STATE OF TASMANIA v SCOTT ALFRED ROBERTSON 14 MAY 2021
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant, Scott Alfred Robertson, aged 50 at the time of the offending, has pleaded guilty to one count of committing an act intended to cause bodily harm contrary to s 170(1) of the Criminal Code, and I have agreed to deal with an allied summary offence of exceeding .05%.
The complainant is Nigel Claude Hills. He was 44 years of age at the time of the offending. On Thursday, 15 November 2018, both he and the defendant were at a hotel after finishing work.
The men started talking and the defendant purchased some beers for them both. They drank and played a few games of eight ball together. The defendant told the complainant that he was currently living in a swag. The complainant stated that he had a spare room at his house and offered him a place to stay for the night, which he accepted.
The men started discussing people that they both knew and their mutual connections. A female friend of the defendant was brought up during the course of the conversation and the complainant told the defendant that he had been intimate with her approximately 20 years ago.
The defendant suggested that the two men go and have a drink with the woman. The defendant made arrangements with her to go over to her house for a drink, and the men then left the hotel.
The defendant drove the complainant to the woman’s house. The two men planned to travel the complainant’s house after having drinks with her. The complainant had a small black bag with him which he left in the defendant’s utility.
A number of people were present at the house, including the woman and her partner. The defendant and the complainant continued to drink together for over an hour at the house.
At some stage around 7pm, the defendant raised with the woman the earlier comment made by the complainant about them being intimate approximately 20 years ago. This caused tension in the group. As a result the complainant was offended and told the defendant it was disrespectful for him to bring that up in front of the woman’s partner.
The complainant left the house planning was to walk up the road and get a taxi, as his house was about 4km away. He went to the defendant’s vehicle and removed his bag from the passenger seat.
Following this the defendant retrieved a machete that he used for his work from his vehicle and started following the complainant.
The complainant walked to the corner. He heard the defendant yelling out at him in an aggressive way, so he stopped at the corner and turned around. He yelled at the defendant and thought the defendant would go back to the house, so he turned right and walked down the street.
As the complainant was walking down the street, the defendant continued to yell at him. He turned around and saw the defendant at the corner carrying something that appeared to be a weapon. The defendant yelled “I will get you” and “you’re fucked” and continued walking towards the complainant.
The complainant believed something was going to happen so he started looking for something to defend himself with.
The complainant told the defendant to “fuck off” and asked what he was doing. The defendant continued to yell aggressively at the complainant as he walked at a quick pace towards him.
The complainant observed a rotten picket fence up the driveway of a house in the street. This was approximately 160 metres away from the woman’s house, and where the defendant had first started following the complainant. The complainant walked a short distance up the driveway and removed one of the pickets to protect himself with.
What occurred next happened very quickly. However it is apparent that two blows were delivered by the defendant to the complainant’s head with the machete, with the intention to cause the complainant serious injury. This caused the complainant to believe he was going to die, and that he needed to protect himself. After either the first or second blow to the head the complainant struck the defendant with the fence picket to the left arm. By striking the defendant, the complainant was able to overpower and disable the defendant and wrestle the machete from him on the ground. Once the complainant disarmed the defendant of the machete, the defendant got up and ran away.
A number of members of the public in surrounding houses came outside to render assistance to the complainant and called emergency services. Three witnesses heard yelling outside and had observed the defendant with a machete moving towards the complainant. Each of the witnesses viewed the events from a different vantage point, and their observations were slightly different. However they all described the defendant as the aggressor. A number of other nearby residents went outside after the altercation had come to an end and saw the complainant bleeding profusely from the head and ear, with his left ear almost severed.
Members of Tasmania Police arrived within a matter of minutes. Ambulance Tasmania attended the scene shortly thereafter and transported the complainant to the Royal Hobart Hospital after photographs were taken of his injuries.
The complainant was admitted to the Royal Hobart Hospital and received treatment over the course of three days. He had a large laceration through his left ear and scalp behind the ear. His left ear was partially amputated. He had a large laceration on the back of his scalp, measuring approximately 8cm in length. The wounds suffered by the complainant were consistent with two strikes with a machete, one connecting with his left ear and scalp, and the other with the back of his head.
A CT scan was performed at the hospital of the complainant’s head. It was confirmed that there were no underlying fractures of his scalp behind his left ear. However, it was confirmed that, underlying the wound to the back of the complainant’s head, there was a skull fracture. The fracture was to the outer layer of his skull and was a result of the defendant striking him in the back of the head with the machete. According to Doctor Brian Doyle, Deputy Director of Emergency Medicine at the Royal Hobart Hospital, who reviewed the medical notes in respect of the complainant and the photographs of the his injuries, it requires significant force to cause such a fracture to the skull.
The complainant underwent surgery to wash out and repair the partial laceration to his ear and scalp lacerations. The skull fracture suffered by the complainant did not require neurosurgical intervention and it was left to heal over time. The complainant was discharged from hospital on 17 November 2018. He has had an uneventful recovery, the skull fracture was superficial, and he suffers ongoing impairment.
As outlined earlier, after the machete was wrestled from the defendant’s hands he ran away. He went back to the house, where he quickly went inside and informed the occupants that he was leaving, before getting into his vehicle and driving away. He made no mention of the incident that had just occurred.
Constable Keogh was tasked to attend the area and search for the defendant at around 7.15 pm. He located the defendant driving or having just driven his vehicle. He was later submitted to a blood test which revealed a blood alcohol concentration of 0.200g per 100ml of blood.
The defendant had an injury to his left forearm and after being transported to the Royal Hobart Hospital for which he required surgery. It is accepted that he was struck by the complainant with a reasonable degree of force.
The defendant told police that he followed the complainant because he was fearful for the woman’s safety and he wanted to ward him away. He stated that he kept following the complainant and the complainant told him to piss of so he told the complainant one more time not to go near the woman. It is accepted by the Crown that, as the defendant was following the complainant and yelling at him, the complainant was yelling back at the defendant.
There is no victim impact statement, perhaps for reasons which will be come apparent.
The defendant has one prior conviction for common assault in 2003 which was dealt with by way of adjournment for 18 months, to appear if called upon. It must have been of a minor nature. There is no suggestion that the defendant is ordinarily a violent man. Indeed a psychologist’s report from Mr Damian Minehan confirms that. The defendant does however have two prior convictions for exceeding .05%. One in 1993 and one in 2014.
This is a relatively serious example of a s 170 crime which is well known, subject to an unfettered sentencing discretion, to justify a sentence of imprisonment of between three and seven years. However this case has about it a number of exceptional circumstances, which in my view, call for an individualised approach to punishment.
The defendant who, is now 52 years old, was clearly intoxicated when, he without justification, attacked the complainant with a highly dangerous weapon, in a public place. That offers no mitigation, but the reasons underlying his heavy drinking provide an explanation.
The defendant, who identifies as aboriginal, had a disrupted and dysfunctional upbringing at the hands of his violent mother, and was going through a difficult time in his life. His relationship with his partner had broken down and he was homeless. His stepson, for whom he cared until his death, and who he loved greatly who suffered from cerebral palsy died aged 21 and his daughter’s 2 year old daughter had very recently been diagnosed with an aggressive brain tumour for which she required painful and distressing treatment at a Melbourne hospital. The defendant reported strong grief reactions to the Royal Hobart Hospital on 11 May 2018, days before this offending, and was drinking heavily to cope. Mr Minehan confirms this association in his report, to which I have already referred.
The defendant, who suffers from chronic rheumatoid arthritis for which he receives weekly injections to quell his pain, has suffered physical consequences himself as a result of his offending. The blow to his left arm fractured his ulna and he required surgery to insert plates and screws. The fracture was slow to heal and, at the time of the plea in mitigation, part of the fixation had become loose, requiring further treatment.
The defendant, who now lives with his daughter and granddaughter, who is in remission, is remorseful. He has not drunk to excess since the date of this incident, and has let his car registration and driver’s licence expire. This resulted in his use of public transport which, in turn, resulted in him meeting and talking to the complainant on two occasions on a bus. They talked and shook hands. They became emotional and talked about their respective injuries from the night. The defendant apologised, and that apology was accepted. The defendant told the complainant that he would be pleading guilty. They have become friends on Facebook. The complainant expressed sympathy over the death of the defendant’s stepson, and the two men hugged.
As I have said an offence against s 170 is a crime which, unlike many others, does have a tariff. That tariff has, however, always been subject to the unfettered discretion of the sentencing judge and, in recent times, home detention has become a sentencing option, not hitherto available. Home detention is a sentencing modality even in the case of more serious crimes, see the decision of the Court of Criminal Appeal in Director of Public Prosecutions v King and Webb [2020] TASCCA 8. See also comments on passing sentence in Daniel Crisp, 28 January 2021 and Geoffrey Bennett-Scrimshaw 9 December 2020.
The defendant has been assessed as suitable for home detention, and in all of the circumstances of this case, which in my view, call for an individualised approach to sentencing, a home detention order is appropriate. The defendant is convicted of one count of committing an act intended to cause bodily harm, contrary to s 170 of the Criminal Code and exceeding .05, and I impose a global sentence. The defendant is sentenced to 18 months’ home detention.
The order is to contain all the core conditions contained in s42AD(1) of Part 5A of the Sentencing Act 1997.
With specific consideration to s 42AD(1)(g) and (h), the following conditions are added to the order:
1 You must, during all of the operational period of the order submit to electronic monitoring, including by wearing or carrying an electronic device.
2 During the period that you are required to submit to electronic monitoring:
- a) You must not remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
- b) You must not allow anyone else to remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
- c) You must comply with all reasonable and lawful directions given to you in relation to the electronic monitoring, including in relation to the installation, attachment or operation of a device, or a system, used for the purposes of electronic monitoring by:
i a police officer;
ii a probation officer or proscribed officer; or
iii or any other person whose functions involve the installation or operation of a device, or a system, used for the purposes of electronic monitoring.
The following special conditions are added to the order:
1 You must, during the operational period of the order, remain at [address], all times unless approved by a probation officer.
2 Immediately upon your release from Court, you must attend the Community Corrections office at 144 Bathurst Street, Hobart for induction onto this order.
3 You must, during the operational period of the order, maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections and be accessible for contact through this device at all times.
4 You must submit to the supervision of a Community Corrections officer as required by that officer.
5 You must not, during the operational period of the order, take any illicit or prohibited substances. Illicit and prohibited substances include:
a Any controlled drug as defined by the Misuse of Drugs Act 2001;
b Any medication containing an Opiate, Benzodiazepine, Bupropion, Hydrochloride or Pseudoephedrine, unless you provide written evidence from your medical professional that you have been prescribed the relevant medication.
6 You must not, during the operational period of the order, consume alcohol, and you must, if directed to do so by a police officer or Community Corrections officer, submit to a breath test, urine test, or other test, for the presence of alcohol.
In addition I make a community correction order for a period of 36 months with all of the core conditions, and the special condition that you, during the operational period of the order, undertake 240 hours of community service.
You are disqualified from holding or obtaining a drivers licence for a period of 24 months from today.