MURPHY, C P

STATE OF TASMANIA v COREY PAUL MURPHY                                     9 MAY 2022

COMMENTS ON PASSING SENTENCE                                                             BRETT J

Mr Murphy, the jury has returned a verdict of not guilty on the charge of causing grievous bodily harm but guilty of the alternative charge of assault. As discussed with counsel, there are a number of pathways to this verdict arising from the evidence. My task is to determine the factual basis of sentencing having regard to what I find proved beyond reasonable doubt on the evidence in the trial. This determination is a matter for me, but my findings of fact must be consistent with the jury’s verdict.

I am satisfied beyond reasonable doubt that the substance of the version provided by the complainant is accurate. I found him to be an honest and reliable witness, and his version, in my view, is supported by the testimony of his father and Mr Kemp. I accept that those witnesses also gave truthful and largely accurate evidence. This version is also consistent with the objective evidence, such as the injuries sustained by the complainant. It is, in my view, also consistent with the CCTV footage.

My findings as to the relevant events are as follows. There was a verbal exchange between the complainant and you outside Greens Hotel shortly before the crime was committed. I don’t think it matters a lot, but I accept that both you and the complainant were equally involved in the verbal exchange. The argument ended when the complainant left Greens Hotel by walking along Marine Terrace toward Ladbrooke Street. His intention was to go home and he was expecting to be collected by his father. I am satisfied that shortly after, you commenced to follow him. I find that your intention in doing so, formed in your drunken state, was to confront the complainant. I cannot be satisfied that at this point you intended to assault him. However, as the complainant said and as depicted in the CCTV footage, just before he reached the intersection of Marine Terrace and Ladbrooke Street, he turned and told you to stop following him. He then turned around and continued his journey. The footage shows you then walking at pace after the complainant and, in fact, closing the gap on him as he turned into Ladbrooke Street. You caught up with him shortly after you both rounded the corner, and you then attacked him from behind by punching him on both sides of the head three times. I think the decision to physically attack him was probably made spontaneously. I will give you the benefit of the doubt about this. In my view, the CCTV footage from the Centrelink building catches some of what happened immediately after this initial assault on the complainant. You went past him and turned to confront him. He remonstrated with you, understandably, and then, as he said in his testimony, he attempted to take you into a headlock. It was around this time that both your father and Mr Kemp arrived on the scene. As the complainant said, one or both of these men pulled him away from you. This is the apparent scuffle that can be partially seen through the lower part of the doorway. As the complainant said, it was during this interaction that you delivered the fourth blow, which was a punch directly into the complainant’s face. I think it is highly probable that it was this blow that caused the injuries to the complainant’s eye socket and nose. This version is largely consistent with your interview with police in my view. You appear from that interview to have a poor recollection of these events, which is probably because you were intoxicated when they took place. Further, you do not clearly make a claim of self-defence. On the contrary, it seems to me that you admitted responsibility for the commencement of the physical exchange.  You make comment about a number of people being present at the relevant time, but this commentary demonstrates some confusion on your part as to where they came from and this is also entirely consistent with their arrival after you had initiated the assault. I am satisfied that at no time did you act in self-defence. The final punch was not a defensive act, but rather a continuation of the violence which you had started a short time before. In any event, it constituted the use of excessive force. There was no justification for your attack on the complainant in the first place nor for the continuation of the physical exchange. Further, I am satisfied that by the time that you punched the complainant in the face, he was being restrained by either his father or Mr Kemp or both of them.

Consistent with the jury’s verdict, I will sentence on the basis that you did not intend or contemplate serious injury. Further, I find that the injuries suffered by the complainant did not amount to grievous bodily harm. However, I am satisfied that these injuries included the fractured eye socket and the fractured nose. They were significant and required surgical intervention. The complainant’s impact statement asserts that he suffered a great deal of pain and discomfort for some time after these events. He also needed and received the care of his parents for a period. He has described the ongoing emotional and psychological impact of this crime. Everything he says is consistent with the nature of the attack and the resulting injuries.

You are now 37 years of age and you live with your wife and young child. You have some prior convictions, but they do not include crimes of violence. There are a couple of offences committed when you were in your early 20s which are consistent with misbehaviour after consuming too much alcohol, but this is as far as prior anti-social conduct goes. You seem to be an industrious person and have been in full-time employment since obtaining your qualifications as a boilermaker welder. You have been involved in sport, in particular coaching football at the junior level. Although you do not and cannot make a claim of remorse, it is clear that these events and your subsequent involvement with the criminal justice system have had a significant and positive impact on your behaviour. With the assistance of your wife, you have developed and demonstrated significant insight in respect of the link between excessive alcohol consumption and poor conduct. You abstained from drinking alcohol for a considerable period, and thereafter have continued to moderate your consumption of alcohol and wider social activities. I am told that you are devoted to your family and committed to leading a law abiding life.

Despite this, I regard this assault is a serious example of drunken street violence. You followed this man as he was walking away from the nightclub. His only intention was to go home but you were intent on confrontation. You elevated that confrontation to a physical attack without any provocation or warning. You initiated the attack by punching him to the head from behind, and the final blow was obviously delivered with considerable force and again to the head. Violence of this nature is of considerable concern to the community. Too often, mindless violence such as this results in death or serious injury. On this occasion, although the injuries actually sustained by the complainant were severe enough, the consequences of your conduct could, of course, have been far worse. The complainant could easily have fallen and struck his head and, in any event, a blow to the head itself can have catastrophic consequences. General deterrence is a significant sentencing consideration. In my view, it necessitates the imposition of a sentence of imprisonment.

The only question for me is whether I should give you an opportunity to avoid actually serving that sentence by its suspension. Because of your prior good character and what I regard as a serious attempt to reform your conduct and ensure that there is no repetition of it in the future, I think you should be given this opportunity. A suspended sentence will achieve this. However, make no mistake, it is a real sentence of imprisonment, and if you fail to comply with the conditions of suspension, including by committing an offence punishable by imprisonment during the period of suspension, and that includes most offences on the statute books, then it is highly likely that you will be required to serve the sentence in prison. Further, and in any event, I think that it is appropriate that you perform some community service in order to provide some immediate experience of punishment. I note that you have been assessed as suitable for that sentencing option.

The orders I make are as follows:

  1. You are convicted of the crime of which you have been found guilty; that is the crime of assault.
  2. You are sentenced to a term of 12 months imprisonment. The whole of the sentence will be suspended for a period of 36 months on the following conditions:
    1. that you are not to commit another offence punishable by imprisonment during that period
    2. that you will perform community service for a period of 182 hours. The court notes that the sections referred to in s 24 (5A) of the Sentencing Act apply to this condition. For the purpose of those provisions:
      1. you must report to a probation officer at the office of Community Corrections in Hobart within 3 clear days of today and
      2. the operational period of the order is 36 months.