STATE OF TASMANIA v HARRISON FREDERICK REYNOLDS, JMARLI REX BURGESS and ZACHARY HAROLD BLYTH
25 NOVEMBER 2022
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendants are Harrison Frederick Reynolds, Jmarli Rex Burgess and Zachary Harold Blyth. At the time of the offending, the defendant Reynolds was 20 years of age, the defendant Burgess was 19, and the defendant Blyth was 18.
On 17 July 2021, at around 10.00pm the three defendants walked together to the Rosny Bus Mall located on Bligh Street, Warrane where the complainant, Muhammad Asif Ismail, aged 35, was walking through.
Mr Ismail was grabbed from behind. One defendant grabbed him by his jacket and pulled him backwards. He tried to pull himself away from the defendant but before he could call police he was punched to the back of his head. He was punched to the head and back six to seven times. He fell to the ground and was kicked and punched while he was on the ground to the stomach and back. While on the ground his wallet fell out of his pocket. Reynolds took his wallet containing $650, and Reynolds and Blyth ran away up Bayfield Street.
Mr Ismail attended the Rosny After Hours Doctor following his attendance at the local Police Station. He had a laceration and swelling on his right check and a laceration on his left lower lip. He reported tenderness to his shoulders, severe pain over his lower chest and lower back, and was complaining of a headache.
Subsequent police investigations revealed that the offending was captured on CCTV footage from the bus mall, and I have viewed that today. Following the offending in the bus mall, the three defendants took a taxi from Warrane to Davey Street near St David’s Park.
Shortly before 11.00pm Jamie Welling aged 21, Thomas Styles aged 20 and Cody Geeves aged 20, entered St David’s Park and were walking along a pathway as the three defendants were walking along Davey Street. Mr Geeves spotted the three defendants, said “g’day” and asked how they were going. The three defendant responded aggressively and started yelling. One of the defendants yelled “give us your phones“. The three complainants initially thought the defendants were joking, but the three defendants then immediately ran into St David’s Park towards them.
One of the defendants approached Mr Welling and pulled out a knife. The defendant said “I will slit your throat if you don’t give me your wallet and all your money”. Mr Welling told the offender that he didn’t have a wallet but the offender said he could see it and said “I want all your cash”. Mr Welling threw his wallet to the offender and when the offender asked for his pin code he gave a fake one. The defendant yelled “do not tell anyone” a few times at Mr Welling before walking away. Mr Welling ran away from the defendant and called 000.
One of the defendants approached Mr Styles and started punching and kicking him all over his body. Mr Styles put his hands up to protect himself and fell to the ground. He was kicked continuously to the face. He was kicked by at least two of the defendants to the front and back of his head repeatedly while he was on the ground. At some point during the attack one of the defendants took Mr Styles’ phone from his pocket. Mr Styles was not moving, his face was covered in blood and he was unable to defend himself. One of the defendants said “watch this” as Mr Styles was being attacked.
Mr Geeves tried to intervene when two of the defendants were punching and kicking Mr Styles on the ground, in an attempt to distract them so that they would leave Mr Styles. When he did so, the third defendant approached him and said “what have you got“. Mr Geeves started running backwards and threw a tobacco pouch and his wallet at the defendant. The defendant then started punching Mr Geeves to the face and head repeatedly, causing him to fall to the ground. Mr Geeves then handed the defendant his iPhone XR and the defendant stopped attacking him.
Two friends of Mr Styles, Elijah Moore aged 19 and Liam Maher aged 20, were walking through St David’s Park when Mr Styles was being attacked. They ran over to help Mr Styles while he was on the ground. Mr Moore intervened and grabbed one of the defendants to prevent the continued attack. Mr Moore and one of the defendants wrestled on the ground and a second defendant then punched Mr Moore to the head.
Mr Maher also intervened and told the defendant to “fuck off” and leave Mr Styles alone. In response, he was punched to the left hand side of his face by one of the defendants.
By this stage, other members of the public had also entered the park and observed Mr Styles being attacked. Someone in the park yelled out “cop” and the defendants fled.
Mr Welling sustained no physical injuries. Mr Styles had significant bruising and swelling to the left eye, some bruising of the right eye, cuts to his left cheek, bruising and swelling across his forehead, a laceration on the inner lip, swelling and tenderness to the back of his head and scattered bruises and cuts to his forearms and hands. Scans revealed that he sustained a broken left cheekbone, a broken nose, and a likely non-displaced fracture of the bottom of the left eye socket. He was admitted overnight for observation and his injuries were left to heal over time.
Mr Geeves sustained swelling and bruising to his right eye, a cut underneath his right eye, and swelling to his left eye. He reported that his nose and teeth were sore, and that his head was aching. Mr Moore had swelling to the left side of his forehead and Mr Maher had swelling under his left eye.
It is accepted by the Crown that the defendant Burgess, did not know that one of the other defendants had possession of a knife and so is criminally responsible only for an aggravated robbery of Jamie Welling, in respect of which he has pleaded guilty on an amended Indictment.
Shortly before midnight on the same evening, taxi driver Sagar Shrestha was parked outside the Republic Bar on Elizabeth Street. The defendant Burgess entered the back seat of Mr Shrestha’s taxi and Blyth entered the front seat. Blyth asked Mr Shrestha to take them to Gormanston Road, Moonah and Mr Shrestha agreed.
As Mr Shrestha drove along Albert Road, Blyth told him to stop outside the Albert Road Takeaway Store. When Mr Shrestha stopped the taxi, the fare was $14. Blyth handed him a $20 note and as Mr Shrestha pulled out his wallet to find change, Blyth attempted to snatch his wallet. Mr Shrestha managed to get $6 change from his coin box to give Blyth, while Blyth was still trying to snatch his wallet. Blyth and Burgess then hit Mr Shrestha to the head multiple times. Burgess got out of the taxi and went around to the driver’s side door. He opened the door and proceeded to punch and kick Mr Shrestha a number of times before slamming the door while Mr Shrestha’s leg was still in it.
Blyth then grabbed the camera which was lodged on the front windscreen of the car and he tried to rip it off. This caused the windscreen of the vehicle to crack.
Both Blyth and Burgess ran away along Gormanston Road, and Mr Shrestha called 000. Members of Tasmania Police attended within minutes. Mr Shrestha had bruising and swelling to his forehead, an abrasion to his scalp and an abrasion over his right index and ring fingers.
When members of Tasmania police attempted to place Burgess under arrest, he spat at Constable Caitlin Francis, causing saliva to land on her forehead. He then acted aggressively towards police and refused to place his hands behind his back. He was then restrained and transported to the Hobart Police Station. During a search conducted at the remand centre, police located two snap lock bags containing methyl amphetamine in Burgess’ sock.
Each defendant has been in custody since their respective arrest dates in the early hours of 18 July 2021.
In relation to Burgess, discussions as to a plea of guilty have been ongoing about the possible resolution of his matters since 8 December 2021.
In relation to Reynolds, a proposal was provided by his counsel to the Crown on 14 February 2022. That was rejected. It was then indicated on 25 July 2022 that the charges against him may be capable of resolving by way of a plea of guilty.
In relation to Blyth, it was indicated in court on 25 July 2022 that his matters may be capable of resolving by way of pleas of guilty.
I have read victim impact statements from Mr Geeves and Mr Shrestha.
The aggravated robbery against Mr Geeves occurred on his 21st birthday. As a result of the incident, he is challenged in public places and even in some cases the workplace. He also struggles to trust other civilians and is anxious around crowds. Going to functions and gatherings, even walking during the night or in the dark “comes with a mental struggle” for him.
The assault against Mr Shreshna caused cuts and bruises on his head and face from being continuously punched more than thirty times. He spent about seven hours at the hospital for treatment. Since the day of the assault he no longer drives at night because he is too scared of being assaulted again. As a result he has lost money. His wife and nine year old son were very upset by what happened to him and his son is frightened that he will be assaulted again.
Each of the defendants have relevant prior convictions for offences of violence and dishonesty.
The defendant Reynolds has pleaded guilty to one count of aggravated armed robbery, three counts of aggravated robbery and two counts of assault.
He comes from a disadvantaged background and it is specifically submitted on his behalf that the principle in Bugmy applies and should operate to moderate sentence. He is now 22 years of age, but obviously still a relatively young offender at the time of these crimes.
He grew up predominantly with his maternal grandmother and partner. As an 18-month-old infant, he was placed in their full-time care, as his mother was addicted to drugs and alcohol and was therefore unable to provide a sufficient standard of care for him. His grandmother was an alcoholic and would, along with her partner, often physically and verbally abuse him. The result was that the defendant Reynolds left home at the age of 14 and had an unstable accommodation history plagued with multiple periods of homelessness. His formal education was also substantially disrupted part way through grade 11 because of his decision to leave home.
By the time he was 14 years of age, he had met his peer group while living in homeless shelters. They negatively influenced him and his offending commenced. He asserts that his friends became like family to him as they were the only support he felt he had.
At the age of 14, he started consuming large quantities of alcohol on occasions and started experimenting with illicit drugs. He has been a daily user of cannabis ever since then, and has used methyl amphetamine and ecstasy on a regular basis since the age of 18.
He asserts that at the age of 14, he was robbed by three men who stole his wallet and assaulted him as he was walking through a park, which resulted in him sustaining a broken nose, an experience which has been suggested as contextual for the nature of his offending in the company of the other defendants who, as I have said, he regarded as family.
He was diagnosed with ‘major depression and anxiety’ three to four years ago. He disclosed an attempt to hang himself at school when he was 13 years of age. He was saved by other students and taken to hospital where he was prescribed antidepressants for chronic depression and anxiety; a prescription which, the defendant reports, was not filled out by his grandmother.
While he has reported that he is still experiencing symptoms of depression, he is no longer contemplating suicide. He has also been diagnosed with complex Post Traumatic Stress Disorder, which is noted as attributable to the abuse he suffered whilst living with his grandparents.
It is submitted that he pleaded guilty at the earliest opportunity following the end of the plea negotiations with the Crown. It is submitted that this is indicative of his remorse and acknowledgment that he is ashamed of his actions. He acknowledges that his actions caused significant physical and mental harm to the complainants. He also acknowledges the impact his actions have had regarding the social and financial circumstances of the complainants and is sincerely apologetic for his actions. During the period that these crimes were committed he was consuming drugs and alcohol to the point that he had no control over his actions. He is not eligible for a drug treatment order because of the nature of the injuries caused during the commission of his crimes.
He was subject to a period of suspended imprisonment when these crimes were committed. Application is made pursuant to s 27(4) of the Sentencing Act 1997 to breach that six months suspended sentence imposed in the Hobart Magistrates Court for offences including burglary and stealing. That application is not opposed, no cause is shown and it is not suggested that it would be unjust to activate the sentence.
He was also subject to an 18 month suspended detention order imposed in the Hobart Supreme Court on 23 March 2021in respect of the crime of armed robbery. Application to contravene pursuant to s 94(1) of the Youth Justice Act 1997 is made by the State. Under the Act, I have a discretion as to any restored sentence without the presumption in favour of activation that applies under the Sentencing Act. However, as I have said, no cause is shown as to the application and it is not suggested that the sentence ought not to be activated.
The defendant was also subject to a Community Correction Order. Application is made pursuant to s 42AW(1)(a) of the Sentencing Act to breach that order imposed in the Hobart Supreme Court also on 23 March 2021.
The defendant Blyth has pleaded guilty to one count of aggravated armed robbery, three counts of aggravated robbery, one count of attempted aggravated robbery by attempting to steal a wallet, two counts of assault and one count of unlawfully injuring property.
He is a 20 year old aboriginal man. He was 18 at the time of the offending and may be considered as a youthful offender. Like the other defendants, he also comes from a disadvantaged background.
When he was aged 10 or 11 his parents separated. He and his siblings remained living with their mother. His father was an abusive alcoholic. He was regularly physically and emotionally abusive to the defendant who was small for his age and gentle in nature. His father would taunt him with insults and would physically assault him with the explanation that he was doing so in order to “toughen him up” to better equip him to protect his younger sister.
He was bullied relentlessly during his high school years largely because he had a sibling with a disability. Despite that, he was a proficient student and successfully completed his education through to the end of year 10.
He was first exposed to the criminal justice system in year 10 when he was involved in an incident at school which saw him charged with four counts of common assault.
Following year 10 he commenced year 11 but things quickly deteriorated for him. He had ended his relationship with his long term girlfriend who had been residing with him at his mother’s residence. His mother sided with his ex-girlfriend in the separation and as a result she decided that he could no longer live with her. As I understand it he is now again in a stable, long-term relationship
At that time however, he was homeless at the age of 16. He resided on the streets for a period before a local heavy drug user, offered him a place to stay in his unit in Claremont. The defendant slept on the couch there for a period. I am told that the living conditions were appalling, but during that period, to his credit, he rejected all offers of drugs from his housemate and continued to go to school each day at Claremont College. He continued with his education until he was involved with another fight with his high school bully which saw him expelled.
Eventually he moved in with a friend. Whilst those living conditions were more sanitary and he had his own bedroom, extensive drug use occurred in that house and eventually he succumbed and accepted an offer of an ice pipe. Until that point he had never used illicit substances. As is sadly, so often the case, from that point he very quickly became a habitual drug user and then an addict.
He was 17 years of age at that time and again, as is often the case, he started committing offences of dishonesty to obtain money to purchase drugs. That offending starts at page two of his record of prior convictions with the sentence date of 1 December 2020. As a result, he was eventually remanded to Ashley Youth Detention Centre and once bailed he was bailed to reside at a youth shelter. It was through living at that shelter that he became acquainted with his co-accused. He was residing at the shelter at the time of this offending.
It is submitted that the offending was opportunistic and not pre-meditated, that it was entirely unsophisticated and that no attempts were made by him to conceal his identity. All of that is true. I am also told that it was not he who exposed the knife in the robbery in St David’s Park and the State is not in a position to dispute that.
It is submitted that he is not past the point of rehabilitation. He has now detoxed from methyl amphetamine and has had significant time to contemplate his future. He says that he does not want a life of crime and is motivated to continue to abstain from methyl amphetamine use following his release. I am told that he is remorseful. He has had considerable time to reflect on how his actions have impacted on the victims and on his own family and he is extremely ashamed as a result.
He was subject to a Community Correction Order when these crimes were committed. Application is made pursuant to s 42AW(1)(a) of the Sentencing Act to breach the Community Correction Order imposed on 1 December 2020 and which was confirmed on 4 January 2022.
He was also subject to a two month period of suspended imprisonment when these crimes were committed. Application is made pursuant to s 27(4) of the Sentencing Act 1997 to breach the partially suspended sentence imposed on 13 May 2021 in the Hobart Magistrates Court for offences including burglary and assault and unlawful possession of property.
No cause is shown to the application to breach the suspended sentence imposed on 13 May 2021 and is accepted him that the suspended sentence will be activated.
The defendant Burgess has pleaded guilty to four counts of aggravated robbery, one count of attempted aggravated robbery by attempting to steal a wallet, two counts of assault, and to summary charges of assaulting a police officer, resisting arrest and possessing a prohibited substance.
I have agreed to deal with the pleas of guilty to the summary offences pursuant to s 385 A of the Criminal Code.
When members of Tasmania Police attempted to place Burgess under arrest he spat at Constable Caitlin Francis, causing saliva to land on her forehead. He then acted aggressively towards police and refused to place his hands behind his back. He was then restrained and transported to the Hobart Police Station, and during a search police located two snap lock bags containing methyl amphetamine in his sock.
The defendant Burgess is the fourth eldest child from his parents’ union and has six siblings. He is an aboriginal man and, like the defendant Reynolds, he comes from a seriously disadvantaged background.
He did not grow up with his family unit as his siblings and he were removed from their parents care by Child Safety Services when he was an infant due to drug use, violence, and neglect. He was placed in foster care with his older brother. His older sisters were placed together in a different family, and he does not know where his younger siblings were placed when removed.
He recalls living with at least two separate foster families, and whilst this offered some stability, his upbringing was marred by violence and conflict. The last placement was until he turned 18 years of age. He experienced poor mental health during his teenage years and no treatment for this. He did not form strong relationships through school, however did complete grade 11 in 2019 and reports having adequate literacy and numeracy skills. He felt resentment towards his guardians and as such he left home soon after he turned 18 years of age.
Without a stable home or financial independence, however, he started couch surfing and using illicit substances. He commenced criminal offending for the first time in his life and this offending escalated and he was ultimately sentenced to periods of imprisonment. He had been released from prison on 15 June 2021. When released, he was once again rendered homeless with limited supports in place.
Soon after that release from custody, his grandmother passed away. Whilst they were not close during his upbringing, he had reconnected with her in recent years and her death significantly impacted his mental health and he started using alcohol to excess and using illicit substances. He connected with previous associates, including the defendants Reynolds and Blyth.
He also has been in custody since 18 July 2021 and his father passed away at the end of 2021. They were unable to organise telephone appointments prior to his death, which was devastating for the defendant. The loss of another family member has been difficult for him to deal with and to mourn appropriately whilst in custody. He remains in contact with his mother who resides in South Australia, his older siblings in Tasmania and Mr Mark Watterson, a youth officer from Karadi Aboriginal Corporation who has supplied a reference.
The defendant is remorseful for his conduct and it is submitted on his behalf that whilst it is conceded that his offending is serious where personal and general deterrence are primary considerations, he nonetheless remains a young man from a troubled background who is capable of and wanting to rehabilitate.
He was subject to a ten month period of suspended imprisonment when these crimes were committed. Application is made pursuant to s 27(4) of the Sentencing Act to breach that suspended sentence imposed on 3 March 2021 in this Court for aggravated burglary and stealing. It is not submitted that it would be unjust to activate that sentence.
He was also subject to a Community Correction Order when these crimes were committed. The special conditions of that order were that he submit to the supervision of a probation officer as required by that officer, and undergo such assessment and treatment for drug dependency and alcohol dependency as directed by his probation officer. Application is made pursuant to s 42AW(1)(a) of the Sentencing Act to breach the Community Correction Order imposed in this Court, also on 3 March 2021. That application is not opposed although it is noted that he did attend Community Corrections (Glenorchy) after his release from custody, as required, however due to being again remanded, he was unable to comply with the terms of the order.
Application is made by the State pursuant to s 11(1)(a) of the Crime (Confiscation of Profits) Act 1993 that the flick knife located and seized by police from the laneway connecting Gormanston Road and Sunderland Street, Moonah be forfeited to the State of Tasmania pursuant to s 16 of the Act (police exhibit barcode 374855625). For the purpose of s 16(4), the estimated value of the knife is $50.00. I make that order.
Pursuant to s 68(1) of the Sentencing Act 1997, a compensation order is sought by the State in favour of Thomas Styles in an amount to be assessed in respect of the damage to his IPhone. I make that order and adjourn the assessment sine die.
Pursuant to s 68(1) of the Sentencing Act, the State seeks a compensation order is sought in favour of Sagar Shrestha in an amount to be assessed in respect of the damage to his car windscreen. I make that order and adjourn the assessment sine die.
I turn now to sentence. The defendant Reynolds is convicted of one count of aggravated armed robbery, three counts of aggravated robbery and two counts of assault.
I activate the suspended sentence imposed on 22 May 2020 in the Hobart Magistrates Court for offences including burglary and stealing and backdate that sentence to 29 October 2021.
I activate the 18 month suspended detention order imposed in the Hobart Supreme Court on 23 March 2021 for the crime of aggravated armed robbery and back date that sentence to 29 March 2022. I specify the earliest release date from that term, were it not for the sentence I am about to impose, will be 29 January 2023.
I cancel the Community Correction Order imposed in the Hobart Supreme Court on 23 March 2021 and make no further order.
I take into account all that has been said on behalf of the defendant Reynolds. In particular I note his age, his disadvantaged background, his remorse, his potential and desire for rehabilitation and his relatively early indication of his intention to plead guilty to the charges against him. I also take the principle of totality into account as well as the fact that his offending on this night was in the nature of a spree, closely linked in time.
However, as was the case with each of the defendants, I accept the sentencing submissions of counsel for the State that the defendants engaged in multiple, serious and separate acts of violence. Each crime involved unprovoked, considerable violence and all crimes were committed against strangers. The crimes were committed in public places, undermining the community’s feeling of safety and security. The defendants each have relevant prior convictions. Whilst each defendant is considered as a youthful offender, the emphasis on rehabilitation in sentencing such offenders must be moderated where, as here, the sentencing is for serious crimes of violence where the defendants have been given a number of prior opportunities aimed at rehabilitation.
The circumstances of the offending and the circumstances of each defendant requires a sentence which takes into account the need for general and personal deterrence, together with denunciation and punishment.
In respect of the defendant Reynolds, I impose a single sentence of three years and six months imprisonment, to commence at the expiration of the restored sentence under the Youth Justice Act and I order that the he not be eligible for parole until he has served half of the sentence of three years and six months’ imprisonment I have just imposed.
The defendant Blyth is convicted of one count of aggravated armed robbery, three counts of aggravated robbery, one count of attempted aggravated robbery by attempting to steal a wallet, two counts of assault and one count of unlawfully injuring property.
I activate the suspended sentence of two months’ imprisonment imposed on 13 May 2021 and backdate that sentence to 18 July 2021.
I cancel the Community Correction Order of 11 December 2020 and make no further or other order.
I also take into account in this case all that has been said on behalf of the defendant Blyth. In particular I note his age, his disadvantaged background, his remorse, his potential and desire for rehabilitation and his relatively early indication of his intention to plead guilty. I also take the principle of totality into account and, again, the fact that his offending on this night was in the nature of a spree, closely linked in time. But similarly in this case, I accept the sentencing submissions of the State already referred to.
In respect of the defendant Blyth, I impose a single sentence of four years and six months imprisonment, backdated to 18 September 2021 and I order that he not be eligible for parole until he has served half of that sentence.
The defendant Burgess is convicted on four counts of aggravated robbery, one count of attempted aggravated robbery by attempting to steal a wallet, two counts of assault, one charge of assaulting a police officer, one of resisting arrest and one charge of possessing a prohibited substance.
I activate the suspended sentence of 3 March 2021 of ten months’ imprisonment and backdate that sentence to 18 July 2021.
I cancel the Community Correction Order of 1 March 2021 and make no further or other order.
I also take into account in this case, all that has been said on behalf of the defendant Burgess. In particular again, I note his age, his disadvantaged background, his remorse, his potential and desire for rehabilitation and his relatively early indication of his intention to plead guilty to the charges against him. I also take the principle of totality into account and the fact that his offending was, as with the others, on this night in the nature of a spree, closely linked in time. And similarly in this case, I accept the sentencing submissions of the State already referred to.
In respect of the defendant Burgess, I impose a single sentence of four years’ imprisonment, backdated to 18 May 2022 and I order that he not be eligible for parole until he has served half of that sentence.