STATE OF TASMANIA v EZECHIAL JOSEPH NAUGHTON 6 NOVEMBER 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Naughton, you have pleaded guilty to 1 count of wounding, 1 count of aggravated burglary and 2 counts of assault.
The relevant crimes were committed on 10 March 2018. They were committed in company with your co-accused, a youth who was then aged 17. Your involvement in this matter commenced when the youth called you and told you that he had been bashed at a party at a house, by men who were armed with weapons. You had been drinking alcohol and taking drugs and it is clear that you believed what he had told you. His version is not accepted by the State, but I accept that you believed that he had been assaulted as he claimed. You and he obviously then decided to seek retribution for the claimed assault. You immediately went to the house. Both of you were armed, you with a metal pole and the youth with a piece of wood.
The party had been held in a shed on a residential property. The residence was the home of a couple and their family, including their son. The party had been held for a 20 year old man, who was a friend of the owners’ son. You entered the shed without the owners’ consent and with the intent to commit assault. This constitutes the crime of aggravated burglary. You came across the man for whom the party had been held, and demanded that he reveal the whereabouts of the male owner and his son. When this man told you that he did not know where they were, you and your companion assaulted him by swinging your weapons at him. One of the weapons hit his arm. You both then punched him to the head and body numerous times. He was forced to the ground by the assault.
The female owner, who had heard the commotion, came into the shed. She saw you standing over the man you had just assaulted. There was a considerable amount of blood in the area. You used insulting and vulgar language towards this woman. You then went to again hit the man on the ground with the metal pole, but the woman intervened and grabbed hold of the pole. You wrestled it out of her grip.
The youth then demanded of the woman that she reveal where her husband and son were. She told him to leave and tried to physically remove him from the shed. You then grabbed hold of her and she told you to leave. There was then a physical altercation between you as she tried to drag you off the property. She was, of course, perfectly entitled to use reasonable force to eject you from her property. During this, you shoved her to the chest with enough force to knock her to the ground. This constitutes an assault on the woman.
She then got up, took hold of a stick and hit you on the face. In response, you hit her across the head with the metal pole, causing a 12 cm jagged wound to the left upper temple. This act constitutes the crime of wounding. The woman was knocked unconscious and fell to the ground. You were recorded by a telephone at this point verbally abusing the woman and saying words which make it clear that you knew you had seriously hurt her, but were indifferent to this. I will proceed on the basis that you did not intend to cause a wound but struck her in the knowledge that such an injury might result, and proceeded notwithstanding that knowledge. I note also that the blow delivered by you was responsive to her act in striking you, but, in the circumstances, this can have little mitigatory weight. You had just assaulted her, and you were on her property unlawfully.
You and the youth then left the property. As you did, you threatened those present not to bear witness against you. You actually said that if anyone went up as a witness, you would “end” them, which I assume was intended to be taken as a threat that you would kill the person concerned.
Both victims suffered significant injury and were transported by ambulance to hospital. The man suffered bruising and tenderness to the face, and lacerations around the eye and nose. He also suffered a fractured nose. This injury was expected to heal.
The wound to the female’s head, extended to the skull, which was visible in the base of the wound. She underwent surgery, during which the wound was cleaned and closed with stitches and staples. She remained in hospital for two days. The wound has healed well.
Neither victim has provided an impact statement to the Court. It is also suggested that members of the female complainant’s family have subsequently exacted some retribution against you.
You were 18 years of age when you committed these crimes. You are now aged 20. The material provided to me describes a dysfunctional childhood. Your mother was afflicted by serious and chronic mental illness and your stepfather abused alcohol and was violent toward you. You also suffered other forms of abuse. Child protection was involved with your family from when you were very young and you spent some time in foster care. You have also had periods of homelessness. You have had longstanding problems with the abuse of alcohol and illicit drugs. I reiterate that when you committed these crimes, you were affected by both substances.
Despite your difficult childhood and the serious nature of this offending, there are some positive aspects which suggest that your rehabilitation is an important sentencing consideration. Your only prior convictions are one for failing to comply with a police officer’s direction, a bail offence and a traffic offence. You have no prior convictions relating to violence. I accept that your commission of these crimes was out of character. The psychological report provided to me suggests that you have suffered significant and genuine remorse, particularly in respect of your attack on the female and its consequences on her. Consistent with such remorse, you pleaded guilty to these charges at an early time. You recently obtained employment at an oyster farm and you seem committed to returning to that employment when you are released from prison.
The psychologist has diagnosed a depressive disorder. You also suffer symptoms of post-traumatic stress disorder arising from your treatment as a child. These symptoms include anxiety and paranoia. This is relevant to your personal circumstances in a general way. However, the psychologist expresses the opinion that these conditions had no part to play in respect of the commission of these crimes.
I accept that you were motivated by blind loyalty to your friend and that you believed he had been viciously attacked by people at the party. This does not mitigate your culpability. Indeed, committing serious and violent crime in revenge for perceived wrong is an aggravating factor. However, that explanation is consistent with the conclusion that your conduct was out of character.
Notwithstanding this, the crimes are very serious. You entered your victims’ property with the intention of committing violence. You were in company with another and armed with a weapon. The attack on the man was brutal and caused serious injury. The attack on the woman included a blow to the head with a metal bar which was hard enough to cause a significant wound and render her unconscious. It is obvious that such an attack could have had far worse, even lethal, consequences. Although I accept that you have been and are now remorseful, you clearly did not experience such remorse at the time. You verbally abused her and then threatened others with a view to avoiding detection. You did not try to help her or call an ambulance. You effectively left her unconscious with a gaping wound in her head. This immediate post-offence conduct aggravates your moral culpability.
There is no question that your conduct deserves a sentence of imprisonment. In view of your age, lack of prior convictions and the need to emphasise rehabilitation, I considered the possibility of home detention and ordered a report in respect of that sentencing option. However, the option is not recommended because you will not agree to such an order. On reflection, in any event, I do not think that that sentencing option would represent an adequate response to the criminal conduct. In my view, the seriousness of the offending and the need to emphasise general deterrence and denunciation of such conduct warrants the service of some time in actual custody. However, I am acutely aware of your age. That factor and the other mitigating factors, including your lack of prior convictions, convince me to partially suspend the sentence and to minimise the time spent in custody. Given the need to encourage your rehabilitation, the suspension will be subject to a condition that requires probation supervision.
Accordingly, you are convicted of the crimes to which you have pleaded guilty and sentenced to a global term of 21 months’ imprisonment, which will be backdated to 25 September 2019. The last 15 months of the sentence will be suspended for a period of 18 months on the following conditions:
1 That you are not to commit another offence punishable by imprisonment during that period.
2 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:
(a) you must, during the operational period of the order, attend educational and other programs as directed by the Court or a probation officer;
(b) you must, during the operational period of the order, submit to the supervision of a probation officer as required by the probation officer;
(c) you must, during the operational period of the order, undergo assessment and treatment for drug dependency as directed by a probation officer;
(d) you must, during the operational period of the order, submit to testing for drug use as directed by a probation officer;
(e) you must, during the operational period of the order, undergo assessment and treatment for alcohol dependency as directed by a probation officer;
(f) you must, during the operational period of the order, submit to testing for alcohol use as directed by a probation officer;
(g) you must, during the operational period of the order, submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
3 You are not eligible for parole in respect of the operative sentence, which is a period of 6 months.