McKENZIE H G

STATE OF TASMANIA v HARLEY GEORGE McKENZIE                     21 MAY 2021

COMMENTS ON PASSING SENTENCE                                                         GEASON J

Mr McKenzie you have pleaded guilty to a charge of assault contrary to s 184 of the Criminal Code.

 The facts are that on 11 January 2020 the complainant was in Franklin Square with his girlfriend. They had been out together and were waiting for a bus. You were also in Franklin Square at the time. You were with a group of girls and some other males. At approximately 5.50pm the complainant and his girlfriend noticed the girls who were part of your group near the water fountain in Franklin Square.

One of these girls noticed the complainant and his girlfriend, and yelled back “Don’t fucking look at me.” A few minutes later you walked over to where they were sitting. You stood over the complainant and his girlfriend and yelled at them to “stop mouthing”. They stood up, the complainant saying that he was not saying anything. Whilst you were yelling at the complainant another person in your group tackled him to the ground. He punched the complainant. It is not asserted that you are criminally responsible for his conduct.

You punched the complainant to the head once and you kicked him to the head. At this stage he was lying on the ground and as he started to sit up, you kicked him to the head from behind with significant force connecting with the right side and front of his face. A security guard who saw the assault called out to you, and you ran off in the direction of Davey Street. Another person who witnessed the assault called emergency services and waited with the complainant and his girlfriend until police arrived.

The entire incident was captured on CCTV footage, and a bystander also recorded it. The Court has viewed that footage.

You attended police voluntarily on 21 January 2020. You participated in a record of interview under caution. You denied involvement in the assault and claimed that you did not go to Franklin Square on that day. You denied knowing your co-offender. When showed the CCTV footage you said that you “don’t know who the fuck that is”, and that whoever did it was “pretty low”.

After further investigation and a search you were placed under arrest and transported to the Hobart Police Station where you participated in a second interview under caution. You again denied involvement in the assault.

The complainant was shaken as a result of the assault and was initially unsteady on his feet. He was not able to remember anything after being tackled to the ground and punched. It is asserted by the Crown that the complainant was dazed and confused as a result of the assault. He was taken to hospital where he presented with mild frontal headache, a painful head, swelling around the left lower jaw, nausea, some double vision, an abrasion across the bridge of his nose, and a painful left wrist, which required a plaster cast and attendance at an orthopaedic fracture clinic. He was discharged from hospital later that night. He suffered a soft tissue injury to his left wrist.

The Court has been provided with a victim impact statement which indicates the serious consequences of this conduct upon him. I have regard to its contents. Your conduct has contributed to the complainant leaving his apprenticeship, ending a relationship, suffering impacts in his relationship with his father, and mental health issues. This was an unprovoked attack on a person not known to you. He describes himself as being constantly anxious and describes moving to another part of the State, partially in consequence of this assault.

Parity is relevant in sentencing you, though I note your co-offender, who has been sentenced, was 14 years old at the time of the offending and dealt with as a youth. His youth is a point of difference which is relevant.

You are 20 years old, you have a young child. You are single. Yours has been a disadvantaged background. Mr Slicer has submitted that you endured a difficult family history; that you were witness to significant family violence between your parents; that you attended a number of schools, and that you are only marginally literate.

Your educational history is characterised by instability, and marked by suspensions for participation in physical fights. You have no employment history save for odd jobs such as wood cutting and lawn mowing. You receive a Centrelink youth allowance. You receive $800 per fortnight by way of benefit, and you have an outstanding monetary penalty of $546.

You are medicated for bipolar disorder, schizophrenia and attention deficit hyperactivity disorder, as well as anxiety. You describe your mental health as poor.

You have a history of drug use, in particular cannabis and, more recently, Ice, apparently on a daily basis. In the lead up to this offending you spent a significant sum of money in procuring that drug. You have apparently ceased the use of that drug. You had apparently done so prior to being taken into custody on the last occasion you appeared before me in respect of this matter. I note that at the time of the offending you were subject to a community corrections order.

You describe yourself as remorseful, and I accept that your plea of guilty evidences that, as does the letter which has been handed to me today, and the apology which was made on the last occasion through your counsel.

I consider that your offending is aggravated by reason of its unprovoked nature and the fact that is occurred in a public place before witnesses. The seriousness of the conduct itself cannot be ignored, involving as it did a kicking to the rear of the complainant’s head. Conduct which carried with it the risk of serious injury.

As a young offender rehabilitation is a central sentencing consideration. Sometimes the seriousness of the offending will overwhelm that consideration, but whilst this is very serious conduct, I take the view that the sentence should have your rehabilitation as its primary focus. That does not mean that the sentence should not involve some punishment. It must. It is fundamental that people can go about their business in the community, and engage with one another in public places, with a sense of safety. Conduct such as yours erodes public confidence in being able to do that. Your victim has endured unnecessary suffering – psychological and physical – because of your actions.

In all the circumstances I consider that a term of imprisonment represents the appropriate response to your behaviour. Such a sentence marks the gravity of your offending, punishes you and deters others. I remanded you in custody on the last occasion and the sentence that I impose today will commence on that date. You can expect to spend periods in custody if you continue to behave this way and you should take urgent steps to engage with those who can assist your rehabilitation, and, hopefully, find some pursuit which can constructively occupy your time.

I convict you. I sentence you to 6 months’ imprisonment. In order to encourage your rehabilitation I have decided to suspend the operation of 4 months of that sentence on condition that you commit no offence punishable by imprisonment for a period of 3 years. As I say, I backdate the commencement of that sentencing order to the date you were taken into custody. I make a community corrections order to commence upon your release, for a period of 12 months. In addition to the core conditions I direct that you must attend, participate in, and complete, the EQUIPS Aggression Program as directed. You are going to be taken back into custody now for a little longer, and I urge you to reflect on your behaviour in that period, and then to take advantage of the opportunity that I have afforded to you today, to take active steps to address your behaviour and set yourself up for some sort of future.