STATE OF TASMANIA v BENJAMIN WILLIAM RAE GEASON J
COMMENTS ON PASSING SENTENCE 3 JULY 2019
Mr Rae you pleaded guilty to one count of assault. The offence was committed on 20 November 2017 at Bilton Lodge, a supported accommodation facility in Claremont. At the time, both you and the complainant were residents of the lodge.
At about 7:30 pm on 20 November 2017, the complainant was walking towards his unit when you say he began making comments to you.
You grabbed the complainant around the neck and pushed him whereupon he fell into the window that was behind him, before falling to the ground in front of the window. There was broken glass around him.
Two other residents of the complex heard the sound of glass smashing and ran to the smoking area where they saw the complainant on the ground. They saw you standing over the complainant, pointing and shouting aggressively at him. You left once the two other residents arrived, calling out to the complainant whilst leaving “lucky I didn’t kill you”.
The supervisor of the facility went looking for you and found you sitting in the car park. In response to her asking you what happened you stated “he started mouthing off at me. I pushed him and he went through the window and I left him there”.
You were arrested at the scene and transported to the Hobart police station where you participated in a video record of interview under caution. At the conclusion of the interview you were charged, processed and detained for court.
I have listened very carefully to what has been put to me today by the State and by Mr Cangelosi on your behalf. You present before the Court without prior conviction and I note, and it is in your favour, that there has been no further offending since the commission of this crime. I am satisfied that the process of engagement with the Court, with a lawyer, all that goes with being in Court will have had a salutary effect upon you, so I am satisfied that you are unlikely to reoffend so long as you maintain control over your condition, and I suspect tied in with that, is the issue of your response to situations such as that which occurred on this occasion when words were directed at you which you found offensive and you responded. You need to learn to bring your reactions under control so that you do not find yourself in this situation again.
But, as I say, based upon what I have heard, based upon what I have read, I am satisfied that the need for personal deterrence is reduced. Of course a sentence is required to have a punitive element and I don’t ignore that obligation.
The aspect in respect of which I pause is the issue of general deterrence and to a lesser extent, the need to vindicate your victim. I accept what has been put to me in relation to that aspect that you did not stay to render any assistance. After this episode you simply walked away. But you are not charged with anything relating to that, but in terms of the way in which you responded at the time, I think the victim of this offence is entitled to receive from the Court some acknowledgment of the fact that this was a serious episode for him and a matter that will have been upsetting to him. I do not have a victim impact statement so I cannot put it higher than that, but I expect that that would have been the result.
He used words to you that you say he ought not to have, but words are not enough, are they, to justify the sort of response that you engaged in? It is on that basis, and because I think others need to recognise that this sort of behaviour no matter how out of character it might be, cannot be tolerated that I have reached the conclusion, and that is despite the helpful submissions made on your behalf, that a conviction ought to be recorded.
Mr Rae, pursuant to s7(f) of the Sentencing Act, I record a conviction and adjourn the proceedings for a period of 12 months on your giving an undertaking to be of good behaviour for that period.