STATE OF TASMANIA v HAYDEN DWAYNE COOK 22 MAY 2019
COMMENTS ON PASSING SENTENCE PEARCE J
Hayden Cook pleads guilty to aggravated assault. For about 18 months until March or April 2017 he was in a relationship with Natasha Richardson. By late 2017 Ms Richardson was in a new relationship with Dylan Dixon. On 27 December 2017 Ms Richardson was at the home of her friend Jessica Sutton in Gagebrook. Mr Dixon was there along with Ms Sutton’s partner and her two children. Early that afternoon the defendant rode his bike past the house on a number of occasions. He returned at about 4pm and parked the motor cycle more than 100 metres along the road with the motor still running. His presence was noticed and he was not welcome. Ms Richardson and Ms Sutton walked along the footpath towards him. Mr Dixon also moved in the defendant’s direction. The defendant shouted to Ms Richardson that it was not about her, and that it was Mr Dixon “he wanted”, and asked her to move. As he did so the defendant raised a gun he had taken with him and pointed it at Mr Dixon. Mr Dixon, from a distance of about 100 metres, said something like “just do it”, but the defendant lowered the gun and rode off. It is not asserted that anyone else, Ms Sutton’s children in particular, saw the defendant’s actions. The police were informed. The defendant was not interviewed until 20 February 2018 but denied that he was there, claimed to have an alibi, and made comments evidencing a high degree of continuing distress about his former relationship with Ms Richardson and acrimony towards Mr Dixon.
The threat the defendant made was not intended for Ms Richardson, but his conduct was a continuation of a series of family violence offences which commenced in 2015. On 17 June 2015 he was required to enter into an undertaking to be of good behaviour for offences including four breaches of a family violence order and three counts of injuring or destroying property. On 16 May 2016 he was sentenced to community service and probation for offences including three counts of breaching bail, four counts of breaching a family violence order or interim family violence order, and two counts of destroying property. On 26 October 2016 he was re-sentenced on those offences to a wholly suspended term of imprisonment of three months after he committed driving offences. The suspended sentence did not deter him. On 18 March 2017 a police family violence order was made to protect Ms Richardson. On 10 August 2017 the defendant was sentenced for one count of common assault, three counts of injure property, and six counts of breaching the police family violence order, all committed on or about 25 March 2017. He damaged Ms Richardson’s car and assaulted her by slapping her face. The suspended sentence was activated and he was sentenced to a further term of six months, three months of which was suspended for three years. He committed this crime not long after he was released from that period of custody and while he remained subject to the suspended part of the sentence. As a result, the suspended sentence must now be activated unless I am satisfied that is unjust.
Some mitigation arises from the plea of guilty. However the indication of a change of plea come only a day before the trial was due to commence, and after all but one of the witnesses had been briefed. To that extent it indicates a willingness to facilitate justice, and came after the State accepted that the defendant did not assault either Ms Richardson or Ms Sutton and amended the indictment accordingly. No doubt they were both fearful as a result of the defendant’s actions nevertheless. By his plea of guilty the defendant admits that he threatened Mr Dixon with a firearm and that Mr Dixon believed on reasonable grounds that he may be shot. It is not suggested that the defendant intended to carry out his threat. However there is always a chance that a gun may be fired accidentally, or through misadventure or momentary loss of control. It is accepted by the State that the weapon was a standard air rifle, so the risk that significant harm may have been done from a distance of around 100 metres was less. However Mr Dixon did not know what type of weapon was being pointed at him and believed that he would be shot until the weapon was lowered. The threat was relatively brief.
The defendant is 27. He is in a new relationship. He was educated to Grade 9. For the last six years or so he has consistently held employment as a labourer in a recycling business. He has a good relationship with his employer who is his friend and mentor. However he has displayed no remorse. When appearing in court he continued to adopt a belligerent attitude and an apparent unwillingness to accept responsibility for his actions. Despite these factors and his recent poor record I think he is capable of leading a responsible and productive life. It is to be hoped that the passage of time has had the effect of moderating his strong feelings. On the other hand, crimes of violence or threatened violence, particularly by resort to firearms, committed by disaffected partners to a former relationship are to be strongly condemned. The defendant did not act spontaneously. It could only be that the defendant took the gun with him on his motor cycle for the purpose of making a threat. Courts know that situations of relationship breakdown create high emotion and a real risk of violence. As far as is possible, sentences must make clear that offences of this type will be met with punishment in the hope that others will think twice before acting in a similar way.
The defendant’s counsel submitted that it would be unjust to activate all of the suspended sentence because if none of the six month head sentence had been suspended the defendant would have been entitled to a remission of two months. It is first to be pointed out that there is no entitlement to any remission. In this case there is no reason to conclude that a remission may not have been granted, but that should not be assumed. As a matter of principle, there is no error in having regard to the possible past availability of remissions in determining a sentence in a particular case. On the other hand, it would undermine the deterrent aspect of suspended sentences if offenders assumed a term activated after breach would be reduced for that reason. I have decided that the appropriate course is to balance the competing considerations by activating all of the suspended sentence, but making the sentence partly concurrent with the sentence for the new crime. The defendant was taken into custody on 14 May 2019 and the term he is to serve will commence then.
Hayden Cook, I activate the three month suspended part of the sentence imposed on when you were convicted on 10 August 2017 and order it be served commencing 14 May 2019. On the indictment you are convicted and sentenced to imprisonment for five months, one month of which will be served concurrently with the activated sentence, with the balance to be served cumulatively. The result of that order is a total term of seven months commencing 14 May 2019.