STATE OF TASMANIA v LIAM MICHAEL ELKIN 13 JUNE 2024
COMMENTS ON PASSING SENTENCE JAGO J
I have before me an application for breach of a suspended sentence, pursuant to s 27 of the Sentencing Act 1997. The respondent does not show cause in respect to the application but submits, through his counsel, that it would be unjust for me to activate the period of suspended imprisonment.
On 1 September 2023, I sentenced the respondent to 12 months’ imprisonment, wholly suspended on condition that for a period of two years he not commit another offence punishable by imprisonment, that he perform 100 hours of community service and that he be subject to the supervision of a probation officer.
The facts of the assault are set out in my Comments on Passing Sentence of 1 September 2023. I do not stay to repeat them, but in summary it was a serious example of drunken street violence. Mr Elkin and an associate confronted a man who had left a licensed premise and was walking to obtain food. Mr Elkin and his associate pinned the complainant up against a shop wall and in a two against one attack, punched him to the head and body area causing him to fall to the ground. Once on the ground, further blows were inflicted upon him. The complainant was left with serious injuries, including fractures to both the left and right side of his jaw which necessitated surgical intervention.
Mr Elkin, at the time I sentenced you for the crime of assault you were 27 years of age. You had a number of prior convictions, particularly in respect to driving offences. At the time of sentencing, it was apparent that much of your previous offending, and the commission of the assault, related to excessive alcohol consumption. I was told that excessive alcohol consumption had been an ongoing difficulty for you and that you were making a concerted effort to curb the amount of alcohol you were consuming.
At the time I sentenced you I said this:
“General deterrence is a significant sentencing consideration and its importance necessitates the imposition of a sentence of imprisonment. The only question for me is whether I should give you an opportunity to ovoid actually serving that sentence by suspending it. Because this crime occurred nearly three years ago, and you have since been subject to a Home Detention Order, which does appear to have encouraged you to reform your conduct and address your excessive alcohol consumption, I have determined that I should give you such an opportunity. You need to be very aware however, Mr Elkin, that this was a finely balanced determination and if you fail to comply with the conditions of suspension, including by committing an offence punishable by imprisonment during the period of suspension, and that includes most offences on the statute books, then it is highly likely indeed, almost inevitable, that you will be required to serve the sentence in prison”.
You breached the terms of the suspended sentence by committing offences of drive a motor vehicle while exceeding prescribed alcohol limit with a blood alcohol reading of 0.131 grams of alcohol; driver not holding Australian driver’s licence with alcohol in body; and drive whilst disqualified. All these offences occurred during the one act of driving on 18 January 2024. At the same time you committed some traffic infringement matters but they are not offences that breach the terms of the suspended sentence.
The breaching offences occurred in circumstances where the police saw you riding a motor bike on Middle Road in Devonport. The motor bike did not have any headlights illuminated and you were not wearing a helmet. The motor bike was being ridden on the incorrect side of the road. Given the circumstances of the offending, you must have appreciated that you were breaching the terms of the suspended sentence of imprisonment. You were also, of course, breaching a Court ordered period of licence disqualification.
The breaching offences occurred less than five months after the imposition of the suspended period of imprisonment. It could hardly be said that you have made a concerted effort to comply with the terms of suspension.
Your counsel submits I should not activate the suspended sentence because it would be unjust to do so. In particular, he points to the difference in the nature of the offending. He also submits that it would be a disproportionate response to activate the period of suspended imprisonment given the nature and gravity of the breaching offences. I disagree. The proper approach to the activation of suspended sentences is discussed in Tanner v Brown 2011 TASSC 59.
The broad question is whether the suspended sentence is having its desired effect in terms of rehabilitation. It could not be sensibly argued that in your case it is. There is nothing before me to suggest that you have embarked upon any long term or effective rehabilitation. Alcohol was the difficulty when I sentenced you in September 2023 and it appears you have done nothing to address that difficulty. I am told that there has not been alcohol counselling, or drug or alcohol courses made available to you whilst you have been subject to the Community Corrections Order. Whilst I accept, given my understanding of the difficulties on the North West Coast with some of those courses operating, that that may well be so, there was no prohibition on you seeking assistance yourself, or, indeed, simply limiting your alcohol consumption.
The blood alcohol reading of 0.131 is far from an inadvertent error. You must have known you had consumed a considerable quantity of alcohol and yet you still made the choice to drive the motor bike. You demonstrated no regard whatsoever, in my view, for your obligations to comply with the terms of the suspended sentence. As was noted by Porter J (as he then was) in Chatwin v Goddfrey 2013, TASC 70, the purpose of a suspended sentence is to punish as well as rehabilitate and the rehabilitative aspect is directed towards people becoming law abiding citizens, not selective offenders.
Generally speaking, if a defendant wastes an opportunity offered by the Court by re-offending, then a suspended sentence should be activated. Any unjustified departure from that principle undermines the integrity of the system of suspended sentences and impacts the extent to which they may deter future offenders. In the absence of evidence to suggest the suspended sentence is having its desired reformative effect, there is nothing about the nature, circumstances, or gravity of the breaching offences which justifies the conclusion that activation of the suspended sentence is unjust. The breaching offences were sufficiently serious to justify the imposition of a period of imprisonment in the Magistrates Court. I have carefully considered if the activation of the sentence will be a disproportionate response to the breaching offences, particularly given you received a period of imprisonment for that offending. I am not persuaded it would be unjust to activate the suspended sentence. I will address proportionality by the imposition of a non-parole period.
The application is granted. I order the 12 month period of imprisonment imposed on 1 September 2023 but held in suspense, be activated and that the respondent be required to serve it. I order the respondent be eligible for parole upon serving one half of that period of imprisonment.