STATE OF TASMANIA v MAX ELLIOTT WAYMOUTH 26 MAY 2021
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Waymouth, the defendant, has pleaded guilty to one count of assault. That crime was committed on 3 January 2021. The complainant, Julian Varney, was a scout leader at the Burnie Scout Group. On the particular day, Mr Varney was at the Burnie Scout Hall. He was there because he had received an alert that an alarm had been activated at the Hall due to a break in. At the time, the defendant was in the area of the hall. It is agreed that he was in the area to water a cannabis plant he had been growing in nearby bushland. The defendant noticed that one of the hall windows had been broken and that a door was open. He went inside and encountered Mr Varney. When Mr Varney saw the defendant, he believed the defendant was responsible for the break in. He asked the defendant some questions and told him he was going to call the police. The defendant went to leave, at which point Mr Varney took a photograph of him. The defendant demanded the photo be deleted. He then went up to Mr Varney and punched him on the jaw on his left side. He then fled. The defendant was arrested the next day and when interviewed, said that when he walked past the hall and saw the door open, and the window was smashed and the alarm was going off, he went inside to see what was going on. He saw a man who asked what he was doing there and whether or not he had broken in, to which he replied that he was just coming to see who was there having heard the alarm going off. He said this man took a photo of him, and he told the man to delete it or he would “fucking break his nose”. The man did not delete the photo and said he was going to the police, so he “knocked the man out and walked off”. He did not check to see if the man was alright. He said he believed the man had it coming as he did not delete the photo, and was being aggressive towards him. During the interview, the defendant demonstrated on a number of occasions how he had punched the complainant, stating repeatedly that he “knocked the cunt out” and “knocked the cunt unconscious”. He said that he had gone to leave the building but actually decided to return to make him delete the photo, or otherwise, smash his phone and knock him out. The Crown did not allege that the defendant was responsible for the damage to the hall or that he stole anything from it, although it is suggested he was intent on taking anything of interest. As a result of the assault, Mr Varney suffered soreness to his cheek and jaw, and was left with a red mark on his face for a time. He felt disoriented and dizzy, and sought medical attention, believing he was suffering from mild concussion. He saw a GP who advised cold packs and mild analgesia. Scans revealed mild soft tissue thickening in the jaw area, but no other injury. I was not provided with a victim impact statement.
The defendant is now 19 years old; 18 at the time. As to previous offending, he has twice appeared in courts in Victoria, once in March 2019 for making a threat to kill and criminal damage, and secondly in January 2020 for similar and associated offending, all of which matters were ultimately dismissed without conviction after compliance with a bond. On 1 March 2021 in the Burnie Magistrates Court on a range of offences, mostly of dishonesty but including several charges of abusive language to a police officer, he was sentenced to 84 days’ imprisonment backdated to 18 January 2021, half of which sentence was suspended on conditions for 18 months. He was also made the subject of a community correction order for 12 months. Those offences were committed in a period starting in mid-December 2020 and ending in late January 2021. Accordingly, this crime falls well within a period of frequent offending. The defendant presents as a very troubled young man with substance abuse and mental health issues. His father was an alcoholic, and the defendant was exposed to violent and unpredictable behaviour. His mother was a victim of physical violence and he, verbal abuse. His mother was also prone to substance abuse, apparently as a coping mechanism. Eventually, she moved with the defendant to live with her parents. Behavioural problems on the part of the defendant emerged. They became more and more concerning. He began using drugs and was prone to angry outbursts. The family tried to get some assistance for him but little was on offer. His behaviour suggested anxiety and PTSD, with possibly a major factor at play. Because of his behaviour he was effectively excluded from the home, and had no stable accommodation. He was allowed to return from time to time to use the facilities. It was in that context that the course of offending that I have described took place. After the defendant’s release from prison he returned to live with his mother and grandparents. That support is again available to him. He has been seeing a general practitioner about help for his substance abuse and mental health. As to the offence, I was told that he does not adhere to the statements he made to police about the complainant. He fully accepts that what the complainant did was justified.
This was an unprovoked attack on a person genuinely and legitimately concerned about what was happening in the building. This was an incident of general aggression. The conduct was totally unjustified, of course the blow in particular, and it needs to be condemned. I take into account that only one blow was struck, and the assault was not sustained. Fortunately the complainant suffered no lasting injury. There is no real evidence of remorse but I take into account the plea of guilty which has practical value and has relieved the complainant of the need to give evidence. The defendant is a youthful offender who, although he has committed a relatively serious crime, seems to be on a pathway to rehabilitation. In that respect, I also note the community correction order currently in place.
Mr Waymouth, I have set out the facts and what I see to be the relevant circumstances. As I have said, what you did was completely unacceptable but, as I have also indicated, there are prospects of your reform. This offence seems to be part of a period of persistent offending over about six weeks. Leaving this offence aside, I take into account that you have been imprisoned for that course of conduct, and are still subject to a suspended part of that sentence. You are convicted of the crime and sentenced to three months’ imprisonment the execution of the whole of which is suspended on condition that you commit no offence punishable by imprisonment for a period of 18 months.