STATE OF TASMANIA v KYE THOMAS RAYMOND EDGAR 12 MARCH 2024
COMMENTS ON PASSING SENTENCE JAGO J
Mr Edgar, you have pleaded guilty to one count of assault under the Criminal Code. The charge relates to an incident that occurred on 6 August 2021 when you, after a night out drinking alcohol with some friends, punched the complainant to the head twice.
You and the complainant were not known to each other. You were, however, both at the Pub Rock Diner in Devonport. Three of your friends were at the Pub Rock Diner with you. You were all celebrating a birthday. At approximately midnight the complainant left the diner. He approached one of your friends. A confrontation ensued between those two men which resulted in your friend being pushed up against a shop window by the complainant. You and your other two friends arrived and observed this. You all ran towards the complainant and your friend and separated them. A verbal disagreement ensued which quickly escalated and became physical. Initially, you did not get involved with the physical altercation, although it seems all of your friends did. The incident was captured on CCTV footage. Your friends can be seen assaulting the complainant. You are then seen to strike the complainant to the head area twice whilst the complainant was vulnerable and being assaulted by your friends.
The complainant was taken to hospital. As a result of the assault, he suffered fractures to the hyoid bone. He also had a cut lip, which was closed with two sutures. He spent time in the ICU as fractures to the hyoid bone can result in a compromised airway. Fortunately, in this case, that did not eventuate.
The State do not assert that you bear criminal responsibility for the actions of your friends. Your criminal responsibility is limited to the two punches you inflicted. The State also accept the primary injury suffered by the complainant did not arise as a consequence of your assault upon the complainant. Nevertheless, assaulting a person by punching them to the head is a dangerous act, particularly in circumstances where the complainant is already subject to an attack and has limited opportunity to defend himself.
You are 22 years of age. You were 20 when this crime occurred. You originally pleaded guilty to this crime in the Magistrates Court in December 2021. The matter was committed to this Court for sentence. There was, however, an administrative error, as the complaint was not correctly endorsed, hence an indictment had to be raised. There was then some delay in the matter being finalised, predominately because of proceedings that were occurring in respect to co-accused. This was confirmed as a plea of guilty in December 2023.
Since the commission of the crime, I am told you have re-prioritised matters in your life. You have full time employment. You are well regarded in that employment. You are in a stable relationship. You no longer consume alcohol to excess. In essence, you live a relatively quiet lifestyle focused on providing for your family.
On this evening, you made a foolish decision to become involved in the physical altercation that was occurring between the complainant and your friends. You thought, I am told, that if you became involved, the situation may be brought to an end sooner. Obviously, that was a misguided approach and in fact your behaviour only exacerbated the violence inflicted upon the complainant.
By way of criminal history, you were dealt with in the Youth Justice Court for some matters involving disorderly conduct, offences against police and abusive language in 2019. There is also a matter of common assault that was dealt with in the Youth Justice division by way of dismissal and reprimand in 2019. You have no prior convictions as an adult.
Of course, violence is not excusable under any circumstances and all too often the Court deals with incidents of violence that arise after persons have been consuming alcohol. I accept here, that you became involved in this matter because of what was happening with your friend. I also accept that you now recognise the foolishness of that decision, and you have re-evaluated your priorities. The likelihood of this type of incident reoccurring is, in my assessment, low. I note your early plea of guilty. I accept you are remorseful and now have insight into the seriousness of what you did. In all of the circumstances I do not consider that a period of imprisonment is warranted, but overall sentencing considerations call for a penalty of some substance. Whilst I do not think specific deterrence is a weighty factor, general deterrence is always an important consideration in sentencing a matter of this nature.
I make the following orders.
You are convicted of the crime of assault. I make a Community Correction Order for an operational period of 12 months from today. The statutory core conditions of a Community Correction Order are imposed. Those conditions will be set out in a document that will be provided to you. In summary, they will include the following conditions that will apply for the entire operational period:
- You must not commit an offence punishable by imprisonment;
- You must report to a probation officer as required by the probation officer;
- You must comply with the reasonable and lawful directions of a probation officer or a supervisor;
- You must not leave or remain outside of Tasmania without the permission of a probation officer; and
- You must give notice to a probation officer of any change of address or employment before or within 2 working days after the change.
I also impose the following special conditions:
- You must during the operational period of the order submit to the supervision of a probation officer as required by the probation officer;
- You must comply with directions regarding referrals to and compliance with alcohol and drug services and mental health services;
- You must undergo assessment and treatment for alcohol or drug dependency if directed to do so by a probation officer; and
- You must for the duration of the operational period of the order submit to medical, psychological or psychiatric assessment or treatment if directed to do so by a probation officer;
There will also be an order that within the operational period you perform 98 hours of community service and that you comply with any directions given to you by a probation officer or community service supervisor and satisfactorily perform those hours as directed by a probation officer or community service supervisor.
I order that you must report to Community Corrections, Devonport by no later than 5pm tomorrow for induction into this order.