STATE OF TASMANIA v ELIAN ANTHONY ELTON NICHOLLS 18 SEPTEMBER 2026
COMMENTS ON PASSING SENTENCE BRETT J
Mr Nicholls, you have pleaded guilty to one count of assault.
You committed this crime on 31 January 2026. You and the complainant knew each other. You had a grievance with him because you were aware that he had been involved sexually with your former girlfriend. You had both been drinking at a local hotel although in separate areas. You came across each other when you walked outside the hotel and saw him walking toward you on the footpath. You confronted him about your grievance. He made a remark to you during this conversation which obviously caused you to lose control. You punched him to the left side of his face and then continued to punch him in the face approximately four times. The assault only came to an end when you were pulled from the complainant by others. The punches were delivered with enough force to cause serious injury to his face which included multiple facial fractures of his jaw, fractures to the bones around his eyes and multiple displaced fractures of his left cheek bones. The complainant was treated in hospital after the assault and subsequently required surgical repair of his cheekbone, which involved the installation of titanium plates.
It is clear from what I have been told about your background that your actions on this night were out of character. You are 23 years of age and have no prior convictions of any nature. You are in employment and heavily involved in the local community and sport. I have received a number of character references which attest to your good character. You expressed remorse immediately after the attack and pleaded guilty to this charge at the earliest possible time in the Magistrates Court. I accept that you are genuinely sorry for your actions.
However, this was a serious and brutal assault with some concerning features. You struck this man with obvious significant force to the head a number of times. Forceful punches to the head are notoriously dangerous and are capable of causing serious and sometimes fatal injury. In this case, they did in fact cause serious injury. You cannot be sentenced on the basis that you intended or were subjectively reckless about the causation of injury but the fact that this was the result of the assault is a relevant aggravating factor. Further, the assault occurred in a public area and was perpetrated by you when you were obviously affected to some extent by alcohol. You told the police that you had consumed approximately five drinks although you did not feel drunk. The effect of alcohol, of course, is not a mitigating factor. On the contrary, I regard it as a serious feature of this offending because alcohol reduces the capacity to control the force used in such an attack, which again creates significant danger. You agree that you lost control and the fact that you did not desist but had to be pulled off this man by others confirms that this was the case. I also consider the fact that you engaged in this assault because of the said grievance to be a matter which does not excuse or mitigate your conduct, although it does provide some explanation for it. On the other hand, it does suggest an aspect of retaliation which is also a serious feature of the conduct.
Notwithstanding the objective seriousness of the conduct itself, there are significant mitigating features arising from your personal circumstances and your response to the offending. These include your lack of prior convictions, your prior good character, your remorse and your early plea of guilty. Your counsel also submits that whatever penalty is imposed, I should not record a conviction. The primary thrust of the submission is that a conviction will, in all probability, result in you losing your current employment, which is contract work with Forestry Tasmania which involves shooting vermin. The argument as I understand it is that a conviction for this crime constitutes the breach of the conditions of a property protection permit, which is necessary for this work under the Nature Conservation (Wildlife) Regulations. However, even if this is correct, I am of the view that recording a conviction is the appropriate outcome in this case. The serious nature of the conduct and the need to deter violence of this nature compels this conclusion. However, I am far from convinced in any event, that the recording of a conviction will have any decisive impact on your existing employment. The permit itself is conditional upon you not committing a relevant offence. The condition is reproduced on the permit and specified in reg 48. Relevant offences for the purpose of such a permit are defined in the regulations, in reg 4. That definition refers to a list of such offences disclosed on the Departmental website. That list does not include Criminal Code assault. The fact that you committed this crime may have an impact on your ability to hold a firearms licence, in particular because it may call into question whether you are a fit and proper person to hold such a licence, but again I am not satisfied that recording a conviction will have any real effect on this question. It is far more probable that the significant consideration will be the nature of your criminal conduct, irrespective of what penalties are imposed upon you by me.
There is no question in this case that your conduct could easily have resulted in the imposition of an actual sentence of imprisonment which you would be required to serve. However, because of your prior good character and early plea of guilty, I will not impose such a sentence on this occasion, that is a sentence of imprisonment of any nature. Some punishment is required though and this can be adequately addressed by requiring you to perform community service.
Accordingly, I convict you of the crime to which you have pleaded guilty and make a community correction order. You must comply with the order for a period of 18 months. That period shall commence today. The core conditions of the order require you to report to a probation officer and you shall do so at the office of community corrections in Burnie within three clear days of today. In addition to the core conditions, the order shall also include a special condition that you perform community service for a period of 140 hours.