STATE OF TASMANIA v JOSHUA MICHAEL MURTAGH 4 MARCH 2021
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant, Mr Murtagh, has been found guilty of assault as an alternative to one count of wounding. The main issue in the trial was whether he had been actively identified as the offender. I am also dealing with his subsequent pleas of guilty to a charge of trespass and one of assaulting a police officer. The facts as I find them to be and as stated are as follows. In the early hours of the morning of Monday, 2 March 2020, the complainant, Mr Deverell, was at home with his partner, Ms Latham, their young daughter, and Ms Latham’s teenage son. They were asleep in the upstairs part of the house. The occupants were awoken at about 3am by the dog barking. Visible from the main bedroom is a living room/hallway area just inside the laundry at the back of the house. Ms Latham saw a hooded figure and warned Mr Deverell who went downstairs and encountered a male person. The jury was satisfied this person was the defendant. The defendant said that he was looking for someone who he described as an “old mate”, that he was trying to get to the back corner, and that he must have jumped the wrong fence. Mr Deverell told him he was in the wrong house and, in no uncertain terms, that he should leave. The defendant made to go but came back into the house, and at that point, in an attempt to stop him going further, Mr Deverell grabbed him. A scuffle followed with Mr Deverell ending up on the floor grappling with the defendant who was on top of him. Ms Latham described the defendant moving his arm as if he was punching or trying to punch Mr Deverell. Ms Latham grabbed the defendant from behind and to the side, and unsuccessfully tried to pull him away. Ms Latham’s son came into the area and he was told to call the police. Ms Latham still had hold of the defendant; Mr Deverell was telling her to let him go. In the end Mr Deverell told the defendant to go and the scuffle stopped. At that point, Mr Deverell realised that his left hand was bleeding. He told the defendant that he had stabbed him, which the defendant denied before leaving through the back door. Mr Deverell and Ms Latham said they saw the defendant holding an object but disagreed about its nature; it was either a screwdriver or a bladed implement. Later that day Ms Latham made a positive identification of the defendant from a photo board. Shortly after, the defendant was arrested in his home. The evidence of the arrest shows the defendant was agitated and speaking incoherently, consistent with the evidence of Mr Deverell and Ms Latham. The evidence establishes that earlier in the morning of 2 March, up until about 1 or 2am, the defendant had been at a house two doors away from Mr Deverell’s house. He left and did not return. He was a frequent visitor to that house. The closest corners of the two blocks are joined at the very back. That might explain the defendant’s comments whilst in the Deverell house. While the defendant was being processed at the police station, he was handcuffed, with Sen Const Harriss standing by his side. He assaulted the officer by lunging towards him, striking the officer to the left side of the face with his head. No doubt the officer was a little stunned, but was fortunately not harmed. The police interview of the defendant was delayed due to his drug affected condition. When interviewed he denied any knowledge of the wounding, but said he did not have much recollection of the weekend. The wounds to Mr Deverell’s hand were firstly on the bottom part of the thumb, with a second towards the base of the first finger. This one was deeper. Neither involved deeper structures such as tendons, nerves or blood vessels. Expert opinion established that the wounds were consistent with two separate actions. The wounds were cleaned and explored under local anaesthetic, and then sutured. I have a victim impact statement of Mr Deverell dated 12 February 2021. Mr Deverell said he has lost some feeling in his hand. He had to cut back his work hours from full-time over the last few months as his hand becomes sore and numb. He described that in the healing process, his hand became infected which delayed the removal of the stitches. He says he feels nervous at home, especially late at night and early in the morning, and he is nervous if he sees anyone who looks like the defendant.
The defendant is now 30 years; 29 at the time. He has a very lengthy record of offending which includes offences of violence and dishonesty, although the violence is of some age. In May 2010 he was convicted in this Court of wounding and assault, and imprisoned for five months. There is a later conviction for assault committed in June 2012, and two convictions for assault police, one in 2008, and one in 2018. Generally the record extends to all manner of offending; the antisocial behaviour being broad in nature and persistent. There have been numerous terms of imprisonment, actual and suspended. On 25 February 2020 in respect of offences relating to drugs, dishonesty, firearms, bail breaches, breach of a family violence order breach and possessing a dangerous article in a public place, the defendant was sentenced to a total of 15 months’ imprisonment, backdated, six months of which were suspended on conditions for two years. He was also made the subject of a 12 month community correction order. The present offending was committed within a few weeks of his release. The Crown has applied to activate the six month term. The defendant does not show cause but argues that activation would be unjust. I note that since 2 March 2020, the defendant has spent a total of about 250 days in custody over three periods. It is agreed that the correct date to which any sentence should be backdated is 25 June 2020. The defendant seems to have had a relatively stable upbringing although I was told there was some unspecified childhood trauma that has affected him in later life. At an early age he took up with antisocial people. Entrenched drug addiction and regular offending followed. I note that he suffers from schizophrenia for which he receives regular medication. When sentenced in this Court in May 2010 for wounding and assault, the sentencing judge described a most extensive record for one so young, the record plainly manifesting the defendant’s “indifference to his obligation as a member of the community”. Little has changed. I was told that before being taken into custody after a period of bail earlier this year, the defendant had made contact with a drug rehabilitation program and was on the waiting list. He hopes to pursue that when he can. He is also on the waiting list for prison rehabilitation programs relating to drugs and aggression. As to this offending, the plea of guilty to the trespass was on the basis that the defendant ought immediately to have left when told he was in the wrong house and told to leave. It is not asserted that his mental health condition had any role to play; it is put that he was heavily affected by illicit drug use. I accept that the first physical contact was Mr Deverell grabbing him. However the defendant seems to have very quickly armed himself with a sharp offensive object. As to the verdict of assault, it is common ground, and I accept, that it should be taken as meaning the jurors were not satisfied that the defendant intended to wound or was subjectively reckless as to the risk. He is to be sentenced on the basis that he applied force while he had in his hand a sharp or bladed object but neither intended nor foresaw the consequence. However, the outcome is relevant as being reasonably foreseeable in that he had in his hand the object while wrestling with Mr Deverell. I accept that he left fairly quickly after the end of the scuffle, was accused of stabbing Mr Deverell and told to leave. There is no evidence of any threats at any time, but the incident must have been a very traumatic one for the occupants of the house. I must take into account that the defendant was heavily under the influence of drugs and wielding a sharp or bladed object during a scuffle following his refusal to leave the house. General deterrence and specific deterrence are prominent factors. As to assaulting the officer, I accept that although it does not amount to an excuse of course, the defendant was drug affected and not acting rationally.
Mr Murtagh, I have set out the relevant facts and circumstances. A term of imprisonment is necessary for these three offences. I do not consider it unjust to activate the suspended sentence. The breach occurred very early on in the period of suspension. Additionally, although that sentence did not relate to any offence of violence, there was a broad range of offending involved. The object of suspending a term of imprisonment is to encourage rehabilitation and good behaviour, not to make the offender a selective criminal. I activate the term of six months’ imprisonment; that will commence on 25 June 2020. You are convicted of the three present offences and sentenced to 10 months’ imprisonment cumulative to the six months activated term. I am prepared to allow for parole to possibly assist in rehabilitation, and order that you not be eligible for parole until you have served 7 months of that 10 month sentence. That is a total of 13 months’ imprisonment backdated to 25 June 2020, which you will have to serve before being eligible for parole.