STATE OF TASMANIA v JARROD ROBERT WARD 4 OCTOBER 2019
COMMENTS ON PASSING SENTENCE PEARCE J
Jarrod Ward was found guilty by a jury of wounding. He was acquitted of the charge of committing an unlawful act intended to cause bodily harm and the first alternative left to the jury, causing grievous bodily harm. It is for me to find facts for sentence, but my findings must be consistent with the verdicts. Facts adverse to the defendant must be proved to my satisfaction beyond reasonable doubt. I may only make findings of fact in his favour if they are proved on the balance of probabilities.
At around 9.30 or 10.00 pm on Monday 12 June 2017 Ian Carter was at home, in bed, in his unit in Laycock Street, Longford. The defendant knocked on the front door. He kept knocking until Mr Carter got out of bed and opened the door. Mr Ward was allowed into the unit. As a result of a physical altercation occurring between the two men inside the unit, Mr Carter suffered wounds to his throat, right forearm, the webbing between his right thumb and forefinger and his back. At trial, Mr Ward admitted that he caused those wounds, but he and Mr Carter gave strikingly different versions of the circumstances in which that occurred.
Mr Carter told the jury that he knew Mr Ward through a mutual acquaintance, but they were not close. According to Mr Carter they had, in September 2016, a sexual encounter which they agreed would be kept secret. They did not have anything further to do with one another until Mr Ward turned up that night at his unit unannounced. Mr Carter was apprehensive about Mr Ward’s arrival because he knew that, contrary to their agreement for discretion, he had confided in his female neighbour about what had transpired between the two men, and word had got out. When he saw Mr Ward at the door he asked “are you going to bash me”. Despite his apprehension he allowed Mr Ward into his unit and, because of a continuing attraction, another sexual encounter took place. However, after that happened, Mr Ward made an aggressive reference to Mr Carter’s indiscretion and commented about the neighbour in highly derogatory terms. Mr Carter asked Mr Ward to leave. Mr Ward walked towards the opened door, but, as he approached Mr Carter, he pushed the door shut, produced a knife or some other bladed object, put his left hand over Mr Carter’s mouth and stabbed him to his neck. The blade was applied more than once. In addition to injuries to his throat, Mr Carter suffered injuries to his right arm and hand. He managed to get the front door open and shouted for help at which time Mr Ward ran off. Mr Carter also suffered a small laceration to the lower part of his back. Mr Carter took himself to a neighbouring unit for help. Three neighbours attended. He told all of them he had been stabbed. An ambulance and the police were called.
Mr Ward had a very different version. He lived in Longford with his mother, but during this evening he had been nearby at the home of the father of a friend. They were drinking beer to commiserate about the recent death of that man’s son. When they ran out of beer around 9 pm Mr Ward decided to buy more. He wanted to buy a six pack from a bottle shop at the other end of Longford but had no money and tried to borrow some. He said he knew his mother had no money. After trying at two other places he went to Mr Carter’s unit. He had met Mr Carter through a mate, but before June 2017 had seen him only four or five times. He denied that there had ever been any sexual encounter between them. He knocked on the door. When it was not answered he knocked again more loudly until Mr Carter came to the door. Mr Ward asked for $20. When Mr Carter declined, Mr Ward took himself into the unit for a glass of water from the sink in the kitchen. He said that as he was drinking the water Mr Carter was “pacing” around. He agreed that Mr Carter may have asked if he was here to “bash” him, but said that he did not understand why he would have asked that. He told the jury that, as he was leaving, Mr Carter, who was standing in the narrow alcove just inside the front door, produced an open pocket knife and reached towards him with it. Mr Ward said that this made him think that Mr Carter was going to do something with the knife so he took it from him and left, but in the course of the struggle over the knife, Mr Carter suffered the injuries. Mr Ward did not give an account of what happened to the knife he said Mr Carter produced after he took possession of it.
It follows from the verdict that the jury rejected the defendant’s claim that the force he applied to Mr Carter was justified by self-defence. It is conceivable that the jury thought Mr Ward believed that some force was necessary to defend himself, but that the force he used was excessive. However I am satisfied beyond reasonable doubt that he was not acting in self-defence at all. I regard the account given by the defendant of why he went to Mr Carter’s unit, and how Mr Carter came to suffer the injuries, as utterly implausible and I reject it. I do not accept as credible his account that he, late on a Monday evening, went to the home of a man he claimed to have met only a few times before, and persistently knocked on the door until it was opened to him to borrow $20 for a six pack of beer. Nor is it credible that, having been refused money, he would then take himself into the unit for water only to then be, as he was leaving, confronted by Mr Carter with a pocket knife. He claimed that when he saw Mr Carter holding and reaching across with the knife in his hand, he went to “grab it off him.” According to Mr Ward, he succeeded in taking the knife within a few seconds but, before he could leave the unit ten or fifteen seconds later, Mr Carter kept trying to grab the knife back and kept coming at him, although Mr Ward tried to push him away. He said that he pushed Mr Carter away by “scruffing him” and shoving him, back and forth about three times, and then noticed a bit of blood and Mr Carter grabbing at his neck. His account, I find, is irreconcilable with the evidence of the location, nature and extent of Mr Carter’s injuries and my assessment, having observed and heard Mr Carter give evidence, that he did not act in that way. He is only two years younger that the defendant but, unlike the defendant, he is not a fit, strong or agile man. There are photographs of the injuries. The jury also heard evidence from Dr Cameron McLure, a registrar in the emergency department of the hospital, who treated Mr Carter following his admission just after midnight. The laceration to Mr Carter’s neck extends laterally across the front of his neck from the upper left aspect to the centre across his larynx. With Mr Carter’s head raised and the skin stretched, it is a gaping 100 mm wound of roughly uniform depth which extends through all layers of skin and the fatty tissue underneath, thus exposing the underlying structures of the neck. It is obviously caused by something very sharp. At the lower central aspect of the laceration there is a further continuing scratch to the skin on the same line. The medical investigation disclosed that gas had entered Mr Carter’s body through the wound. There is at least one other separate injury to the neck, described by Dr McClure as an abrasion, but which is a scratch or cut to the upper layer of skin. It is also caused by a sharp object and runs roughly vertically and is a separate injury. The photographs also show a further vertical cut which runs from the main laceration, the appearance of which strongly suggests to me another separate injury. The laceration to Mr Carter’s right arm is across the fleshy part of the inside of his forearm just below the elbow. It is 70 mm long and extends fully through all layers of skin disclosing the muscle tissue below. It is also a gaping wound, much deeper at one point. The surgery required to investigate, clean and close the wound to Mr Carter’s throat was described by Dr McLure as “quite a significant operation”. Multiple layers of sutures were required to close the wound.
I think that Mr Carter was prone to dramatise and embellish the account he gave. He described having been repeatedly stabbed. The medical evidence is more consistent with the principal injury to his neck, which resulted from the first blow, as having been caused with a slashing motion. However, I accept the truth of the critical parts of his evidence about the lead up to the confrontation, and that it was the defendant who had the bladed object, initiated the violence and was the aggressor. Nothing said by the defendant causes me to doubt Mr Carter’s account in those essential respects. I do not accept it to be reasonably possible for the injuries to Mr Carter’s neck or arm to have been caused in the manner described by the defendant. Dr McLure accepted that the main wound to the neck could have been caused by Mr Carter having been pushed away by someone holding a knife near his neck, although he said that it was difficult to say. However I am satisfied beyond reasonable doubt, when all of the evidence is considered, that the injury did not occur in that way. That scenario does not plausibly explain what I find must have been at least three or four applications of the blade which I am satisfied must have been some form of knife. I find that the nature of the wound is inconsistent with having been caused by the unintentional or inadvertent application of force in the course of a push or a scuffle. The significant laceration to Mr Carter’s arm, and the laceration to his hand, are defensive injuries. The wound to the arm involves not only a long laceration but also a deeper wound consistent with a stab.
It follows from the defendant’s acquittal of the principal charge that the jury was not satisfied beyond reasonable doubt that the defendant intended to disable, disfigure or do grievous bodily harm to Mr Carter, notwithstanding that, on the face of it, application of a very sharp bladed object in the area of the throat injury suffered by Mr Carter would seem likely to cause serious injury to his health. It follows that the jury must have been satisfied that the defendant caused the injuries to Mr Carter with subjective recklessness, that is, that he appreciated that, by applying the knife in the manner the jury was satisfied he did, he was likely to wound Mr Carter and acted regardless of the risk. I am satisfied beyond reasonable doubt that although grievous bodily harm was not the defendant’s intent, he acted despite appreciating the risk of infliction of wounds which amounted to grievous bodily harm, but grievous bodily harm did not result. That the jury was not satisfied that the injuries suffered by Mr Carter amounted to grievous bodily harm is explained by Dr McLure’s evidence describing the injuries as superficial, in the sense that there was an absence of any damage to the underlying structures of the neck or arm. After his wounds were cleaned and repaired Mr Carter was discharged from hospital later on the same day.
I regard the degree of the defendant’s recklessness as high and involving considerable culpability. There were repeated applications of the knife including in the area of the victim’s neck. I am not satisfied that the crime was planned by the defendant before he went to the home. However it was a terrifying attack committed in the victim’s home motivated by anger and revenge. It is fortunate that Mr Carter seems to have made a good physical recovery. He is left with a scar on his neck and some loss of sensation in that area. For some time after the crime he was psychologically affected. He felt insecure in his unit and changed address as a result. He was anxious and fearful and his confidence was eroded, but now has recovered well mentally as well. The defendant is not to be sentenced for either of the two more serious crimes of which he was acquitted. The risk of far greater harm is obvious, although the defendant is not to be sentenced on the basis that it was his intent.
The defendant is now aged 40. Until he was taken into custody after the verdict he lived with his partner in Longford with her two children. He has two children of his own, one of whom recently came to live with him. His imprisonment will put a stop to that, at least for the time being. He was educated to grade 11 and has always lived in or around Longford where he has performed farming work. He has some prior convictions for violence. In 2000 he was sentenced to a partially suspended term of imprisonment for a very serious assault committed when he was 20. In 2005 a partially suspended sentence and probation was ordered for offences including three counts of common assault. On 18 October 2016 he was sentenced for common assault to imprisonment for a month, wholly suspended for 12 months, and probation. No application has been made for breach of that sentence, but it is an aggravating factor that this crime was committed while he was subject to the sentence and probation. He is not entitled to the mitigation a plea of guilty would have attracted.
Jarrod Ward, you are convicted of wounding. You are sentenced to imprisonment for two and a half years from 26 September 2019, the day you went into custody. I order that you not be eligible for parole until you have served half of that term.