STATE OF TASMANIA v MATTHEW LEE PEARCE 19 AUGUST 2021
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Pearce, the defendant, has pleaded guilty to five counts of unlawfully injuring property – counts 1 to 4 and 6 on the indictment – and one count of assault. I am also dealing with his plea of guilty to a summary charge of failing to comply with a direction of the Director of Public Health. These offences were committed on 9 and 10 April 2020. All of the injuring property charges were committed when the defendant drove a vehicle into stationary motor vehicles and a motorcycle, the property of others. He did so during a COVID-19 “lockdown” period directed by the Director of Public Health when he did not have a good reason within the terms of the direction to leave his residence. That one charge relates to 9 April. The complainants are Stephen Daureen, his son Jacob Daureen who lived with his father, and another son, Samuel Daureen. Meaning no disrespect, I will call them by their first names. At the time of the offending, there was a dispute of some sort or at least ill-feeling between the defendant and at least one of the complainants. On 9 April 2020 at 4.30pm, the defendant was at Stephen’s home and had a physical fight with Jacob. No charges arose from that incident. Stephen had three vehicles that were parked at the house, while Jacob also had a motorcycle parked on the street. After the fight, the defendant ran down the driveway, got into his vehicle, a Toyota Hilux utility, and drove it into the motorcycle knocking it over. Some cosmetic damage was caused. That is count 1. He then drove into the passenger side of a Ford Courier utility causing damage to the left side, then reversed back into a Holden Commodore sedan causing damage to the rear door and panel, then drove forward again colliding with the third vehicle, a Ford Fairlane. Having driven away, about one minute later he returned and pulled up next to the Ford Fairlane. He then hit the rear driver’s side guard with an axe, making a dent. At the time he was shouting that he was going to cut Jacob’s head off. The damage to those cars is the subject of count 2. The defendant left, after which police were called. At about 8.20pm that evening, the defendant went to Samuel’s house driving a different utility. Samuel had two vehicles parked in his driveway; a Ford Focus and a Commodore utility. The defendant drove into the Ford vehicle multiple times, making contact with the vehicle each time, and crushing the rear of the car. Samuel went outside. At that time the defendant was pushing Samuel’s cars up the driveway in a concertina motion causing the Ford Focus to hit the Commodore in front of it. That is count 3. Samuel confronted the defendant but the defendant reversed the utility before driving onto the front lawn and – as charged in count 4 – ramming the corner of Samuel’s house. This smashed some bricks and caused a crack to appear in the side of the house. The defendant reversed away and drove off. The following day, 10 April 2020, at approximately 8.40am, Samuel went outside after he heard a car horn. He saw the defendant in the white Hilux utility. At the time, Samuel was standing in front of his fence near to a large toy car belonging to Samuel’s son. The assault occurred as follows. The defendant looked towards Samuel, accelerated heavily and drove at him. Samuel jumped out of the way and tried to climb over the fence, but his arm was caught between the utility and the fence. He was able to pull his arm out without serious injury but the toy car was crushed, and the fence was damaged. That is count 6. The defendant reversed up the driveway, stopped and got out of the vehicle holding an axe. He walked to the Commodore utility that was parked on the street after being damaged the previous evening. He threatened to smash it. The defendant and Samuel argued for some time before the defendant left. At about 9am the defendant was intercepted by police. Police noticed damage on the vehicle. Later that day, he was arrested and interviewed. He made few admissions, in fact denying or saying “no comment” to the specific allegations. He said that Jacob and Samuel had been calling up during the night “mouthing off”. He described them as the biggest drug dealers in Gagebrook/Bridgewater and said they had said they were going to kill his family. As to Stephen’s vehicles, the Ford Courier and Fairlane were not considered repairable and both were sold for scrap metal. The vehicles were worth about $10,700 and $600 was received. The cost of repairing the Holden Commodore sedan was approximately $5,500 with the repairs to the house costing approximately $5,300. The motorcycle sustained cosmetic damage only and there is no information available about the cost of repair. As to Samuel’s vehicles, the cost of repairing the Ford Focus was estimated to be over $18,000 and given the value of the vehicle being about $10,000, the advice was that the vehicle was not worth repairing. No information is available about the cost to repair the Commodore utility but the toy car which was destroyed was worth $1,000. All in all, the total of the identified and costed damage is about $32,500. I note that the defendant spent six days in custody before being bailed.
The defendant is now 37. He does have a record of prior convictions, most are traffic offences, but there are offences of dishonesty and violence. In March 2015 he was sentenced to 12 months’ imprisonment three months of which were suspended on condition, in relation to two counts of assault, dangerous driving and driving whilst disqualified. The suspended part of the sentence was later activated. On 11 October 2019, in this Court, he was sentenced to six months’ imprisonment wholly suspended for an offence of cultivating a controlled plant for sale. The Crown has made application to activate that sentence. The defendant has not been of good character since this offending. In October 2020 he was sentenced to a short suspended term of imprisonment for driving a motor vehicle with a prescribed illicit drug present in the system, and operating a vehicle in a public place making unnecessary or unreasonable noise. The relevance of this is that the driving included going onto the grass verge outside Samuel’s house, and two days later again going there and being abusive, all of which leading to breach of bail offences. The defendant’s personal circumstances and the circumstances leading to this offending are complex. I have the benefit of counsel’s detailed submissions, along with primary and supplementary psychiatric reports of Dr Patchett dated 21 May and 19 July 2021 and Community Corrections home detention assessment reports dated 2 June and 17 August 2021. The defendant had a disrupted upbringing with his family being nomadic. As a result he had little effective schooling and is essentially illiterate. He has worked for most of his adult life as a labourer in the roofing industry but the work is sporadic. At the heart of the present offending are his family situation and mental health issues. He has a long-term partner. When they met in their teens, his partner had 2 year old twin boys, and a younger boy. They have had two children together. The defendant has always considered the three stepchildren as though they were his own biological children. The true father died when the children were still very young. The broader family unit is a very close knit one. On 14 April 2019 one of the stepsons, Jarrod Turner, was murdered. On 13 November 2020, the offender was sentenced to life imprisonment with a non-parole period of 18 years. The defendant was very significantly affected by the death. Although not the motive spoken of by the sentencing judge, the defendant believed that the idea of the murder was not the idea of the offender, but of members of a family with pro-criminal tendencies for whom, he believed, Jarrod had been selling methylamphetamine. One of the consequences for him was a very high level of concern and sensitivity in relation to commercial dealings in the drug and it seems, heightened vigilance in respect of his family. Jarrod’s death led to a sharp decline in the defendant’s mental health. The psychiatric report notes a range of strong emotions following the death, including anger, anxiety, depression and suicidal ideation. He had been a regular user of cannabis but not, more recently at least, an abuser of alcohol. The use of both substances increased. The trigger for these present events was that he formed the belief that the Daureen family was exerting pressure on his 20 year old son – as well as a friend of the son who lived on the defendant’s property – to become involved in selling drugs. Because of his extreme aversion to the drug and the emotional reaction to what had happened, he decided to retaliate. The Crown do not accept that the Daureen family was so involved, but the existence of a belief by the defendant is not disputed. After these events the defendant’s anxiety and depressive symptoms worsened, and from July 2020 he has had many contacts with mental health professionals, including an admission as an inpatient in October 2020, and a further presentation after an apparent suicide attempt in January of this year. In Dr Patchett’s view, the defendant suffers from adjustment disorder with disturbances of emotion (depression and anxiety) and mental and behavioural disorders due to substance abuse. Dr Patchett observes that the defendant coped very poorly with the tragic killing in April 2019 of his stepson Jarrod with whom he had a close relationship. Dr Patchett says the defendant re-established a heavy alcohol consumption habit and continued long-term daily cannabis misuse as he experienced intense anger and developed a depressive syndrome with associated anxiety. Much anger and resentment was focused on methylamphetamine. Dr Patchett says the defendant was clearly depressed. The defendant seems to have had little insight into the deleterious effects of substance dependence and had not sought any assistance. Dr Patchett recommends treatment for the depressive disorder and substance abuse. In his supplementary report, Dr Patchett addresses the Verdins principles. He confirmed that unresolved strong emotions of grief, anger and depression led to a depressive illness, the emotions and disorder being further accentuated by ongoing cannabis and alcohol abuse. In Dr Patchett’s view, those factors combined to impair the defendant’s ability to exercise appropriate judgment at the time, his ability to make calm and rational decisions and to reduce his ability to exercise appropriate inhibition of impulses to exact revenge and initiate a kind of pre-emptive strike. In Dr Patchett’s view, the defendant’s appreciation of the wrongfulness of his conduct was clouded by feelings of injustice, grief and anger, made worse by the untreated depression and substance misuse. In his opinion, the combination of powerful human emotions including grief, untreated depressive illness and contemporaneous alcohol and cannabis misuse constituted a causal link between the defendant’s state of mind and his offending. Lastly, Dr Patchett says he believes the defendant is likely to experience difficulty within the prison environment with exacerbation of his mental illness arising from possible contact with hostile inmates.
The defendant’s background and personal circumstances, and his explanation for the offending are set out in the community corrections report dated 2 June 2021. The author notes that the defendant had taken important steps towards addressing his criminogenic needs with a goal of demonstrating suitability for a home detention order. It is noted that he recently had ceased alcohol and cannabis use under the supervision of a general practitioner and had agreed to referrals to Adult Community Health Services for psychiatric review and to The Bridge Program. However, the defendant was then assessed as unsuitable for a home detention order, as well as for community service, given his mental health conditions including the substance use disorder for which he had only recently engaged with treatment, recent experiences of suicidal distress, and pending psychiatric review and treatment needs as described by Dr Patchett. After hearing from counsel on 21 July I sought a further report. That report, based on information from his general practitioner and the Bridge Program shows the defendant is engaging positively with treatment and making good progress towards recovery from his substance abuse disorder. He has also stopped drinking and Adult Community Mental Health Services have had no involvement since 11 June at which time it was noted he presented no evidence of acute mood disorder or psychosis. His partner reports a significant improvement in his depression and anxiety symptoms and his motivation to participate in activities that support his wellbeing. He is now assessed as suitable for a short home detention order and for community service. A community correction order is also recommended. The recommended period of the home detention order is six months and that is because of concerns about the possible impact on his mental health.
These acts the subject of the crimes were ones of deliberate, persistent and wanton destruction and damage. The assault of Samuel Daureen by driving at him with the result that he was pinned against the fence is a serious matter calling for condemnation. The defendant’s state of mind made the risks inherent in what he was doing, greater as a consequence. Clearly, these matters give rise to weighty considerations of general deterrence and denunciation. As would be apparent though, the sentencing exercise is a complicated one. In my view there is sufficient causal connection between impaired mental functioning, absent considerations of cannabis and alcohol use, to justify a finding that it contributed to the offending in the ways described by Dr Patchett. Moral culpability is reduced somewhat as a consequence. I take into account the pleas of guilty as showing an acceptance of responsibility and as having utilitarian value. Obviously, the man who killed Jarrod is in prison and I am told the prospects of going to gaol are an extremely frightening one for the defendant. It has severely exacerbated his anxiety. I was told, without dissent, that there are members of the murderer’s family awaiting trial, and that the family has an established network within the prison. It was also put that the complainants have associates in prison. I accept that imprisonment would be likely to exacerbate the defendant’s mental illness and generally be much more difficult for him to endure than the ordinary person. All in all, the approach to this case needs to be a highly individualised one. Although a suspended term of imprisonment may have been justified, and is a significant punishment, I think a sentence that involves some immediate impact on the defendant’s liberty is appropriate. I note the defendant has consented to compensation orders totalling the approximate figure of $32,500. That is of some significance in the sentencing sentence process, given the orders operate as fines.
Mr Pearce, I have set out at some length the facts, your personal circumstances, the recommendations in the reports and the relevant factors to be taken into consideration. I repeat that this is a very serious matter. You deliberately and wantonly damaged or destroyed property, persisted in your efforts to do so – including by returning to Samuel Daureen’s home – and ran a high risk of injuring him. However, there are factors which justify leniency and which count in your favour. As to the suspended sentence, in all of the circumstances, I consider it unjust to activate the 6 month term of imprisonment. However, as you were only a short way into the period of suspension, I will make a substituted sentence. You are sentenced to 6 months’ imprisonment to commence on 13 August 2021, the balance of which from today is suspended on condition you commit no offence punishable by imprisonment for a period of 12 months. That takes into account the six days you spent in custody. I would remind you, of course, that the possession and use of cannabis are offences punishable by imprisonment. On the indictment, imprisonment in general terms is necessary but in your case I think imprisonment provided for by home detention, coupled with community service, is appropriate and justifiable. You are convicted of the crimes. Subject to your consent, I make a home detention order, the operational of which is 6 months. The statutory core conditions are those contained in the Sentencing Act, and they will include electronic monitoring. Those conditions will be set out in writing for you. I specify the home detention premises as [address]. Special conditions of the order are as follows and apply to the operational period of the order:
1 In addition to the core condition relating to electronic monitoring:
(a) you are not to allow anyone else to tamper with, or damage or disable, the device used for the purpose of electronic monitoring;
(b) you must comply with all reasonable and lawful directions in relation to electronic monitoring including those relating to the installation, attachment and operation of a device or system by a police officer, probation officer or prescribed officer, or another person whose functions involve the installation or operation of the device or system.
2 You must not consume alcohol and you must, if directed to do so by a police officer or probation officer submit to a breath test, urine test or other test for the presence of alcohol.
3 You must not:
(a) take any controlled drugs or substances within the meaning of the Misuse of Drugs Act 2001;
(b) any medication containing an opiate, benzodiazepine, bupropion or pseudoephedrine without the provision, on request, of written evidence that such medication has been prescribed or recommended in writing by a pharmacist, and you must on request provide written evidence of such prescription or recommendation.
4 You must remain at [address] at all times unless otherwise approved by a probation officer.
5 You must maintain in operating condition an active mobile phone service, provide the details of that to a probation officer or prescribed officer, and be accessible for phone contact at all times.
6 You must appear in this Court on 8 November at 10am for a review of the order.
I also make a community correction order for a period of 36 months. Special conditions are that:
1 You submit to the supervision of a probation officer as required by the probation officer.
2 That within the period of the order you must satisfactorily perform community service as directed by a probation officer or a supervisor for 210 hours.
3 You must undergo assessment and treatment for drug dependency and for alcohol dependency as directed by a probation officer.
4 For the purposes of this order you will have to immediately report to a probation officer upon your release from the Court. I note that there is a probation officer immediately available in the Court precincts for that purpose.
[The defendant was asked if he consented to the home detention order, and he agreed to its making.]
Given your consent, I make the home detention order as I have outlined. I record a conviction of the summary offence and order your discharge on that matter. I make compensation orders as follows. There will be an order in favour of Stephen Daureen in the sum of $15,583.25, in favour of Samuel Daureen in the sum of $11,600, in favour of Centacare Evolve Housing Ltd in the sum of $5,305.85, and in favour of Jacob Daureen in an amount to be assessed and I adjourn the further hearing of that application to a date to be fixed.