STATE OF TASMANIA v ASHLEY ERIN MOORE 8 NOVEMBER 2021
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant, Ashley Erin Moore, has pleaded guilty to three counts of assault by driving a motor vehicle at the complainants, striking one of them and breaking her femur. At the time the defendant was disqualified from driving pursuant to a court order and was subject to a one month suspended sentence for multiple driving offences including evading police.
The complainants are Heidi Armstrong, Kerry Armstrong and Braydon Armstrong. They are siblings.
The defendant has also been charged with summary offences with respect to this conduct, namely one charge of driving while disqualified on Browns Road, Ranelagh and one charge of driving while disqualified on Bundalla Road, Ranelagh, both on 28 January 2020. I have agreed to deal with these two charges on complaint 1845/2020, pursuant to s 385A of the Criminal Code and have accepted pleas of guilty to those charges through counsel.
On 29 January 2020 at approximately 9 p.m., after he had been drinking alcohol the defendant and his companion, Nathan Clark, who is the step-brother of one of the complainants, were sending video messages to the complainant Kerry Armstrong using Mr Clark’s Snapchat. At some point the defendant and Kerry Armstrong began arguing. Mr Armstrong stated to the defendant ‘why not sort it out tonight’ and told the defendant he was going to KFC in Kingston.
At around 11.15 p.m. the complainants’ mother, Ms Crystal Cuthbertson, drove two of the complainants, Kerry Armstrong and Braydon Armstrong, to the KFC in Kingston.
During this time the defendant and Mr Clark also drove to Kingston.
The complainant’s car left the food outlet and whilst travelling home near to the Margate Train, Kerry Armstrong received a message saying ‘we’re behind you’. There was a Commodore behind their car, which was swerving and flashing its lights. During this time video snapchat messages were still being sent and Kerry Armstrong received a message saying “meet me up the road”.
Ms Cuthbertson, Braydon Armstrong and Kerry Armstrong arrived at their home in Margate and Ms Cuthbertson and Braydon Armstrong went inside. Kerry Armstrong waited outside the house.
A short time late Braydon Armstrong and Heidi Armstrong came out of the house. Kerry Armstrong saw the same Commodore parked approximately 150 metres along the road. The complainants saw the defendant and Nathan Clark get out of the car.
The defendant and Nathan Clark said “come on then, dog”, “your nothing but a pussy”.
Kerry Armstrong said “come on then” and ran towards the car. Nathan Clark smashed a glass bottle on the road.
Whilst Kerry Armstrong was running at the car, he saw the defendant get in the driver’s side and Nathan Clark get in the front passenger seat. The defendant started driving the car towards him whilst he was on the footpath. The defendant drove up onto the curb and swerved at Kerry Armstrong who jumped over the bonnet of the car.
The defendant then drove at complainants Braydon Armstrong and Heidi Armstrong. Braydon Armstrong moved out of the way. Heidi Armstrong was standing on the footpath about two metres behind him. The defendant’s car was driven towards her on the footpath and the front of the defendant’s vehicle hit her on her left hip area and she was flipped over the top of the car landing on the grass. The vehicle was estimated to be travelling at around 20km/h.
Heidi Armstrong was taken to the Royal Hobart Hospital. She sustained a closed left femoral fracture and she underwent surgery and was discharged on 4 February 2020.
I have read a victim impact statement from Heidi Armstrong. The assault impacted on her mentally, physically and emotionally. She is in constant pain and cannot control the movement of her leg. She has been informed that there is a possibility that she will need further surgery. She says that she has been denied her greatest passion in life, her love of horses. Not being able to ride and take care of her horses has taken a toll on her mental health. Her leg is also holding her back in terms of finding a job that because she is unable to stand or walk for long periods of time.
I have also seen victim impact statements from her brothers who suffer from anxiety and depression as a result of what happened to their sister and the circumstances in which it happened.
The defendant has relevant prior convictions.
Indeed he was subject to a one month period of suspended imprisonment when this crime was committed. That offending also involved driving a motor vehicle and included the offence of evading police. Application is made pursuant to s 27 (4)(a) of the Sentencing Act 1997 to breach the suspended sentence imposed on 22 January 2019.
On behalf of the defendant, it was submitted to me that there are a number of factors that weigh in favour of imposing a non-custodial sentence. The defendant was only twenty at the time of the commission of the offences and is thus to be treated as a youthful offender. Moreover, whilst it is accepted that he does not come before me with an unblemished record, in terms of a violence, it is limited. And whilst it is accepted that he has a history of driving offences, the majority of his offending was dealt with in the Youth Justice jurisdiction.
I note that the defendant has been offence-free since the night of these events, some 20 months ago or perhaps more. He is not engaged in any further animosity with Kerry Armstrong or either of the other complainants.
He is remorseful. Despite his own struggles with his mental health, he has been able to manage those conditions appropriately and there’s been no repeat of this or any other behaviour.
I accept the submission made on behalf of the defendant that a home detention order is appropriate in these circumstances where the defendant was young at the time of the commission of the offences, is still young, and is without a history of violence.
I also accept the submission that it would be unjust for me to activate the suspended term of imprisonment of one month given the gap between the imposition of the suspended sentence and the commission of these offences which was approximately a year, and given also that there has been demonstrated compliance with the sentence and with the law generally since the commission of these offences in January of 2020.
I make no order in respect of the application.
The defendant has been assessed as suitable for a home detention order and that is the course I propose to take.
Mr Moore, you are sentenced to a period of 9 months home detention with all core conditions under the Sentencing Act 1997 imposed in the home detention order.
With respect to s 42AD (1), (g) and (h), of the Act, the following conditions are imposed in the Order:
you must, during all of the operational period of the order submit to electronic monitoring, including by wearing or carrying an electronic device;
during the period that you are required to submit to electronic monitoring:
a) you 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
b) you 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
c) you must comply with all reasonable and lawful directions given to you in relation to the electronic monitoring, including in relation to the installation, attachment or operation of a device, or a system, used for the purposes of electronic monitoring by:
i. police officer;
ii. a probation officer or proscribed officer; or
iii. another person whose functions involve the installation or operation of a device, or a system, used for the purposes of electronic monitoring
The following special conditions are also adopted respectfully, recommendations of the assessor. They are as follows:
you must, during the operational period of the order, remain at [address] at all times unless approved by a probation officer;
you must attend the Community Corrections office at Highfield House in Hobart for induction onto this order no later than 10.30am tomorrow. I postpone the commencement of the Order until that time.
you must, during the operational period of the order, maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections and be accessible for contact through this device at all times
you must submit to the supervision of a Community Corrections officer as required by that officer
you must not, during the operational period of the order, take any illicit or prohibited substances. Illicit and prohibited substances include
- Any controlled drug as defined by the Misuse of Drugs Act 2001
- Any medication containing an Opiate, Benzodiazepine, Bupropion-Hydrochloride or Pseudoephedrine, unless you provide written evidence from your medical professional that you have been prescribed the relevant medication.
you must not, during the operational period of the order, consume alcohol, and you must, if directed to do so by a police officer or Community Corrections officer, submit to a breath test, urine test, or other test, for the presence of alcohol.
You are convicted of each of the offences to which you have pleaded guilty.