STATE OF TASMANIA v HARLEY DANIEL MURTAGH 10 DECEMBER 2021
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant Harley Daniel Murtagh, a 23 year old aboriginal man has pleaded guilty to one count of assault contrary to the Criminal Code, and I have agreed pursuant to s 385 of the Code to deal with two summary offences of breach of bail, one charge of destroy property.
On Friday 27 August 2021, the complainant Nathan Redburn was out with his partner Jodi Miller. They were at the Paddy Wagon Hotel in Moonah and had been there for about two hours.
At around 9:45pm, the complainant was advised that a person he wished to speak to was outside. The complainant went outside to talk to the male, followed by Ms Miller.
When Ms Miller caught up with the complainant she saw that he was talking to the male and his girlfriend. The defendant, walked from across the road and without reason, placed himself between the complainant and the male. He pointed at the complainant who gestured at the defendant to go away. The defendant and complainant were not known to each other.
The defendant immediately responded by punching the complainant to the face. He threw another one or two punches at the complainant and before grabbing him around the neck and slamming him to the ground. The complainant landed heavily on his right shoulder and head.
Whilst he was on the ground, with one arm pinned under his body and the other being used to try to push himself up from the ground, the defendant punched the complainant 8-10 times to the face and head, using both fists.
Other people, including Ms Miller intervened and attempted to get the defendant off the complainant. The defendant continued to remonstrate with the complainant. Despite being restrained by numerous people, he circled around the complainant aggressively and appeared to want to continue the assault. He eventually broke through the numerous bystanders attempting to hold him back and struck the complainant again whilst also grabbing him around the throat.
Eventually one of the bystanders was able to successfully extract the defendant and they walked away. The defendant continued to behave aggressively, turning to the window of the pub and punching it, causing the window to smash. He then left the area.
Police arrived at the scene very shortly after. They spoke with the complainant, whose face was covered in blood. They were aware the defendant had run off and went to find him. He was located and placed under arrest.
The defendant was detained due to his level of intoxication. When sober, he was offered the opportunity to participate in a recorded interview but he said he didn’t remember anything.
The complainant received a gash to his head which bleed freely. He also received an injury to his shoulder, which is has caused him on going difficulties, as result of the defendant throwing him to the ground.
I have today read a victim impact statement and it is clear that the complainant has been left with ongoing pain, disability, anxiety and has suffered financial loss as well. He finds himself hypervigilant and felt that indeed he could have died that night.
The defendant’s involvement with the criminal justice system commenced when he was a youth.
He served his first actual custodial sentence when he was 19 years old. He has a conviction for assault from his youth in 2016 and he has six prior convictions for common assault, as a youth and as an adult. There are other offences of breach of bail and threatening and resisting a police officer.
Prior to being arrested, he had been completing a program at the Salvation Army Bridge Program. He had been staying at the facility in New Town. He had commenced the program on 15 June 2021.
By 27 August 2021, he had not used methamphetamine since 16 June 2021. It was therefore the longest period he had abstained from using the drug since he was in his youth.
Due to his positive engagement with the program, he was rewarded with weekend leave. He was so pleased with his progress that he made the stupid decision to reward himself with alcohol. He quickly found himself intoxicated due to the amount that he had consumed. Between the ages of 15 years old to 18 years old, the longest period of abstinence he had from using methamphetamine was three weeks.
The defendant has been in custody since 27 August 2021 and despite being offered illicit substances whilst in custody, he has refused and continued his period of abstaining from methamphetamine use. He does not wish to relapse.
The Bridge Program has confirmed that he is welcome to continue to engage with them once he is released from custody or completes any sentence although if living in the community and engaged with the Day Program he could be fast-tracked for the Residential Program if he were to experience a relapse.
The assault is a serious one and warrants appropriate punishment, however the defendant is entitled to a discount on any sentence in recognition of his early plea of guilty. It is also in the community interest that he be given every chance to succeed in his determined attempt to free himself of an addiction to an insidious drug, the influence of which has pervaded his life since he was a child.
The defendant is convicted of each of the offences to which he has pleaded guilty. Taking into account that he has been in custody since 27 August 2021 and taking into account that there is no parole eligibility associated with a home detention. I impose a single sentence across all charges. That sentence will be a Home Detention Order for a period of 9 months.
All of the core conditions contained in s 42AD (1) of Part 5A of the Sentencing Act 1997 are imposed.
With consideration to s 42AD (1) (g) and (h), the following conditions are added to 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. a police officer;
ii. 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
you must, during the operational period of the order, remain at [address] at all times unless approved by a probation officer
immediately upon your release from custody, you must attend the Community Corrections office at Glenorchy for induction onto this order.
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.
In addition I make a Community Correction Order for a period of 12 months with all of the core conditions plus a condition that during the operational period of the order you undertake 28 hours of community service to be completed as directed by a Community Corrections officer through engagement with therapeutic activities such as counselling at the Bridge Program.
The commencement of the Home Detention Order and the Community Correction Order is postponed until Monday, 20 December 2021 and you are remanded in custody until 10am on 20 December 2021 after which time you are to report to Community Corrections in Glenorchy.