STATE OF TASMANIA v GEORGE MERVYN WALSH 28 OCTOBER 2020
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Walsh, the defendant has pleaded guilty to one count of assault. The victim of that assault was his mother, Lorraine Shea, and the incident took place at her home on 26 October 2019. The complainant was then 66 years old. At the time, the defendant was essentially homeless but had lived in a tent in Mrs Shea’s backyard. At about 7.30pm on the particular day, the defendant was at Mrs Shea’s home. She was in bed unwell. The defendant stood at the bottom of an outside stairway that led up to a balcony and front door of the house, and began shouting. Mrs Shea got out of bed, went to the front door and walked out onto the balcony to tell the defendant to be quiet. He said he was going to murder her, and abused her by calling her a “dog bitch” and “a fucking cunt”. Mrs Shea asked him to quieten down. The defendant ran up the stairs and grabbed her by the throat. He pushed her against the wall of the house and held her up off the ground against the wall by her throat. As he was doing this he repeated the threat to murder her and said he was going to rape her. Mrs Shea estimates that the defendant had her by the throat for about 20 seconds. The defendant then released his mother, but moved slightly and grabbed her by her throat again. He tried to push her up against the front window but she escaped from his grip. The defendant then grabbed Mrs Shea by the throat a further time and dragged her towards the railing of the balcony. She was fearful of what was going to happen. He pushed her against the railing while still pushing against her throat. Mrs Shea feared she was going to pass out as she could not breathe properly. She was held in that position for about 30 seconds, and, experiencing difficulty in breathing, she called out for help. The defendant then attempted to punch her to the arm and again threatened to kill her. A neighbour heard yelling, went outside her house, heard the defendant abusing Mrs Shea, and Mrs Shea screaming for someone to call the police. Police were called while this was happening and the defendant was seen to have both hands around Mrs Shea’s neck. When a second neighbour told the defendant she had phoned the police, the defendant let go of his mother and ran from the area. He was not located until nearly a month later. At that time he was unable to be interviewed due to his level of intoxication. Later he refused to participate in an interview. After being charged he was initially refused bail but later in this Court was granted conditional bail. About two months later that bail was revoked and he has been in custody since that time, although during part he served a short term of imprisonment. I will make provision for the relevant period.
I have a victim impact statement from Mrs Shea. She says she thought she was going to die. She urinated in fear and physically suffered as the result of the stress. She could not sleep in her house for a few nights. She suffered a lot of bruising, and hurt her back and arm. She has had to have physiotherapy. She has had difficulty in swallowing. She feels her voice has changed, now having “a gravelly throat”. Implicit in what she says is that the defendant has mental health issues. She says he has not had the help he needs and this would not have happened if he had.
The defendant is 42 years old. He has a lengthy recorded history of offending starting in 1998 with offences of dishonesty. As well as offences of that type, there are convictions for drug matters, traffic matters of some significance, numerous breaches of restraint orders and family violence orders. He has twice appeared in this Court for offences of violence; in June 1999 for assault, and in October 2002 for aggravated assault. On both occasions terms of imprisonment were suspended on conditions. He has two convictions for summary assault, the last being in October 2019. Additionally, although of some age, in 1999 he was convicted of three charges of breaching a restraint order that related to his mother. He was sentenced to 21 days’ imprisonment. Similarly, in 2014 he was convicted of a breach of a restraint order, again relating to his mother. At the same time he was sentenced to imprisonment for drug offences, offences of dishonesty and traffic offences. Generally, he is a regular offender. Further, relevant personal circumstances are as follows. The defendant’s parents separated when he was 2 years old; he is the second youngest of nine children. He has maintained relationships with his mother and father. He is well educated, having attained tertiary qualifications in the fitness and sports disciplines. He was very active and industrious for quite a time. He has worked as a swimming instructor at a relatively high level, and has also been involved in martial arts, both in a teaching and a competitive role; the latter with some success. He last worked in 2018 as an instructor in self-defence. A number of events have contributed to his general history of offending. He has struggled with amphetamine use since the age of 15. That has been associated with poor mental health. In 2008 he was the victim of a serious assault, the perpetrator being charged with criminal offences and sentenced to three years’ imprisonment. His throat was cut, he was stabbed in the chest and suffered a deep laceration to his arm resulting in nerve damage and consequent corrective surgery. Psychological difficulties resulting from all of that have persisted. About five years ago, he was diagnosed with a genetic disorder that can result in hearing loss and pigmentation disturbance of the hair and skin. This seemed to exacerbate his mental health issues and he was admitted to a psychiatric facility for three days in July 2019. At about that time the defendant was living in the tent in his mother’s home. Mrs Shea seems to suffer from dementia and I was told he was there regularly because she needed someone to assist her. He found that an emotional experience. On the morning of the incident he found himself irritable and agitated. He has been using methamphetamine in the days beforehand. He went for a drink, ultimately returning to his mother’s. He had also been taking prescribed medication, and struggling with his illicit drug use. It was put that this situation led to the offence, but no further explanation was offered. I take into account the plea of guilty. I am told that the defendant wants the Court and his mother to know that he is very remorseful for what happened. He maintains that he loves his mother very much and she is the only person who has been there for him in his whole life. While in custody he has completed a number of courses including anger management and violence intervention. When his liberty is available to him he hopes to enlist the support of the Aboriginal Health Service. He also hopes to move to be closer to his father and to engage with the Church of Latter Day Saints with which he has been involved since 1998. He hopes to get support from that organisation in relation to his drug and mental health issues.
Although not in strict terms a family violence offence, this crime does, in general terms, fall within the description of domestic violence. General deterrence is a prominent factor. Violence in the family context is a matter of community concern. Offences are often difficult to detect. This crime was a breach of the trust involved in the relationship. Obviously there had been some difficulties in the past resulting in restraining orders against the defendant and protecting his mother. That notwithstanding, the defendant carried out a nasty type of attack persisted in for a short period. This was accompanied by threats to kill and of sexual violence. Mrs Shea continues to suffer physically and emotionally. In his favour, I take into account the plea of guilty. It facilitated the course of justice and removed the need for Mrs Shea to give evidence. I take into account as background context, the defendant’s mental health and drug abuse issues. However, it was not suggested that mental impairment reduced the defendant’s culpability or had any other relevance. I am prepared to accept that he is remorseful but otherwise there is little that mitigates the offending. At the same time, there may be some prospects of his rehabilitation.
Mr Walsh, I have set out what I see to be the relevant factors and considerations in your case. This, as I have said, was a nasty attack and in breach of the trust attached to relationship. Hopefully you will be able to engage in rehabilitative programs to lessen the risk of future offending. In my view this crime needs to be viewed seriously. You are convicted of the crime and sentenced to 15 months’ imprisonment to commence on 17 March 2020. I order that you not be eligible for parole until you have served 10 months of that sentence.