STATE OF TASMANIA v DONALD RUSSELL ESTCOURT J
COMMENTS ON PASSING SENTENCE 12 AUGUST 2019
The defendant has been found not guilty by a jury of the crime of committing an unlawful act intended to cause grievous bodily harm, but guilty of the alternative offence of assault contrary to s 184 of the Criminal Code.
On 28 March 2017 the defendant, now aged 58 years struck the complainant Scott Ashlin with a metal bar, a truck jack handle, at least three times to the side of the head, breaking his jaw and displacing a number of teeth.
Mr Ashlin required surgery to repair his injuries with the insertion of a plate and will have ongoing problems with his teeth.
On the view of the evidence most favourable to the defendant there had been a long running state of hostility between the two men over many years dating back to a fencing dispute in the early 2000’s.
On 28 March, I find on balance, after threats were made the previous Sunday to Mr Russell and his family by Mr Ashlin from Mr Ashlin’s back yard, the defendant encountered him in the car park of the Dover shopping centre.
I find on balance that Mr Ashlin repeated a version of the same threat and the defendant having armed himself with the jack handle asked for just two days peace from Mr Ashlin and struck him with the bar through the window of the car where Mr Ashlin remained seated.
The jury by its verdict accepted the defendant’s claim to have been in a dissociative state at the time of the striking to the extent that he was incapable of forming the necessary intent to commit the crime of committing an unlawful act intended to cause grievous bodily harm or either of the requisite mental states necessary for the alternative crimes of wounding or causing grievous bodily harm.
It falls to me therefore to sentence the defendant on the basis that he voluntarily and intentionally struck the complainant with the iron bar, the crime of assault not requiring a specific intention – see Tasmania v Oates [2017] TASSC 39.
As Brett J said, relevantly, in that case, the mental element required for the commission of the crime of assault by the application of force requires proof that a person performs an act with the intention of applying force to the person of another. In such a case, the act of applying force will be intentional. By virtue of s 13(1), the physical act which produces the application of force must also be voluntary and intentional. In cases where the result is inherently bound up in the physical action, eg an aimed punch, the distinction between the requisite state of mind applicable to that act and the result will be virtually academic.
I take into account all that has been said by the defendant’s counsel Mr Kovacic, on his behalf, and today by Mr Cangelosi.
The defendant has no relevant prior convictions whatsoever and has previously been of exemplary good character. It is true that the attack was unpremeditated, short lived and was discontinued, but it was brutal and while the defendant’s lack of intent, lack of relevant prior convictions and the potential for rehabilitation are relevant matters they deserve somewhat less weight, in my view, as compared to the need for retribution, vindication of the victim, general deterrence and the protection of the community.
The defendant did not appear to have expressed any remorse at trial. In cross-examination he said “I can’t say I regretted it, to this day. But, it was the wrong thing to have done.”
Because of this I originally felt that an actual sentence of imprisonment with no part of it suspended might have been called for. Somewhat ironically however, the pre- sentence report I ordered for assessment for home detention while ruling him unsuitable because of the unsuitability of his place of residence, nonetheless contained the following observation by the author of the report:
“During interview, the accused appeared genuine in his remorse for his actions and grappled with the person he reported to strive to be; someone of good character, reasonable and trustworthy against his actions of the offence. He advised after the offence occurred he was having difficulty balancing whom he sees himself to be with the violence of the offence and because of this sought out counselling which he stated was beneficial. His partner and the many character references provided by the accused describe the offence as out of character for the accused and are full of support for the accused and describe him as a well-respected and important part of the community.”
The defendant was regarded as a suitable candidate for community service.
Taking all matters into account the defendant is convicted of the crime of assault and I impose a sentence of 12 months’ imprisonment wholly suspended on condition that he commit no offence punishable by imprisonment for a period of two years. In addition, I make a community correction order that contains, in addition to the statutory core conditions, a special condition that the defendant must within the next 2 years satisfactorily perform community service as directed by a probation officer or a supervisor for a period of 210 hours.