STATE OF TASMANIA v PATRICK ANDREW THURLEY 30 NOVEMBER 2023
COMMENTS ON PASSING SENTENCE PORTER AJ
Patrick Thurley, the defendant, has been found guilty by a jury of one count of assault. The charge arose out of an incident involving two groups of people in the early hours of a Saturday; 13 July 2019. The principal issue in the trial was whether the defendant was, at the time he admittedly punched the complainant, Kelleher Retchford, acting in defence of another. Obviously, the jury was satisfied beyond reasonable doubt that he was not. I need to make findings of fact and they are as follows. The complainant and three of his work colleagues had been out drinking at various hotels following a work function. They left their final venue at about 4am and were walking towards a well-known, late night food place. One of that group was a distance behind the other three. The lead group of three came across another group also heading in the same general direction. I am satisfied some unpleasant words were exchanged, but who spoke first and who said what to whom, it is not possible to tell. The complainant recalls somebody coming straight at him but that is the last of his memory. Around this time a physical altercation started between members of the groups. A female in the second group, Ms Taylor, intervened in the fighting but was hit to the side of her head. The defendant had been walking separately, but with another man, also heading to the food place. He saw Ms Taylor being struck and went to the person he thought responsible and punched the complainant once to the left side of his face, causing him to fall to the ground. CCTV footage tendered in evidence does not show the lead up to the defendant punching the complainant, including Ms Taylor being struck but does show the defendant’s blow. There is quite a lot of people milling round at this time. The complainant does not recall a female being part of the other group, and said that he did not recall hitting or wrestling with any female. Ms Taylor does not know who was responsible. It is simply not possible to say who did this; in particular, I cannot be satisfied at all that it was the complainant. It may not even be safe to assume that it was one of the complainant’s group or, indeed, that the blow was intentional. I note I was not urged to find that it was the complainant, but I am satisfied the defendant thought he was the culprit. The CCTV footage shows the defendant moving towards the complainant with someone putting their hands up to restrain him. That is plainly inconsistent with the defendant’s evidence, as he gave it, which was to the effect that he went to help Ms Taylor, he picked her up from the ground and then saw “a bloke” coming directly towards him, at which he point he though this man was going to hit Ms Taylor again, so he punched the man once to the side of the face. Of the complainant’s companions, only one saw him being struck but he was not able to recall the precise circumstances. In the result, and having regard in particular to the concessions made by the defendant when confronted with the CCTV in cross-examination, I am satisfied that at the time of punching the complainant, the defendant did not believe that he needed to act in defence of Ms Taylor. I am satisfied that it was a retributive attack. The defendant and Ms Taylor had known of each other before that evening. They had met on the night and were briefly chatting at the last hotel from which everybody seems to have been at before moving towards the food place. It is of some relevance that both in his police interview and in evidence, the defendant said that on a drunkenness scale of 1 to 10, he was about a 7. As a result of the defendant’s blow, the complainant fell to the ground and lost consciousness for a short time. He was taken to Emergency where a CT scan showed an undisplaced fracture of the mandible on the left side. This had to be repaired in theatre. On first examination, blood was noted as coming from his mouth and there was bruising on the right side of the face, suggesting that he had been hit on the left side and fell on the right. I have a victim impact statement dated 8 November 2023. The complainant says the event has been life altering. He was a medical intern at the time, working at a general hospital. The incident and its aftermath had significant physical and psychological impacts on him. It disrupted his internship. He describes the initial pain, with metal wires having to be inserted through his gums to clamp his jaws together, which he endured for nearly a month, having to eat liquids in that time. A lower incisor tooth has become discoloured and his highly sensitive. That may require a root canal treatment as some point. He is now anxious about going out. He notes the possibility of post-traumatic arthritis in the temporomandibular joint. The delay before trial also caused him stress and anxiety.
The defendant is now 32, a single man with no dependants. He has a recorded history of offending; mostly driving offences including driving whilst an illicit drug is present in the system and driving whilst disqualified. Perhaps of more relevance is a conviction for disturbing the peace by fighting, the offence having been committed on 16 May 2019, only about two months before this incident. He is a roofer by occupation, having completed an apprenticeship in plumbing and gas fitting. There is nothing at all particularly remarkable in his background. His parents separated when he was nine. He was raised by his father but maintains a good relationship with both parents. He did technical training after Year 10 and then joined the workforce. He has been in regular employment since that time. I have two character references, one from his employer and one from a family friend. His employer describes him as having a great work ethic and a clear thinker who shows a happy personality in his work. The family friend is an older person who has known the family for about 20 years. This person says the defendant has always been respectful of him and his partner and his elderly mother who was often at his house. He has not seen nor been made aware of any “violent streak” in the defendant and was shocked to hear of the charge.
Late night drunken brawling, and single punch attacks, in and around nightclubs and other late night venues is a matter of great community concern. Death can very easily result from a single blow that causes an inebriated person to fall to the ground. Factors of attempting to eradicate this sort of behaviour is very important. Some examples require a sentence of immediate imprisonment. In this case, it is very fortunate that the complainant was not more seriously injured. I take into account the effects which the defendant’s blow has caused. I accept that this was not a sudden, gratuitous and random attack as unfortunately often occurs. However, no mitigatory effect arises from the reason for the defendant’s involvement. It was an unwarranted, reckless and unlawful intervention. At the same time, I accept that he did not instigate the situation of conflict which led to the assault and did not get involved in what was going on simply because he wanted to fight. He initially walked over out of curiosity and formed the belief that the complainant assaulted a female that he knew. In the sentencing exercise, I need to take into account matters relevant to the defendant. I take into account his age and personal circumstances. Although there is arguably one relevant matter in his history, I do not know the circumstances of that charge. I take into account that he did nothing to delay this matter beyond seeking to advance a version of events to a jury, and the matter has been hanging over his head for a lengthy period. At the same time, he does not get the benefit of a plea of guilty.
Mr Thurley, I have set out the facts as I see them to be, and your personal circumstances and the relevant considerations. All violence is unacceptable. In particular, courts must do what they reasonably can to deter people from drunken brawling and becoming involved in such incidents. You quite unnecessarily intervened in retribution for a perceived wrong, despite somebody trying to stop you and struck a blow with the potential for very serious consequences. In my view, a term of imprisonment is necessary, but in all of the circumstances I am satisfied it is appropriate to suspend the execution of the term. You are convicted of the crime and sentenced to seven months’ imprisonment, the whole of which is suspended on condition that you commit no offence punishable by imprisonment for a period of two years. I need to warn you that the condition of suspension should be taken literally. If you commit any offence punishable by imprisonment, the law is that an application can be made to activate the suspended term and a judge must do so, unless it is unjust. There are many offences that are punishable by imprisonment; for instance possession of cannabis. So my warning is that you need to be very careful.