STATE OF TASMANIA v BJM 17 MARCH 2025
COMMENTS ON PASSING SENTENCE CUTHBERTSON J
BJM, you have pleaded guilty to charges of aggravated burglary, common assault and destroy property. I am dealing with last two charges pursuant to s 385A of the Criminal Code.
At 11.30pm on 28 December 2023, you, your then partner and another male went to the complainant’s house. The complainant was in the kitchen area at an open window smoking a cigarette. You approached him, holding a wooden pole which was approximately one metre long. You screamed at the complainant, asking him to get his son, wanted to know where he was and said you were going to kill him. You reached through the window and grabbed the complainant’s mobile phone to stop him calling police.
Your partner threw something at the complainant’s fence and it caught fire. The complainant went outside to put the fire out with water from his hose. While he was doing this, you entered the house through the front door which had been left open by the complainant when he went outside in a hurry to put out the fire. While in there, you called out to the complainant’s son, saying “come here, Brayden, I’m going to kill you“. You swung the wooden pole a couple of times and smashed two panels in the front window with the pole. This conduct constitutes the charge of destroy property.
The complainant’s son went into his bedroom, locked the door and called police. You left the house and continued to shout that you wanted to hurt the complainant’s son. You threatened to smash more of the complainant’s property. The complainant tried to calm you down but was unsuccessful. You then approached the complainant and swung the wooden pole at him. The complainant grabbed the pole and pushed it away. This conduct constitutes the charge of common assault.
One of the males with you, said words to the effect of, “don’t hurt him” and “we aren’t after you, we’re after Brayden“. You handed the complainant’s mobile phone back to him and the three of you walked away from the complainant’s property.
The complainant went inside his property and spoke to his son, who was still on the phone with police who later attended.
You voluntarily attended the Bellerive Police Station two days later and participated in an electronically recorded interview. You admitted attending the complainant’s house with your partner. You told police you were looking for the complainant’s son as he had sexually assaulted your daughter. Your intention when going to the house was to bash the complainant’s son. You told police you spoke to the complainant and asked him to get his son outside. You told police you just wanted to get the complainant’s son outside the house because you wanted to smack him in the mouth. You admitted smashing the windows at the complainant’s house with a wooden pole that you claimed to have picked up at the beach. You denied going inside the house, threatening to kill the complainant’s son or swinging the wooden pole at the complainant. I note those denials are inconsistent with your current pleas of guilty and your acceptance of the facts relied upon by the Crown. You told police you could have done a lot more. You said you were apologetic towards the complainant.
You are guilty of the crime of aggravated burglary because you entered the complainant’s house as a trespasser with the intention of committing the crime of assault. It is quite clear from your admissions to police that you went to the complainant’s residence for the purpose of assaulting the complainant’s son. You had armed yourself with a wooden pole.
You are 30 years old. You have some prior convictions for unrelated matters. You are now single and raising your two children. Your former partner was originally charged with you, but was discharged in respect of these offences. You claim he was the one who had the idea to go to the complainant’s house on this occasion.
Approximately four years ago, a complaint was made to Tasmania Police concerning an allegation that the complainant’s son had sexually assaulted your daughter. She was approximately nine years old at the time. Following an investigation, Tasmania Police made a decision they would not proceed with any charges. Shortly prior to this offending occurring, you and your then partner heard that the complainant’s son had been charged with a sexual offence involving another child. I am told this caused you and your then partner’s distress about the allegations concerning your own daughter to re-emerge.
Your counsel concedes that although it may not have been your idea initially to attend the complainant’s residence, you were clearly a willing participant in the incident that followed.
I do not have a victim impact statement in relation to the matter, but it would have been a very frightening experience for all involved.
Prior to committing this offence, you held a Working with Vulnerable Persons clearance. You had been working as a volunteer with the Launch into Learning programme at the local primary school. Your Working with Vulnerable Persons clearance has now been suspended. You had also been studying to be a Teacher’s Assistant with TAFE. I am told you had wanted to become a Teacher’s Assistant. You are now concerned that a suspension of your Working with Vulnerable Persons clearance puts that goal in jeopardy. Your counsel submits that this is a matter that I can take into account when determining what penalty to impose upon you.
Your relationship with the father of your children has since broken down. I am told your ex-partner was abusing drugs. The breakdown in your relationship has left you in a poor financial situation where you are the sole provider for your two children. You are reliant on Centrelink benefits. Unfortunately, those benefits do not cover your costs and you have incurred some debt. There are allegations of family violence in the context of the breakdown of your relationship which have caused you some significant distress.
Your counsel submits that you are remorseful for your offending conduct. It is noted that you attended the police station voluntarily and made admissions. Your counsel argues that your admissions reflect that you immediately knew you had done the wrong thing. It is, however, the case that you did not make admissions to the full extent of the conduct you have ultimately pleaded guilty to. You did not, for example, admit entering the premises, making threats to kill the complainant’s son or assaulting the complainant by a threatening gesture.
You have pleaded guilty to these offences, however, this did not occur until after your committal to the Supreme Court. It is difficult to characterise that as an early plea of guilty in circumstances where the matter was before the Magistrates Court for some months. You initially pleaded not guilty in the Magistrates Court in October 2024. You were not committed for trial to this Court until November 2024. Your plea of guilty was, however, indicated on the first appearance in this jurisdiction. I accept you have saved the State the need to conduct a trial, however, it appears to me it was a very strong case given the extent of your admissions.
As to your background more generally, you had your first child when you were 16 years old. That interrupted your education and you left school part way through Year 11. You have had some work as a cleaner and in the hospitality and gaming industry. I am told you are experiencing some anxiety and depression as a consequence of the family violence you have recently experienced.
Your counsel urged me to obtain a pre-sentence report on the basis that you would be someone who would be able to undertake Community Service and potentially probation. It was submitted that a period of imprisonment could be wholly suspended and combined with Community Service and a Corrections Order.
Community Corrections had assessed you as unsuitable to participate in Court ordered Community Service. At interview, you told Community Corrections you were the primary and only caregiver of your two children, the youngest of which has considerable behavioural concerns. You told Community Corrections you would be unable to participate in a Community Service roster for that reason. You were also deemed unsuitable for the imposition of community-based supervision due to having limited criminogenic risks in need of targeting from their service. You reported you are already engaged with services providing housing, counselling and employment support.
I note that the information you provided to Community Corrections is not entirely consistent with what I was told by your counsel. Your counsel told me that you had been studying at TAFE and doing volunteer work at a primary school. This suggests that you do have, at least, some capacity to make yourself available for ordered Community Service. I requested that Community Corrections attend the Court to provide further information. I am now told that projects can be made available for you and that you will be able to perform Community Service, particularly during school hours.
I regard your offending as very serious. You attended the complainant’s address, entered his residence armed with a stick and shouting, making it very clear that you intended and wanted to cause harm to his son. This must have been a terrifying experience. I accept no one was physically injured as a consequence of your conduct. However, you did cause damage to the complainant’s property.
The distress about your daughter is entirely understandable. It is not, however, an excuse to take the law into your own hands. Such vigilantism must be strongly condemned by this Court. Offences such as these justifiably attract significant periods of imprisonment. Balancing all of the relevant factors, including your pleas of guilty, your lack of relevant prior convictions and your personal circumstances I am, however, satisfied a sentence requiring you to serve an immediate term of imprisonment is not necessary at this stage. I will, however, impose a period of wholly suspended imprisonment, together with the performance of Community Service and supervision by a probation officer, which will serve as a punishment and a further incentive to you not to engage in such conduct again. I accept it will be difficult for you to perform Community Service given your parenting responsibilities, however, I consider that those responsibilities do not justify a conclusion that you are unable to comply with such an order.
BJM, you are convicted on all three counts. You are sentenced to nine months’ imprisonment, wholly suspended on condition that you commit no offence punishable by imprisonment within the next 18 months. It is a further condition of the suspension of your sentence that you perform 50 hours of Community Service within 18 months of the date of this order and be supervised by a probation officer. There are a number of additional conditions I am required to impose. You must report, on or before 4:00pm on Tuesday, 18 March 2025, to a probation officer at the offices of Community Corrections at 75 Liverpool Street, Hobart. You must, during the operational period of the order, report to a probation officer as required by the probation officer. You must, during the operational period of the order, comply with the reasonable and lawful directions of a probation officer or a supervisor. You must not, during the operational period of the order, leave, or remain outside, Tasmania without the permission of a probation officer. You must, during the operational period of the order, give notice to a probation officer of any change of address or employment before, or within two working days after, the change. You must, during the operational period of the order, attend educational or other programs as directed by a probation officer. You must, during the operational period of the order, submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
If you breach any of these conditions, you may be brought back to the Court and re-sentenced. In particular, if you commit a further offence punishable by imprisonment, then a court must order that you serve the term of nine months’ imprisonment, as well as any additional sentence, unless that is unjust.
I also make a compensation order pursuant to s 68(1) of the Sentencing Act 1997 in favour of Australia Insurance Limited (CGU Insurance) in an amount to be fixed.