STATE OF TASMANIA v KAYDON POOLE 6 AUGUST 2021
COMMENTS ON PASSING SENTENCE BRETT J
Mr Poole, you have pleaded guilty to one count of assault.
The crime was committed on 29 January 2019. You and the complainant were known to each other and there was bad blood between you. You met by chance on the Main Street in Sheffield at about 8pm. An argument developed which was quickly followed by pushing and then fighting. It is accepted by the Crown, and agreed by you, that the violence started as a consensual fight between you, and up to a certain point, the force used by you was not unlawful. During the course of this phase of the fight, you and the complainant were punching each other and you knocked him to the ground at least once. When he got up, you punched him into the back of the head from the side. It is the prosecution’s position that the consensual fight came to an end at that point, and that any further violence was unlawful. You punched him again causing him to stumble back and fall to the roadway. You then picked up your bag and were about to walk away, but you then returned and started throwing further punches at the complainant as he was getting up from the road. At this point, he was unsteady and groggy but you continued to punch him. This included a forceful punch that caused him to fall to the ground a third time. He remained unmoving for approximately a minute, and then got up and walked away. At that point, he was visibly unsteady on his feet. You did not provide any assistance to him.
There is a dispute over the question of when the violence became unlawful. You concede that the force applied by you went beyond the ambit of the original consent to fight. You claim, however, that this did not occur until the point where you returned after picking up your bag and walking away. Because the claim of extra violence aggravates your culpability, the onus is on the prosecution to establish its position beyond reasonable doubt. The only evidence presented by the prosecution is the CCTV recording of what took place. It is impossible for me to be satisfied beyond reasonable doubt, on the basis of these images alone, that the violence which precedes your return was not within the ambit of the original consent. There is no evidence before me which would support findings and permit me to draw inferences about the ambit of violence agreed to expressly or implicitly by the complainant. The prosecution has elected not to present any evidence from him. Accordingly, I intend to proceed on the factual basis contended by you.
In any event, I do not think that the precise point at which the force applied by you became unlawful makes a great deal of difference to your culpability. On any view, you and the other man were both complicit in commencing the violence. At least by the time conceded by you as marking the commencement of the unlawful application of force, that is, when you have returned to continue punching him despite the fact that he is getting up from the ground, it is clear that it was unnecessary for you to engage in any further violence. It is also clear that, at this point, he was visibly affected by the blows he had already sustained and was vulnerable and virtually helpless. He did not present any kind of threat to you, and this must have been obvious to you. Your continuation of the assault on this man by punching him hard to the head was dangerous, brutal and cruel. It was also completely unnecessary.
The complainant was subsequently treated in hospital for his injuries. A CT scan showed that he had suffered fractures to the right side of the skull, left cheekbone and eye socket. There was bleeding into and bruising of the brain tissue of the right and left frontal lobes, extensive subarachnoid bleeding and bilateral bleeding. He was placed in an induced coma and transported to the Royal Hobart Hospital. He underwent surgery and remained in ICU until he was discharged against medical advice by his father almost 3 weeks later. His continued to receive follow-up outpatient treatment for a considerable time. There has been a considerable deterioration of his mental health. A psychiatrist has expressed the opinion that he is suffering from major depression as a consequence of the assault and head injury. His impact statement describes the ongoing practical impact on his life and that of his children and parents. It is clear that the impact has been severe and is ongoing.
An issue arises as to the relevance to sentence of the complainant’s injuries and ongoing mental and physical health problems. Clearly, you cannot be punished for mental elements which would elevate the crime of assault to a more serious crime, for example, causing grievous bodily harm. Hence, you cannot be sentenced on the basis that you intended or actually foresaw that your conduct may cause grievous bodily harm. Further, it is not possible for me to find on the evidence, beyond reasonable doubt, that the unlawful application of force, as opposed to what had gone before, actually caused the relevant injuries. Accordingly, your culpability is not aggravated by the actual causation of those injuries. However, the fact that the assault was objectively capable of causing serious injury is itself a significant aggravating factor. It is relevant that you punched this man to the head with enough force to knock him to the ground, in circumstances where he had just got up after having been knocked down twice before, as a result of blows to the head. Further, when you punched him, he was clearly injured and helpless. These considerations aggravate both the objective seriousness of the crime and your moral culpability for it. There is no question that general deterrence is an important sentencing consideration.
On the other hand, mitigation arises from the fact that the initial exchange of blows was not unlawful and was participated in willingly by the complainant. In this sense, it could not be said that your attack was other than spontaneous. You were heavily intoxicated at the time, which supports a finding as to the spontaneity of the attack, but does not otherwise provide you with mitigation.
You were 19 years of age when you committed this crime. You are now 22. You had no prior convictions whatsoever, but you have since accumulated a significant number of convictions. These are mostly breaches of bail, minor dishonesty and some driving offences. You have also been subsequently convicted of some common assaults committed prior to the crime with which I am dealing. It is clear from the history provided to me by your counsel that you have had a difficult start to life. Your parents separated when you were very young, and your father who cared for you after the separation passed away when you were 11. You were then cared for by your older sisters, who were themselves young adults. Your education suffered from all of this, and you have developed problems with alcohol and illicit drugs. Community corrections have recommended some ongoing supervision.
Your counsel submits that you are remorseful for your actions and the consequences suffered by the complainant. I accept your guilty plea as some evidence of this remorse.
There is no question that the seriousness of this crime requires the imposition of a sentence of imprisonment. There is a considerable need to deter serious violence of this nature. The question is whether this sentence should be wholly or partially suspended. Having regard to the spontaneous nature of the attack, your age and lack of prior convictions at the time that you committed this crime, and your personal background, which suggests that it is desirable to support your rehabilitation, I have decided to wholly suspend the sentence. However, it is appropriate in my view that you perform community service in order to contribute to the punitive effect of the sentence.
Accordingly, the orders I make are as follows:
1 You are convicted of the crime to which you have pleaded guilty.
2 You are sentenced to a global term of 12 months’ imprisonment, all of which will be suspended for a period of 24 months on the following conditions:
(a) That you are not to commit another offence punishable by imprisonment during that period.
(b) That you will be subject to the supervision of a probation officer. You must comply with this condition for a period of 24 months. The 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 today. In addition to the core conditions the order shall also include the following special conditions:
(1) you must, during the operational period of the order:
(i) attend educational and other programs as directed by the court or a probation officer;
(ii) submit to the supervision of a probation officer as required by the probation officer;
(iii) undergo assessment and treatment for drug dependency as directed by a probation officer;
(iv) submit to testing for drug use as directed by a probation officer;
(v) undergo assessment and treatment for alcohol dependency as directed by a probation officer;
(vi) submit to testing for alcohol use as directed by a probation officer;
(vii) submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
(c) A further condition of suspension is that you will perform community service for a period of 98 hours. The Court notes that the sections referred to in s 24(5A) of the Sentencing Act apply to this condition. For the purpose of those provisions:
(i) you must report to a probation officer at the office of community corrections in Devonport within 3 clear days of today and
(ii) the operational period of the order is 24 months.