STATE OF TASMANIA v JHYE JOHN WEBB 26 NOVEMBER 2019
and JOSHUA PHILLIP JOHN KING
COMMENTS ON PASSING SENTENCE PORTER AJ
Both defendants appear for sentence in respect of charges of aggravated burglary, wounding and assault. Mr Webb pleaded guilty shortly before his trial was due to commence. Mr King was found guilty by a jury following a trial. The facts as stated in relation to Mr Webb, and as I find them to be in relation to Mr King, are as follows. Mr Webb is the older brother of a young woman, then aged 19 who, on the morning of 2 April 2017, reported to police that she had been walking along a street in Glenorchy with her daughter, and was indecently assaulted by a man. The young woman told police that the person responsible had been driving a car which he stopped near her shortly before the assault, and she gave a description of the man and details of the car. Mr Webb became aware of the assault when told of it by a member of his family. During the afternoon Mr Webb was told by another brother, that he had found the vehicle matching the description given by the sister. The Crown says that shortly after this happened Mr Webb, Mr King and three other people formed an agreement or understanding to enter the home of a Mr Tucker and physically assault him using metal implements. The belief was that Mr Tucker was the person responsible for the indecent assault. At about 4.20pm on the same day, Mr Tucker was inside his unit in Windsor Street, Glenorchy. That unit is a short distance away from the vehicle found by Mr Webb’s brother. After the friend left, Mr Tucker went outside and saw a person looking at him. He heard this person on the phone saying, “Come and check this out. I think this is him.” Mr Tucker went back inside and called the police. After that, he saw someone walking around outside at the front of his unit looking through the windows. This person said to Mr Tucker, “I fucking know you.” The Crown says that this person was Mr Webb. Mr Tucker took a hammer from the tool box to defend himself. He heard kicking at the door. Five people, including both defendants, were outside the complainant’s front door. Mr Webb was holding a tomahawk; another member of the group was holding a metal implement with prongs, described as a “hand mattock”, having a length of about 20 to 30 centimetres. Mr Webb kicked the front door a number of times and used the tomahawk to damage the window next to the front door. The kitchen window was broken. Mr King also kicked the door a number of times. After this Mr Tucker opened the door but then tried to push it to keep it closed. Mr Webb swung the tomahawk from around the door at the complainant as he was behind the door. This was done multiple times. The person who was holding the other metal implement also swung that at Mr Tucker. Mr Tucker was hit on the left hand with the tomahawk and on the right arm with the other implement. In each case a wound resulted. Mr Webb punched Mr Tucker once to the side of the face, then pulled him to the door and pushed him out of the unit. Mr Tucker was taken outside and thrown to the ground, about three to four metres away from the front door. While he was outside he was kicked a number of times both before and while he was on the ground by Mr Webb and others but not by Mr King. Someone stomped on his head at least once. After he was on the ground, the defendants and other members of the group left. At about 5.15pm, police officers went to the unit and found Mr Tucker inside. Blood, false teeth and faeces were seen on the path leading to the unit. Mr Tucker appeared dazed and had blood trickling from his mouth, and it appears as though he had defecated. The ambulance was called and investigations commenced. That evening Mr Tucker was treated for a fracture and laceration to his right forearm, and a wound on the palm of his right hand. He was seen to have bruising to his left thigh, to his head and back and a graze on his forehead. On 5 April 2017 Mr Tucker went to the police station and identified Mr Webb from a photo-board. The next day Mr Webb’s home was searched. Mr King’s home was also searched on the same day and clothing very similar to that shown on the CCTV footage as being worn by one of the members was found. Both men essentially denied involvement when interviewed by police officers. There is CCTV coverage of the area outside Mr Tucker’s unit. The footage clearly shows Mr Webb and a number of other men milling around before Mr Webb kicks at the door about a dozen times and striking at what I assume is the door handle with the tomahawk about four times. He then breaks off and returns, again hitting the door about three times. It is at this point that Mr King steps forward, seemingly when beckoned to do so by Mr Webb, and kicks the door about four times. Shortly after, access is gained to the unit at which point Mr Webb partially enters followed closely by the other man carrying a metal implement. Mr King then withdraws. When Mr Tucker is brought outside Mr King can just been seen hovering a short distance away from the melee. There can be no doubt that Mr Webb was the leader of the group. I am satisfied beyond reasonable doubt that he played a pivotal role in the execution of the attack. What happened in the lead-up and who said what to whom, I am not able to say. As to Mr King, I am told that he joined the search out of loyalty to the Webb family, with a deceased Webb brother, Zane Webb, in mind. I am told that he had no intention of inflicting any violence on anybody at that point, and he had not been made aware of an intention on the part of anybody else to inflict violence. Counsel put that he was not aware of the prospect of violence until the weapons were produced by others. He says his understanding was that the plan was to bring the perpetrator to the attention of police if they were able to find him. As to that, I am not satisfied that he was unaware of at least the prospect of violence before the weapons were produced, but I cannot be satisfied beyond reasonable doubt that violence with weapons was in his mind from an earlier point. His criminal responsibility was left to the jury on the basis that he was party to a plan to break in and wound or injure, alternatively that he was an abettor, or alternatively that he was party to a plan to inflict violence and that the crimes were probable consequences. All in all, I am satisfied that he should be sentenced on the basis that he abetted the crimes as charged by being present, intending to encourage, and in fact encouraged by kicking the door and being present.
I have a victim impact statement from Mr Tucker. He says the injuries received caused him a deal of pain and discomfort. As at September 2019 that was ongoing. His right arm is weak and he has an inability in his left hand to pick things up. He has some nerve damage and his general strength and movement have been affected adversely. He suffered from a heart condition before this event, the stress of which worsened his condition and scheduled surgery was brought forward. He says his injuries have healed reasonably well in general but he has ongoing issues resulting from damage to his lower jaw, which makes it impossible for him to wear his lower dentures. For a time he had difficulty sleeping due to pain and discomfort and suffered nightmares and flashbacks. He remains wary. I note that another man has been charged with the indecent assault, that he has pleaded not guilty and the matter is part heard.
Mr Webb is one of six full siblings. The youngest of those is the young woman who was assaulted. Mr Webb seems to have had a difficult upbringing ultimately causing him to leave home permanently when he was 13 years old. He lived between various friends and family members’ homes. This exposed him to a pro-criminal lifestyle. He was convicted of a Criminal Code assault in October 2004 for which he was sentenced to three months’ imprisonment suspended on conditions. There are later convictions for a common assault in November 2004, two breaches of a police family violence order in March 2006, and a common assault and a breach of a family violence order in November 2007, all of which resulted in short suspended terms of imprisonment. There is a notable improvement after 2008 with no recorded history of violence. He has a significant history of substance abuse. At its worst, he was using amphetamines ecstasy and cannabis on a daily basis. There seems to have been a self-medication aspect to this relating to his upbringing. He and his wife have been together for 15 years and they have two children aged 11 and 6. They are now dependent on his wife’s income. Pending the birth of his first daughter in 2007, Mr Webb began actively reducing his drug use until becoming fully abstinent in 2008. He says he has not used illicit substances since that time. He was particularly close to the oldest brother, Zane, who regrettably died in June 2010 while in prison. This caused Mr Webb and the family considerable emotional trauma. Despite his situation at the time and literacy difficulties, he completed years 11 and 12 in college, after which he was unemployed for a period of time before being employed as a factory hand. He worked at various jobs after that, but in October 2016 while driving for the purposes of his work, he was involved in a motor vehicle accident which resulted in brain and spinal injuries. He has not been able to work since. In addition to physical restrictions, the injuries suffered in the accident have caused cognitive and psychological difficulties. His treating psychologist has diagnosed him with acute panic attacks, post-traumatic stress disorder, poor sleep, depression and an anxiety disorder. I have a neuropsychological report from Dr Martin, a neurosurgical report from Mr Gan, and a forensic psychological report from Dr O’Donnell. According to his wife, post-accident Mr Webb became socially withdrawn, quick to anger, impatient, over-reactive and hypersensitive to noise. Although suffering from literacy problems before the accident, his intellectual ability is now assessed as within the extremely low range. His cognitive abilities are all well below average. One of the injuries noted by Mr Gan is a post-concussion syndrome due to hitting his head. Dr O’Donnell notes that Mr Webb has to be helped with daily living skills since the accident, such as domestic duties because he forgets small tasks. He is largely dependent on his wife in these respects. In Dr O’Donnell’s opinion, Mr Webb did not have impaired mental functioning to the extent that it contributed to his commission of the offences. However she identifies three factors which constitute a risk of imprisonment having a significant adverse effect on his mental health. The first is the death of the brother. This means the impact of being imprisoned in the same facility is likely to be distressing. His functional impairments and daily living and post-traumatic stress symptoms would heighten his vulnerability in a prison environment, and in Dr O’Donnell’s view, prison health service will be required to withdraw him from the high level of pain medication that he is used to. As to the latter issue, I approach it on the basis that I am to assume that his proper medical and pharmaceutical needs are met, but I acknowledge there is a real chance his medication regime will be changed and he may suffer difficulties as a result. The home detention assessment report refers, in turn, to a report of Mr Webb’s treating psychologist, Dr Dobber. According to her, Mr Webb says his self-identity as a father and a husband is significant to him as it has been pivotal in his recovery from his previous pro-criminal lifestyle involving substance abuse. Without it, both Mr Webb and his wife feel there will be a dire regression in his mental health. Dr Dobber has said that “Imprisonment might involve re-association with persons whom he has previously actively avoided in his efforts to lead a more pro-social life with his wife and children. Mr Webb (with his wife) is trying hard to give his children a better start in life than he has had.” Dr Dobber says that a home detention order would enable continuity of psychological therapy under his mental health care plan. I note that apart from the medication issue, the Crown took no issue with any of this expert material.
Mr King is now 37 years old. He has an unenviable record of driving offences including negligent driving and drink driving. The last drink driving conviction in March 2008 led to a short term of suspended imprisonment. He has no recorded history of violent offending. Of some, but no great significance is a conviction for disorderly conduct in March 2013 for which he was fined. Mr King is one of three children with a normal and unremarkable upbringing. He still lives with his parents. He has a good industrial record. Having completed grade 10, he has been in full-time work ever since. He had several jobs before taking on an apprenticeship as a glazier which he is due to complete in 2022. I have references from two people in managerial positions with his employer. Both say that this offending is quite out of character. Both speak highly of his work ethic, dependability and ability to relate well with fellow workers and clients. Mr King has an 18 year old stepson and a 16 year old daughter from a previous relationship. The relationship ended many years ago but Mr King still sees both children on every second weekend. Mr King was also deeply affected by the death of the oldest Webb brother. Zane Webb was a close friend. At about the same time another friend of Mr King was murdered. This led to episodes of binge drinking and illicit drug taking, although Mr King was able to rehabilitate himself from the situation and has stopped using drugs. He reduced his alcohol consumption after the last drink driving offence in 2008.
These are very serious crimes. These men were involved in an orchestrated attack on Mr Tucker. Two of the group were armed. They subjected Mr Tucker to a terrifying attack. The violence was significant. Fortunately, he has substantially recovered, but will continue to suffer. This was an episode of “vigilante justice” and is to be condemned. The community does not tolerate people taking the law into their own hands to address, by means of criminal violence, perceived wrongdoing. That is so irrespective of the circumstances. The Court does not engage in any determination of the wrongdoing of the victims. I have set out the personal circumstances of both men. Mr Webb pleaded guilty but that came at a very late stage and is of no great value, although I note his remarks about what he did. Mr King has expressed extreme remorse. He is not to incur greater penalty because he pleaded not guilty, but his remorse has to be put alongside the fact that he hoped to be able to completely avoid responsibility by putting the Crown to proof that he was present with the requisite state of mind. Home detention was urged on me by counsel for both defendants, and each defendant has been assessed as suitable. Particularly in light of the Crown’s opposition to that sanction being adopted in this case, I will say something about such orders. The Sentencing Act allows a court to make an order where it considers that, were it not to make the order, it would impose a term of imprisonment, whether immediate or suspended. The only restraint is the rather self-evident one that a court must not make an order unless it considers it appropriate. Home detention is imprisonment, but is to be regarded as less onerous than being in gaol. However, Parliament has imposed a maximum period of 18 months for a home detention order, or combination of orders existing at any one time. That may be a broad indication of the length of a sentence of imprisonment for which a home detention order might properly be an alternative. Clearly home detention orders would be inappropriate for crimes at the more serious end of the scale. However, an attempt to arithmetically correlate periods of imprisonment and home detention is problematic. For instance, many lengthy periods of imprisonment are made subject to parole eligibility which mostly eventuates, although not guaranteed. Parole comes with some restrictions, but generally speaking there is no real impediment to the free movement of the person. That may be contrasted with the home detention order for the whole of the period of which the person is not free to move beyond their home save in limited circumstances. In any event, the Sentencing Advisory Council in its Phasing out Suspended Sentences, Final Report March 2016 at pp 62-68, noted that home detention does have appropriate deterrent effect and satisfies multiple sentencing objectives; it is not a ‘soft option’. I would also say something about suspended sentences of imprisonment. There is a legislative program to phase them out. But as recognised by the Council at p 7 of the Report, s 7 of the Sentencing Act sets out a descending hierarchy of sentencing orders. Imprisonment is ranked first, with a wholly or partly suspended sentence, second. In 2017 though, a drug treatment order was inserted between those two sentences. When home detention orders were introduced, they were placed after wholly or partly suspended terms of imprisonment. Section 25 of the Sentencing Act also makes a partly suspended sentence of imprisonment a sentence of imprisonment for the whole term, and directs that a wholly suspended sentence is taken as a sentence of imprisonment for the purposes of other enactments. The orthodox legal view remains that a suspended sentence is a significant punishment: see for instance, R v NJK [2011] NSWCCA 151 at [31]-[32]. The difference in the degree of culpability on the part of each defendant and their respective records of offending justify differentiating between the two. At the same time there are physical and mental health issues which distinguish Mr Webb from Mr King. In Mr Webb’s case there is justification for an individualised approach. In Mr King’s case his employment raises considerations confined to him. After careful consideration of all matters, and given the options now available to sentencing courts, I have decided that each man can properly be sentenced on a basis other than that which involves immediate imprisonment.
Mr Webb and Mr King. Mr Webb, I have already commented on the seriousness of this offending. Acting in an appalling manner, in company with others you determinedly forced your way into Mr Tucker’s home, attacked him, dragged him out and beat him. But taking into account your personal circumstances, I think the public interest can be properly served by way of the following orders. You are convicted of the crime of aggravated burglary and sentenced to 15 months’ imprisonment the execution of which is suspended on condition that you commit no offence punishable by imprisonment for a period of three years. On the wounding and assault, in accordance with your consent I make a home detention order, the operational period of which is the maximum 18 months to commence on 27 November 2019, that is tomorrow. There will be the statutory core conditions including electronic monitoring for the whole of the operational period. These conditions will be specified in a written order that will be given to you. The home detention premises is [address]. In addition I make special conditions as follows:
1 You will have to report to Community Corrections at 3 Terry Street, Glenorchy by 12 noon tomorrow, 27 November 2019.
2 You must maintain in operating condition an active mobile phone service, provide the details of that to your probation officer or prescribed officer, and be accessible for phone contact at all times.
I also make a community corrections order for a period of 12 months from today. In addition to the statutory core conditions which will be set out in the written order given to you, I make a special condition that you submit to the supervision of a probation officer as required by the probation officer, and submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
Mr King, you willingly assisted in this appalling attack but, having regard to your personal circumstances, in particular your employment, I think the public interest can be better served by you remaining in the community than serving time in gaol. You are convicted of all crimes. With your consent, I make a home detention order, the operational period of which is 15 months to commence on 27 November 2019. There will be the statutory core conditions including electronic monitoring for the whole of the operational period. These conditions will be specified in a written order that will be given to you. The home detention premises is [address]. In addition I make special conditions as follows:
1 You will have to report to Community Corrections at 3 Terry Street, Glenorchy by 12 noon tomorrow, 27 November 2019.
2 You must maintain in operating condition an active mobile phone service, provide the details of that to your probation officer or prescribed officer, and be accessible for phone contact at all times.
In addition, I make a community corrections order for a period of 18 months from today. The core conditions of that order will be set out in the written order given to you. I make a special condition of that order that within the period of the order you complete 175 hours of community service.