STATE OF TASMANIA v JAKE CHRISTOPHER MORGAN 3 SEPTEMBER 2020
COMMENTS ON PASSING SENTENCE BRETT J
Mr Morgan, you have been found guilty by a jury of one count of assault, and you have pleaded guilty to a further count of assault. The jury found you not guilty of the other charges on the indictment.
It is necessary for me to determine the facts relevant to the count of which you were found guilty, count 1. There are a number of acts particularised as constituting the assault charged in that count. My determination of the facts must be consistent with the verdict, but as your counsel has pointed out, the jury’s verdict is consistent with some or all of the particularised acts. I should only sentence you for conduct which I am satisfied beyond reasonable doubt was actually committed by you.
I accept the submission that the jury’s verdict on the other counts would indicate that it was not prepared to accept everything that the complainant said in evidence to the requisite standard. Count 1 can be distinguished from the other counts of which you were acquitted in that the complainant’s evidence about this assault is corroborated in some respects. While the question of the credibility and reliability of the complainant’s evidence on this count is a matter for me, and I am not bound by any view that I infer was taken by the jury in that regard, I agree that it is necessary to regard the complainant’s evidence with some caution. She did admit under cross-examination lying in evidence about attempting to make contact with you after these events, and otherwise, demonstrated unreliability in respect of some aspects of her evidence, particularly about the other counts.
When I have regard to the corroborative evidence and my assessment of the complainant’s testimony on this count, however, I am satisfied that the relevant factual basis of sentencing on count 1 is as follows. I accept that the complainant gave a substantially accurate account of the events which constitute count 1. In my view, her version was largely consistent with the corroborative evidence and the jury’s verdict. I reject your version of these events, which was completely inconsistent with those considerations. The complainant’s version is consistent with injuries confirmed by medical records and photographs, and the immediate complaint which she made to, and the distress observed by her mother and uncle.
Count 1 was committed on 26 April 2019. It is common ground that the complainant had been out that night and had consumed some methylamphetamine. I am satisfied that after she returned home, she went straight to bed, and did not go into the shed where you were. I reject your version that she came into the shed on her return home and was aggressive towards you. I am satisfied that you did angrily drag the complainant from bed, and take her by force out to the shed, in effect as she described in evidence. I am satisfied that you were angry, probably because she had been out for a considerable time and you had a longstanding suspicion about her infidelity. Your concern and belief about infidelity was apparent from your evidence, and I have no doubt that this was operating on your mind on the night in question, and motivated your conduct towards the complainant. I conclude that you had been waiting in the shed for her to get home, and when she did, your anger boiled over, and you decided to interrogate her in order to have her confirm your suspicions. This is why you forcibly took her from bed to the shed. You could not have interrogated her in the house where the owners were sleeping.
You kept her in the shed for an extended time, she said about 2½ hours. I have no doubt that, although the key was in the door, she was overborne by your anger and aggression and felt trapped. This is consistent with her finally using a pair of scissors to threaten you so that she could escape. During the time in the shed, there was a constant argument during which you accused the complainant of cheating on you, and when she denied it, you struck her. This happened more than once. The blows inflicted by you included punching her to the face and, on two or three occasions, you struck her with the baseball bat. At least one of these blows with the bat was to her lower back, and this blow accounts for the bruise which can be clearly seen in the photographs. The baseball bat was, of course, located by police in the house. The punches to her face are consistent with facial bleeding and abrasions seen by her uncle and at the hospital when she was taken there after these events. These injuries are also apparent from the photographs. The incident came to an end when she threatened you with the scissors in order to escape.
The assault to which you pleaded guilty was committed on 1 May 2019, during the course of an argument between you and the complainant in the underground carpark of the Woolworths store on Wellington Street. The assault consisted of a forceful punch to the left side of the complainant’s face. These events were witnessed by a manager of the Woolworths store, who was having a break at the time. Her evidence was unchallenged and I accept it. She said that she saw you and the complainant arguing. The complainant was upset and you had started to walk away from her. You had got probably four car spaces away, when you turned around and came back at her. The witness said: “it was a fast walk probably towards a run with his arm ready to punch her”. She said that when you reached the complainant, you punched her in the head. The witness started to walk toward you and yelled out to you to leave the complainant alone. You then walked towards her and apologised.
The complainant said that you “punched her with a big force”. She knew that you had “done something to the side of her face, it was really sore”. Soon after, she was taken to hospital by ambulance. On examination, there was bruising to her face and a blood stained discharge from the right ear. An x-ray revealed a lower jaw fracture, which did not require surgical intervention. Her description of the force of the punch is consistent with the injuries, and I accept her evidence in that regard.
You are 22 years of age and single. You have a relatively lengthy criminal history but I note that much of it relates to offences committed before you turned 18. Between late 2016 and early 2017, you spent some time in Victoria. While you were there, you committed a number of offences, including some which involved violence. After returning to Tasmania, you committed a number of further offences, which included threatening a police officer. These offences were initially dealt with by way of a deferred sentence, but you were eventually sentenced to a short term of imprisonment for them, although it was partly suspended. There is no prior family violence offending on your record.
In general terms, it would seem that you had some difficulties in your early years. You have also had long-standing problems with substance abuse. Your school education did not extend beyond year 8, but since leaving school, you have obtained a number of workplace qualifications, and you have had a reasonable amount of employment. You also have the support of your immediate family.
A pre-sentence report assesses you as requiring a very high level of intervention and recommends community-based supervision. You have also been assessed as eligible for the family violence offender intervention program.
I regard both assaults seriously. The first involved an extended period in which you deprived the complainant of her liberty and brutally assaulted her on a number of occasions during the course of what amounted to a violent interrogation. Your use of the weapon is an aggravating factor. The assault in the carpark is aggravated by it having been committed in public. This increased the humiliating effect of the assault and also had the capacity to cause fear and apprehension in others. Your counsel attempted to distinguish between the seriousness of an assault committed in public, as opposed to one committed in private, on the basis that the one in private is aggravated by being committed behind closed doors. Obviously there is a distinction, but it is not one that validly affects your moral culpability for this crime. A crime may be aggravated in its seriousness by one factor or another. Family violence is always serious. If it is committed in private, it will be aggravated for that reason, as your counsel indicated, but this will not reduce your culpability for committing an act like this in public, which is aggravated for the reasons that I have already discussed. Further, it was extremely dangerous to punch the complainant in the head with force. The punch did actually cause significant injury, but the consequences could have been much worse. Both assaults constitute serious acts of family violence. I regard your moral culpability for this conduct as high. The sentencing considerations of general deterrence, denunciation, and vindication of the complainant are important matters. It follows that a sentence of imprisonment is the only appropriate sentencing option, although it will, of course, be backdated to take into account the time you have already spent in custody. Having regard to your age, I think I should also put some emphasis on your rehabilitation. Accordingly, my intention is to suspend part of the sentence which I intend to impose. The conditions of suspension will include supervision by a probation officer. This will, among other things, facilitate your involvement in the family violence offender intervention program. Because I will be suspending a significant part of the sentence, and having regard to the objective seriousness of the crimes, I will not make provision for parole.
Accordingly, the orders I make are as follows:
1 You are convicted of the crimes to which you have pleaded or been found guilty.
2 You are sentenced to a global term of 21 months’ imprisonment, which will be backdated to the 17 February 2020. The last 10 months of that sentence will be suspended for a period of 12 months on the following conditions:
(a) That you are not to commit another offence punishable by imprisonment during that period.
(b) That you will be subject to the supervision of a probation officer. You must comply with this condition for a period of 12 months. That period will commence from when you lawfully cease to be imprisoned under this sentence. The court notes that the conditions referred to in s 24(5B) of the Sentencing Act apply to this condition. These include that you must report to a probation officer within 3 clear days of the day that you lawfully cease to be imprisoned under the sentence. In addition to the core conditions the order shall also include the following special conditions:
(i) you must, during the operational period of the order, attend educational and other programs as directed by the Court or a probation officer;
(ii) you must, during the operational period of the order, submit to the supervision of a probation officer as required by the probation officer;
(iii) you must, during the operational period of the order, undergo assessment and treatment for drug dependency as directed by a probation officer;
(iv) you must, during the operational period of the order, submit to testing for drug use as directed by a probation officer;
(v) you must, during the operational period of the order, undergo assessment and treatment for alcohol dependency as directed by a probation officer;
(vi) you must, during the operational period of the order, submit to testing for alcohol use as directed by a probation officer;
(vii) you must, during the operational period of the order, submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer;
(viii) you must attend participate in and complete the family violence offender intervention program as directed by a probation officer.
3 You are not eligible for parole in respect of the operative sentence.
4 Pursuant to s 13A of the Family Violence Act, I direct that each crime be recorded on your criminal record as a family violence offence.
5 I will reserve the question of whether or not I make a family violence order pursuant to s 36 of the Family Violence Act, and I will adjourn consideration of that question to 16 September 2020 at 4.15pm.