STATE OF TASMANIA v FREDERICK CRAIG RUSHTON 31 OCTOBER 2022
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant, Frederick Craig Rushton, aged 26 at the time of the offending, has pleaded guilty to two counts of assaulting the complainant, Lachlan Douglas Morrison, who was 21 years of age at the time and one count of assaulting James Craig McInerney.
The defendant and the complainant Morrison were known to one another as acquaintances although they had not seen each other in approximately 5 years.
In the afternoon of 30 October 2020, they were both at the Waterfront Hotel in Bellerive. They drank together before going to the Mornington Discovery Park, where the defendant was residing at the time. They were accompanied by the complainant’s work colleagues and a friend of the defendant.
The group continued to drink together in the defendant’s cabin until, shortly before midnight, the defendant and one of the complainant’s colleagues, Stephen Smith, were involved in a physical altercation. The complainant intervened and pushed the defendant, in an attempt to separate the men. In response, the defendant slapped the complainant twice to the left side of the face with an open palm.
The complainant decided to leave the defendant’s cabin at this point, taking Mr Smith with him. However the defendant followed the two men approximately 100 metres up the road to the Mornington Inn where the defendant came at the complainant and punched him to the nose, causing his nose to bleed.
As a result of the assaults the complainant’s left eye was swollen and bruised, and his left cheek bone was swollen. He did not require medical treatment.
In May 2021, the complainant – James Craig McInerney – was residing at Flint House in New Town where the defendant was also living.
The complainant had been aggrieved with the defendant as a result of the complainant’s actions towards the defendant’s girlfriend.
At around midnight on 28 May, the complainant was in his room. The defendant walked past the door and a conversation took place between them. The defendant entered the complainant’s room and hit the complainant to the head about 5 or 6 times with his fists. The complainant put his hands up to protect himself and asked why he was hitting him. He asked him to stop numerous times. The defendant then picked up a golf club, which was in the room. The complainant laid on his bed and the defendant swung the golf club at him. The defendant struck the complainant to the left forearm with considerable force.
Police and ambulance arrived and took the complainant to hospital. He was assessed by an orthopaedic surgeon who noted that he had a small puncture wound at the mid forearm which was felt to represent a likely bone fragment penetrating through the skin associated with a left a left mid shaft radius fracture.
The complainant underwent surgery for his injury. After his surgery his prognosis was regarded as “guarded”. He was not compliant however with his prescribed treatment course. He was reviewed by medical staff on 25 June 2021 and was made aware of the significant functional limitation that could develop if he did not comply with the recommended treatment for his fracture.
The defendant is now 28 years old. He is currently single and has no dependents. He is an Aboriginal man, who grew up on the Tasman Peninsula. He is the youngest of 5 siblings with whom he has a good relationship.
He is a talented cricket player and has been involved with a number of cricket clubs since he was a young man and has been given leadership roles.
In 2011 when he was around 17 and completing year 11, his mother passed away suddenly and he found this difficult to cope with, particularly when the defendant’s father went on a prolonged bender. The defendant was the only sibling still living in the family home at this time and found himself facing a period of unstable housing, with periods spent living on the streets. He withdrew from school as a result, and it was at this time that his problematic use of alcohol began. He did not drink at all before this but turned to alcohol as a means of coping.
He has a good industrial record, and has had no significant periods of unemployment. In recent months, prior to him returning to custody after allegedly breaching his bail, he had difficulty maintaining employment due to his bail conditions requiring him to sign in at the police station 3 days per week. He is keen to return to the workforce.
He recognises the impact that alcohol has had on him, stating that he believes it has ‘ruined his life’. Both of the matters before the Court at present involved alcohol and the offending would likely not have occurred if it were not for the use of alcohol.
He has also had then benefit of a Community Corrections order and has attended multiple appointments with his probation officer and was referred to Holyoake. He attended some counselling sessions there. He has also engaged with Velocity Transformations and SECA. He is hopeful of availing himself of other rehabilitation opportunities and addressing his ADHD and depression.
In the last six months he returned to playing cricket, playing in a league during the past summer and attending training sessions with the University of Tasmania Cricket Club and the club is keen for him to return.
The two counts of assault on indictment 954/2020 were initially charged as common assaults, but were included on an indictment along with a charge of wounding which is no longer before the Court.
I accept that the assaults on Mr Morrison are at the lowest end of the scale of seriousness for assaults heard in this Court and common assaults of this nature would not ordinarily attract a period of imprisonment in the Magistrates Court.
There were no lasting injuries to the complainant, and the complaint did not require any medical treatment. Although there were two separate incidents, neither were prolonged.
On the charge of assault against Mr McInerney, it is accepted that the injuries suffered by the complainant were serious and that it is an aggravating feature of the assault that a weapon was used.
The defendant has spent over 4 months in custody in relation to these matters at various times. He spent a period in custody in February and March 2021 during which he was the victim of a serious assault. He was taken to the Royal Hobart Hospital with severe traumatic injuries and placed in an induced coma for around four days. He suffered multiple fractures to his skull and eye sockets, dislodged vertebrae in his neck, swelling to his brain and pneumonia.
He felt the physical effects of the assault for several months following it including pain and memory loss, and the incident continues to have a psychological impact on him. It has changed the structure of his face and left him experiencing nightmares. The defendant experiences fear about seeing the people involved in the assault again.
The defendant has pleaded guilty to this offending, which must be given significant weight. A plea of guilty was entered to the charge of assaulting James McInerney at an early opportunity in the Hobart Magistrates Court on 14 September 2021. The plea in relation to the charges of assaulting Mr Morrison did not come at first opportunity, but were entered after the State gave an undertaking to file a nolle prosequi on the associated charge of wounding.
The defendant has no prior convictions for violent offending. He has never been charged with an indictable offence before. He has never been sentenced to a period of imprisonment.
Taking into account the differing seriousness of the assaults, the lack of any relevant prior offending and the defendant’s pleas of guilty and his attempts at rehabilitation I am persuaded that it would not be appropriate to impose any further period of actual imprisonment.
Even in cases of grievous bodily harm, which this is not, as Pearce J, with whom Blow CJ and Porter J agreed, said in DPP v Pearce [2015] TASCCA 1, at [13]: “The crime of causing grievous bodily harm does not necessarily require a sentence of actual imprisonment in every case. The sentencing data available to me lists numerous examples of the imposition of wholly suspended sentences for the crime, commonly with terms between six and twelve months and sometimes longer”.
The defendant is convicted of all three assaults and I impose a single sentence of 15 months imprisonment, back dated by 123 days to 30 June 2022, with the balance from today suspended on condition that the defendant commit no offence punishable by imprisonment for a period of two years.