STATE OF TASMANIA v BENJAMIN SCOTT PARRY 17 NOVEMBER 2020
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Parry, the defendant, has pleaded guilty to two counts of assault committed during the course of one incident on 17 February 2018. There are two complainants, Jacob Walker and Danae Gaby. At the time of the incident those two were in a relationship. The defendant knew Mr Walker and through him, Ms Gaby. On the evening of 16 February, a Friday, Mr Walker and Ms Gaby were out celebrating Mr Walker’s birthday. At 1am the next morning, they were walking through a car park in the Launceston CBD. Ms Gaby saw a person she recognised sitting in the driver’s seat of a car that was parked in the car park. The person was a Mr Duncan. The defendant was sitting in the passenger seat. Ms Gaby approached Mr Duncan to talk to him about some money she said he owed her. A heated argument took place between the two, during which Ms Gaby struck the bonnet of the car with her fist, took the keys from the ignition and threw them on the ground. Mr Walker tried to get Ms Gaby to leave with him. The two walked away but Mr Duncan and Ms Gaby continued to exchange words. The defendant got out of the vehicle and ran towards the complainants who at this stage had reached the footpath on the other side of the street from the car park. While their backs were turned, the defendant ran to them and punched Mr Walker to the back of the head, knocking him to the ground. He grabbed Ms Gaby by the throat, pushed her against a nearby fence and threw her to the ground. Mr Walker tried to get up but the defendant punched him to the face, knocking him unconscious. The defendant then went back to a vehicle which was driven off past the two complainants, with Mr Walker still unconscious on the footpath. Witnesses ran to assist. Police and ambulance were called. Mr Walker was taken by ambulance to the hospital. As to the incident, the defendant’s counsel stated that the defendant was not intoxicated or affected by substances. It was put that Ms Gaby was drunk and acting aggressively. The defendant spoke to Mr Walker about the need to get her away from the argument. The defendant says that as the pair was leaving, Ms Gaby told the defendant he was sticking up for the wrong friend and called him a “dog”. The defendant followed, angry at Ms Gaby but for some reason punched Mr Walker first. Another male then intervened and he and the defendant grappled, at which point Ms Gaby pulled at the defendant and he acted to move her away although he accepts he acted excessively. When the defendant perceived Mr Walker to be getting up he then punched him again. The defendant’s counsel suggested he thought Mr Walker would respond, and that hitting him was a “knee jerk” reaction. However the defendant accepts his perception was unreasonable, which I assume means he concedes that he did not genuinely believe he needed to act in defence of himself. Mr Walker suffered a fractured cheekbone, some front teeth were knocked out and he had minor lacerations to the lower lip with swelling, a small laceration to the right side of his head, and grazes to his left hand. He did not require surgery and was discharged from hospital the next day. However, two days later he required dental treatment. In total three teeth were lost, two of which required root extraction to be fully removed. He underwent fortnightly and then monthly dental check-ups for a period of six months. He now wears a denture plate, and permanent dental implants are the remaining option. His dental costs are approximately $6,000. Witnesses have attested to the lack of warning and force with which Mr Walker was initially hit, and the force of the second blow. It seems he hit his head on the concrete gutter after the first blow.
The defendant is now 33 years old. He has a recorded history of offending starting in 2005. He has four convictions for summary assault, the first as a youth in September 2005, and that can be disregarded to a large degree. The next three relate to assaults all of which occurred in the Launceston CBD in the early hours of the morning and involved punching someone to the face, with one incident happening in the same car park. On 28 February 2012, for an offence committed in January 2011, the defendant was sentenced to five months’ imprisonment the execution of three months of which was suspended on conditions. About five months later for an offence committed in December 2011, he was sentenced to three months’ imprisonment wholly suspended on conditions. Lastly, on 18 April 2013 for an offence committed in May 2012 – between the two court appearances just mentioned – he was made the subject of a community service order for 70 hours. There seems to have been an element of excessive force in self-defence involved in that matter. Since that time there has been nothing of any real significance. There is some room for thinking this offending was an isolated lapse rather than a continuation of a pattern Further relevant personal circumstances are as follows. The defendant is in a stable relationship. The couple have a daughter now 11 years old and are expecting a second child in May 2021. He completed year 10 at school and has had few periods of unemployment since then. He is presently employed on a part-time basis in a trailer building business and has recently declined to take up a full-time position pending the outcome of this matter. It seems that full-time employment remains open to him. From time to time he supplements his income by conducting his own mechanical repair business. I was told that imprisonment may jeopardise the family home as the defendant’s partner may not be able to afford the mortgage payments. He has been engaged in various sporting clubs and met Mr Walker through that means. He has no drug and alcohol issues. I was told that in recent times he cared for his father until his father’s death in 2019. These matters must be taken very seriously. At the risk of overlooking the assault on Ms Gaby, the attack on Mr Walker was disgraceful. He was walking away and had his back turned. He was felled with one punch and when attempting to get up, was knocked down with a blow to the face. Some witnesses thought he was dead. It was very fortunate that more serious injuries did not result. As it is, Mr Walker will have to cope with his teeth problems for the rest of his life, probably an ongoing expense. The only explanation is general anger. The conduct shows a propensity to use violence in that state. Intoxication is not an explanation. Although merely pushing Ms Gaby away might have been lawful, the response was significantly excessive. Grabbing her by the throat was a nasty attack. General deterrence is a prominent factor. Although the defendant has no recorded history of violence since the offence in May 2012, specific deterrence is also a weighty factor, given the trigger for this violence and its extent. I might also mention the fact that notwithstanding his family situation, and notwithstanding the circumstances of some of his previous matters, the defendant was sitting in a car with friends, in a car park, in the CBD in the early hours of the morning. I take into account the pleas of guilty. They did not come at an early stage but I note two other charges existed, and the plea to the two counts of assault has been accepted in discharge of the indictment. The pleas saved a trial and quite a number of witnesses giving evidence. I was told that the defendant is very remorseful and has said as much to Mr Walker. I was also told that there is now no real animosity on Mr Walker’s part but that is of little significance in the sentencing process. Additionally, the defendant has made some financial allowance for a compensation order, a matter which counts in his favour. Before proceeding to sentence, I make that compensation order in favour of Jacob Walker and adjourn the further hearing of the application to a date to be fixed.
Mr Parry, I have set out my views about the offending and what I see to be the relevant factors in your case. Your conduct calls for strong condemnation. Angry at Mr Walker’s girlfriend, you punched him from behind without warning and without giving him any opportunity to defend himself. When trying to get up off the ground in a dazed state you punched him again. Between those events you assaulted Ms Gaby. Among the acts was a serious one of grabbing her around the throat. I take into account your personal circumstances, but any hardship caused to your family is something you ought to have considered before acting as you did. As I have mentioned though, there are some things that operate in your favour. To an extent, one is the fact that nearly five years had gone by since your last court appearance for an offence of violence, and for anything of real significance. All in all, imprisonment is necessary but I am prepared to suspend the execution of the operation of part, although the suspension will come at a cost. You are convicted of the assaults and sentenced to 12 months’ imprisonment to commence on 10 November 2020, the execution of eight months of which is suspended on condition you commit no offence punishable by imprisonment for a period of two years, and on condition that you perform 150 hours of community service within 30 months of your release. You will have to report to a probation officer at 111 Cameron Street, Launceston within two clear working days of your release.