain that you could comply but I do not wish to set you up to fail when an appropriate alternative is available. I will order a wholly suspended sentence with a requirement that you perform community service.
Stuart McGee, you are convicted on both counts on complaint 30170/22. On count 1, unlawfully destroying property, I make a compensation order in favour of the complainant, whose name will be specified on the formal order, in respect to the damage caused to his motor vehicle. I adjourn the further terms of that order to a date to be fixed. On the other count, that is, of assault you are sentenced to imprisonment for 10 months, wholly suspended for two years from today. It is a condition of that order that while it is in force you do not commit any offence punishable by imprisonment. If you breach that condition then a court must order that you serve that term unless it is unjust. I impose a further condition that, within the operational period of two years from today, you perform 105 hours of community service. The conditions which the law imposes on that order include that you must report to a probation officer at 111-113 Cameron Street, Launceston on or before 5.00 pm on Monday 15 August 2022, you must, during the operational period of the order, report to a probation officer as required by the probation officer and comply with the reasonable and lawful directions of a probation officer or a supervisor, you must not, during the operational period of the order, leave, or remain outside, Tasmania without the permission of a probation officer and you must, during the operational period of the order, give notice to a probation officer of any change of address or employment before, or within two working days after, the change. If you breach any of those conditions you may be brought back to court and re-sentenced.