STATE OF TASMANIA v JOSHUA SCOTT WEBSTER 30 OCTOBER 2020
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant, Mr Webster, has pleaded guilty to one count of assault. The charge arises out of an incident at a little after 2am on 2 February 2020. In this case, the unlawfulness of the assault is made out because of an unreasonable amount of force used in a perceived self-defence situation. The complainant is Jake Riley who was 24 years old at the time of the offence, the same age as the defendant, and the two were not known to each other. The complainant was at a bar in the Salamanca Place area and went outside with a male friend, Mr Lane. The complainant started to talk to a young woman whose partner, Mr Browning, was nearby. Mr Browning is a friend of the defendant. Mr Browning asked the complainant to back off. An argument started and Mr Riley and Mr Browning moved over to a grass area opposite the bar. Mr Browning’s partner and another woman followed. The defendant had also been outside the bar but in a different group and overheard the argument. He followed the group across the road to the grassed area. Mr Browning and Mr Riley appeared to settle their differences. Mr Browning and the two women began to walk away. The defendant then said, “What’s going on here”. The Crown asserts that the defendant then walked towards Mr Riley and hit him with a closed fist. The reason for that blow was later explained by the defendant to police. The Crown does not dispute the explanation given. The defendant said that Mr Browning was his friend. He did not initially go over to where the group was, and then thought he could not let his mate get bashed by two blokes. When he got there he saw Mr Riley and another male confronting Mr Browning. He asked what was going on, and it looked to him like Mr Riley started walking towards him with clenched fists. He had been hit before in that location, and he thought he was going to get hit, so he hit Mr Riley first. He said he simply acted and the first thing that came to his mind was to protect himself. He admitted Mr Riley’s hands were by his sides. He said he did not think he hit him and that hard and did not intentionally intend to hurt anyone. Returning to the narrative, when struck, Mr Riley fell to the ground and held his face. Mr Riley’s friend, Mr Lane, was also then present, and he and the defendant ended up fighting. That was broken up and the defendant walked away. Mr Riley was required to go to hospital. He was there diagnosed as suffering from acute intracranial haemorrhage and bilateral mandible fractures. He had to undergo surgery and titanium plates were fixed to the left and right side of the fractures. Police were involved, and on 6 February 2020 the defendant voluntarily went to the police station and was interviewed.
I have a victim impact statement of Mr Riley dated 28 September 2020. He said he was immediately in extreme pain. After the surgery, he was on a liquid diet for six weeks and soft food for months after that. He spent the six weeks mostly in bed. He could not open his mouth wide enough to brush his teeth and it hurt to get liquids into his mouth using a straw. He lost weight and developed severe anxiety and depression. He found it difficult to get back to work as an apprentice carpenter. He found it difficult to remember and was easily distracted. In mid-May he experienced problems with his face and went to hospital on an emergency basis. The area around the plate on the left side of his jaw had become infected and he spent some days on a drip until surgical removal. That required a further three weeks off work and a return to the liquid diet. He says the left side issue still has not healed properly and he has now been advised he will have to have a bone graft using bone from the hip to try to rebuild the left side of his jaw. He still has numbness on the left side of his face and pain in his jaw and teeth. He was uncomfortable being around crowds or leaving the house after dark.
The defendant is now 25. He has no recorded history of offending. He lives with his parents and has full-time employment. He is a qualified painter and has been employed with one firm for two years. I have a reference from his employer who says he is an honest and reliable employee and were the defendant to receive a prison sentence, he would not be able to hold the defendant’s position open. I also have a reference from the President of the Hobart Football Club for which the defendant plays. He has done so since 2015. The reference attests to the defendant’s talent as a player, but more particularly, and to his character. It says the defendant is a quiet and unassuming person who does not like to be the centre of attention or make a scene. He does not appear to have an issue with alcohol and has acted responsibly at club functions and around the club in general. As to the offence, I am told that he went over to the group not intending to fight anyone but essentially out of concern for his friend. It was not clear to him that the argument had been resolved. He saw the complainant coming towards him with his fists clenched. He thought the circumstances were such that he was required to act in self-defence. He accepts that he responded excessively, and accepts responsibility for his actions. He was then assaulted by Mr Lane and was punched four or five times causing swelling around his eye and resulting in him having some time off work. Once that fracas had finished he removed himself immediately. He voluntarily went to the police and was co-operative. I am told he is genuinely remorseful. This is also evidenced by his plea of guilty at an early opportunity in the Magistrates Court – his second appearance – and at a time when he was unrepresented. It was put that he did not intend to hurt Mr Riley but wanted to remove the threat. Lastly, I was told that he has found the experience of attending court a salutary one.
The law is that a person is justified in using in the defence of himself such force as, in the circumstances as he believes them to be it is reasonable to use. It is accepted between the parties that the defendant genuinely believed he needed to act in the defence of himself, but the amount of force he used was unreasonable. Of course, the assault, and the force applied, consisted of a single blow. It might be argued that the punch to the face was of itself an unreasonable amount of force, but no submissions were made about the issue, and I think the more appropriate approach is to view the unreasonable force as being the weight of that one blow. The unreasonable amount of force made the violence unlawful. The defendant is to be sentenced on that basis. That said, violence around bars and nightclubs in the particular area is notorious and a matter of community concern. Factors of general deterrence and denunciation remain of importance. The serious consequences to Mr Riley of the assault must be taken into account. The defendant was reckless as to the amount of force used. I accept that he did not intend to inflict the level of harm caused, or any real harm. To the extent the harm amounts to grievous bodily harm it cannot, as an aggravating factor, be viewed as an intended or foreseen consequence. The defendant is to be given credit for his early pela of guilty. I accept he is remorseful. He has no recorded history of violence or of any offending. He was previously of good character and I accept that, as submitted by his counsel, he is unlikely to re-offend.
Mr Webster, I have set out what I see to be the relevant considerations in your case. I note that you thought the situation with Mr Browning had not resolved, but you appear to have misread the situation, and a little caution may have shown it was unwise to intervene. However, you are not to be punished for that. Although you believed you needed to act to defend yourself, you were quite reckless as to the degree of force. In my view, although excessive force in one blow in self-defence is involved, a penalty of some substance is nevertheless required. In all of the circumstances, I do not consider imprisonment to be necessary, even accepting that it might be appropriate to suspend the execution of the whole of the term. You are convicted. I make a community correction order for a period of 24 months, a condition of which is that you perform 50 hours of community service. In addition, you will be fined the sum of $650. The law is that the fine is to be paid within 28 days. You will have to report to a probation officer at 114 Bathurst Street by 5pm on 2 November 2020.