STATE OF TASMANIA v HARLEY LESLIE MYERS-REYNOLDS 8 NOVEMBER 2023
COMMENTS ON PASSING SENTENCE PEARCE J
Harley Myers-Reynolds, you were found guilty by a jury of one count of assault. You were acquitted of two further counts.
During the evening of Thursday 21 February 2019 you were at the Olde Tudor Hotel, in the bar, drinking with some of your friends. At the time you were 23. At your trial there was no dispute that, late in the evening, you punched Jesse Walker as a result of which he fell unconscious to the ground. The issue was whether the force you applied to Mr Walker was justified by self-defence. It follows from the verdict that the jury was satisfied that it was not. Subject to that verdict it is for me to determine the factual basis of sentence. Facts adverse to you must be proved to my satisfaction beyond reasonable doubt.
Mr Walker was in the bar with two workmates. He was then 28. You and your friends spent a good deal of your time during the evening in the smoking area adjacent to the bar, which was outdoors but enclosed by a glass screen. The area was about 4 metres square and had a tile floor. Mr Walker and his companions were in the same area but on the opposite side. You perceived that, even though you did not know them, they were paying attention to you. Earlier in the evening Mr Walker became involved in a verbal disagreement with one of your group over a trivial incident and you intervened to remove your friend from the situation. However, sometime after 11.00 pm, by which time everyone involved had consumed a considerable amount of alcohol, you returned from the bar to the smoking area to find that Mr Walker had moved across the smoking area to near where you and your friends had been standing. He had resumed the debate with your friend and voices were raised. You stood near him and it was shortly after this that you punched him. Consistent with the verdict it follows that you either did not act in self-defence at all, or the force you used was not reasonable. I am satisfied that it was the former.
I find that it was Mr Walker who walked across the smoking area to re-engage in the argument with your friend. I find that what then happened emerges from what you told the police when you were interviewed the next day. You had already intervened between Mr Walker and your friend once. You believed that he had been staring at you. When you asked him what his problem was he called you an indecent name and told you that you would get what was coming to you. Instead of walking away, which I am satisfied that you could have done, you immediately became angry and punched him. You told the jury that you were fearful that, in light of the earlier conflict and because you had recently suffered very serious facial injury in another bar room incident, that you were frightened that he might punch you, so you acted pre-emptively. Your evidence was that immediately before you punched him, Mr Walker put down his beer and withdrew his arm as if to punch you, but your account to the police did not include those important details. Perhaps with the passage of time you believe those things to be true, but I find that they were not. I find that you punched him because you were drunk and annoyed and not because you genuinely believed that force was necessary to defend yourself. The punch you inflicted was a hard one. I am satisfied of that from the evidence of the noise it made and because it caused a significant laceration to your hand. It struck Mr Walker to the side of his head and had a dramatic effect. He was rendered immediately unconscious and, unable to protect his fall, he fell backwards and hit his head on the floor.
Mr Walker was taken to hospital by ambulance and admitted to ICU with severe concussion, a significantly reduced level of consciousness and aspiration pneumonia. He was intubated and monitored overnight. He spent a further day in hospital and was discharged on 23 February. One of the factors relevant to sentence is the potential for assaults of this nature to result in extremely serious injury or death. Very fortunately, Mr Walker did not suffer the form of life threatening skull fracture or brain injury which sometimes happens. However, after leaving hospital he was in the care of his parents and away from work for some weeks and, according to his victim impact statement, still suffers from the effects of the assault. He continued to suffer vertigo and disorientation. He feels that his personality has noticeably changed and he has become moody and socially on guard. He attributes the effects of the assault as a cause of a motor cycle accident on 30 March 2019. There is not sufficient evidence for me to make such a finding. His victim impact statement refers to a loss of consciousness from that accident but that does not seem to be borne out by the medical records. It is fair to infer however from the nature of the impact described on that occasion that he suffered a concussion which complicates attribution of the consequences of the assault. I would sentence you on the basis that I could not be satisfied that all of the physical symptoms Mr Walker now describes result from the assault but that he describes the type of psychological symptoms which may be expected to result from an incident of this nature.
You are now aged 27. You were raised by your father after your parents separated but you maintain a good relationship with both parents. Since leaving school in grade 8 you have been in constant employment. For the last five years or so you have been employed by a civil construction company and your current position is as a leading hand field supervisor. It is a responsible position and you are well regarded by your employer who intends to offer you the opportunity for advancement. The director of your employer, who was the author of the reference given to me, describes you as not the same person as at the time of the assault, and that you are now a mature and respectful man. You are in a long term relationship which has commenced since this assault. You have assumed a parental role for your partner’s two children and you share the care of a child from a former relationship of your own.
You do not come before the court without a history of violence. You committed some offences as a youth including for common assault. In 2015, when you were 19, you were given a short wholly suspended sentence for offences including common assault, evade police and dangerous driving. In 2017 you were ordered to perform community service for common assaults committed the previous year. In 2017 you served four weeks in prison for a family violence assault and breaches of a family violence order. Most recently, in 2021 you were sentenced to a partly suspended term of four months for a further family violence assault and resisting a police officer in November 2020. That is not a prior conviction for sentencing purposes.
There has been no other offending since 2020. I have been given no explanation for the long delay which has attended this matter. Delay per se is not relevant to sentence, but in your case you have, since this assault, demonstrated a capacity for reform. Thus I must balance the circumstances which are personal to you with the need to punish you for what you did and make clear to others the consequences of such actions. The risk of death or very serious injury posed by assaults of this nature is well known. Some examples require a sentence of immediate imprisonment. I have decided to take a different course. Although you did not act in self-defence you did not instigate the situation of conflict which led to the assault. The lapse of time since the assault demonstrates that you are capable of being a responsible member of the community. You have taken significant steps to curb your alcohol intake and address your anger issues. You have been assessed as suitable for a home detention order. Such an order, while not equivalent to imprisonment, will have a significant punitive effect including because one of the conditions I will impose means that your wife will not be able to be present at the property in which you live overnight during the period of the order. If there is any breach of the order, especially if by an offence of violence, imprisonment would be inevitable.
Harley Myers-Reynolds, you are convicted on count 1 on the indictment. I make a home detention order. The operative period of the order is 10 months from today. I specify the premises at which you are to reside during the operational period of the order as [home detention premises]. I order that by 5.00 pm tomorrow, 9 November 2023, you report to the office of Community Corrections at 111 Cameron Street Launceston, for induction into this order, and a further explanation as to its full terms. The order will be subject to all of the core conditions set out in the Sentencing Act 1997, s 42AD(1). They will be set out in the order that you will be given, but include that you will submit to electronic monitoring and must, during the operational period of the order, if directed to do so by a police officer, probation officer or prescribed officer, submit to a breath test, urine test, or other test, for the presence of alcohol or an illicit drug. I specify that you must be at the home detention premises at all times unless for a relevant reason. In short, that means that you must be at those premises unless there is a need for urgent medical treatment, there is a serious risk of death or injury, or you already have the approval of a probation officer to be absent. It will be for the probation officer to determine what to approve so as to allow for treatment or rehabilitation, or to enable you to undertake your employment or for any other purpose. Those conditions will include that you not commit another offence punishable by imprisonment and that you comply with all directions given to you by your probation officer. There will be conditions that:
- you must submit to the supervision of a probation officer as required by that officer;
- you must not take any illicit or prohibited substances. Illicit and prohibited substances include any controlled drug as defined by the Misuse of Drugs Act 2001, and any medication containing an opiate, benzodiazepine, bupropion, hydrochloride or pseudoephedrine, unless you provide written evidence from your medical professional that you have been prescribed the relevant medication;
- you must not the during the operational period of the order consume alcohol;
- you must submit to any rehabilitation or treatment program as directed by a probation officer;
- you must submit to a medical, psychological, psychiatric or physical or mental health assessment or treatment as directed by a probation officer;
- you must maintain an active mobile phone service, provide the contact details to Community Corrections and be contactable at all times.;
- Mrs Chelsie Myers-Reynolds must not be present at the home detention premises between the hours of 10.00pm and 6.00am.
This order comes into effect immediately. You must understand that if you do not comply with the conditions, imprisonment is likely. If you breach the order by committing another offence, the order must be cancelled unless there are exceptional circumstances, and in that case imprisonment would be highly likely.