STATE OF TASMANIA v JOHN GREGORY PECK 21 DECEMBER 2021
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Peck, the defendant, has pleaded guilty to one count of assault on one indictment, and to counts of dangerous driving and being unlawfully armed in public on another indictment. I am also dealing with his pleas of guilty to five summary offences that relate to the offences the subject of the second indictment. They are possessing a stolen firearm, possessing a shortened firearm, possessing a firearm when not the holder of a firearm licence, possessing ammunition when not the holder of a firearm licence, and being secreted within the curtilage of a dwelling house. The assault was committed on 29 June 2018 and involved an attack in a hotel by the defendant in company with two others. The complainant, Kaspar O’Donoghue was staying at the hotel on that day. At about 7.30pm he spoke to a group of three males in the bar. One of the males was the defendant; the other two were ZR and LB. For some unknown reason, a person came to the group and asked the three why they were talking to the complainant. For another unknown reason, ZR told the complainant to go outside and fight. The complainant, in effect, said he did not want to fight and he would try to avoid doing that. A physical confrontation was avoided and eventually, the complainant made his upstairs to his room and stayed there for about half an hour before going back to the bar. He noticed the three men were still there but tried to avoid them. However, LB struck him with an open hand to the area of his left eye as he walked passed. The complainant then ordered a beer and went outside where he encountered ZR by himself. He was standing near a door to the male toilet. The complainant became aware that LB and the defendant were behind him. ZR opened the door to the toilet, and the defendant and LB pushed the complainant inside. ZR held the toilet door shut while LB and the defendant punched and kicked the complainant, while ZR filmed the assault with a mobile phone. The complainant describes the assault as going on for about seven or eight minutes during which time he was either standing up or was on the ground. He said each time he tried to stand up he was put on the ground. He asked to be left alone and one of them said that they were going to kill him, he thought he was going to die. When the assault ceased the complainant ran upstairs to his accommodation where he managed to close the door but it seems the men followed him. He heard someone say not to tell “the cops” and that they were going to kill him. The hotel licensee drove the complainant to hospital where he was treated for injuries which included two comminuted fractures to the left eye socket, facial bruising and abrasions, and soreness in the body. The next day, the complainant reported the matter to police and investigations commenced. On 2 October 2018, the defendant was interviewed and denied being involved in the assault, but said he goes to the particular hotel, that he has heard of ZR and that he knowns LB. He was charged and bailed. There is no victim impact statement but as at January 2019 the complainant reported no long-lasting effects of the assault. As to the defendant’s level of involvement, the State does not dispute that the defendant was not the instigator, and that his physical involvement was restricted to one kick and one punch.
In relation to the second indictment and related matters, the facts are as follows. At about 12.45am on Saturday, 1 June 2019, police were called to a street in South Launceston where three males had arrived in a car, parked in nearby Leslie Street and started to act suspiciously. Police kept the three males under observation and saw them walking towards the car. One of these men was the defendant, who was in possession of a pipe-like object believed at the time to be possibly a firearm. As the defendant reached the car, an officer started moving towards it in a police vehicle. The defendant got into the driver’s seat of the car, and he was alone. An officer on foot approached the driver’s side door and asked the defendant to stop, at which point he locked the car’s doors. The officer attempted to open the driver’s side door, at which time he was able to have a good view of the driver. During attempts to open the driver’s door, the defendant rapidly accelerated down the street without headlights on. Police noticed the rear registration plate was partially obscured by means of an object. The defendant attained an estimated speed of 100 km/h in a 50 km/h zone. As he was still travelling down Leslie Street, another police drove into that street from the opposite direction. He noticed the vehicle coming towards him with no headlights on and being driven at speed. That officer had to pull the police vehicle close to the left hand side of the road to avoid being hit head on. The defendant continued but failed to negotiate a turn at an intersection, mounted the gutter and the vehicle collided with a fence. He fled on foot taking a 12 gauge shotgun with him. He ran through the front yard of one home, before jumping a fence and hiding in the backyard of another. When police arrived they found the abandoned car and a 12 gauge shotgun shell on the ground near the driver’s door. The shotgun was found on the front lawn of the first home. The defendant was found hiding behind a shrub in the rear yard of the second home. In the defendant’s possession police found seven shotgun shells in a small bag, a pair of gloves, a balaclava and a small torch. Checks revealed the gun was a stolen firearm, having been taken in a burglary in Bothwell in 2015. The defendant did not hold a firearms licence. The shotgun had a barrel shortened to approximately 450mm from its original length of about 915mm. The defendant was arrested but refused to participate in an interview. I note that the defendant was remanded in custody on 1 June 2019 and although being granted bail on 3 June 2019, the conditions were not fulfilled until 8 July 2019, and so he has spent about five weeks in custody.
The defendant is now 33 years old. He has a recorded history of offending, some of it relevant. At the time of the commission of both lots of offending, he had convictions for a number of traffic matters, including two for driving without a licence and three for driving whilst disqualified. The latter convictions were imposed in 2009, 2014 and 2016. In 2017 he was convicted of resisting a police officer and possessing ammunition when not the holder of an appropriate licence. He appeared again in May 2018, primarily for drug matters, but he was also convicted of possessing a firearm to which a firearm licence may not be issued. Since this offending he has appeared in court on two occasions on other matters. There is drug offending from between the assault and the present driving and related offences. On those, and other later matters, he was sentenced to two months’ imprisonment commencing on 21 June 2019. There are later minor drug convictions. As to the defendant’s personal circumstances and his involvement in the offending, I have the benefit of his counsel’s submissions along with a comprehensive drug treatment order assessment report dated 15 December 2021. There does not seem to be anything significant in relation to the defendant’s upbringing that is relevant to his offending. In terms of his present personal circumstances, his brother has Down Syndrome and autism spectrum disorder and requires full-time care. The brother also has epilepsy and can have seizures up to 25 times a day. Since the defendant’s father died, the defendant has been required to help his mother provide an adequate level of care to his brother. The defendant is the only person who can help in picking up his brother from a fall and in similar situations. I was told that the defendant had a good industrial record and has held stable employment for most of his adult life. This included completing an apprenticeship as a chef and working with the same removal company for a period of 10 years which position ultimately involved one of responsibility. That employment was terminated due to illicit drug use. It seems a combination of life-changing events saw the defendant start to use methylamphetamine with a rapid escalation of that use. The first in time was about five years ago with the end of his relationship of 18 years with a woman with whom he has two children. He describes to the probation officer a feeling of having lost his purpose in life as a partner and father, and drugs became a coping mechanism. It would also seem that at about this time his mother was diagnosed with breast cancer for which she was required to undergo chemotherapy. Later, the defendant’s father suffered a major stroke which left him wheelchair bound and in a poor mental state. The defendant took care of him. Mr Peck senior died in 2018. The defendant was present and tried to revive him. All of this led to an escalation to heavy daily drug use, exacerbating which was the death of an aunt who had looked after him and supported him throughout his mother’s cancer treatment and his father’s death. He has made attempts to end his substance abuse. There have been attempts at reconciliation with his partner but a hoped for reunion did not happen and he relapsed. As to the offending, it was put that he has no prior convictions for violence, and that the acts were out of character. They came as a result of heavy drug use and the nature of the people with whom he was associating. As to the assault, little, if anything was said about the reasons for the defendant becoming involved in this crime. It seems that he was involved in criminal elements. It seems to be a gratuitous attack, possibly on the basis of some perceived slight. As to the later offending, the defendant and the two others were in the area looking for a place to enter in order to obtain things to fund their drug use. I was told the defendant panicked and just took off, his primary concern, of course, being to avoid being put in custody. He had the firearm in his possession only for a short period, and did not know that it was stolen, but accepts it came to him in circumstances in which he ought to have been aware that it was. I was told that he had no intention for the firearm to be actually used. I take into account his pleas of guilty. Although not entered at an early time, other crimes were charged on both indictments, and have been discontinued. I note there are reasonable prospects of his rehabilitation. For the past two months he has had casual work in concreting. He has insight into what has happened in his life and why he has offended, and is intent on returning to a drug-free lifestyle. The desire to continue to care for his younger brother is also relevant in this respect.
I have already mentioned the unexplained gratuitous nature of the assault. It was a serious matter involving a cowardly group attack while the victim was confined in the toilet. It is fortunate he was not more seriously injured. Such conduct needs to be strongly condemned. The later offending must also be regarded in a serious light. The defendant was looking for an opportunity to commit an offence to gain money or property while in possession of a stolen firearm with ammunition for it. The firearms offences themselves should not be overlooked, particularly the origin of the shotgun. Stolen firearms are notoriously the subject of trade and use by criminal elements. The driving might be put down to panic given what his activities and perhaps a level of illicit substances in his body, but the fact remains that he drove dangerously and put the safety of police officers at risk. This was also in a residential street. I was not told the distance involved but I would estimate approximately 500 metres with about two or so intersecting streets before the one where the vehicle crashed. He was charged with evading police, but that is not before me. It remains relevant as the reason for the manner of driving. Having said all of that, I am satisfied that taking a course that does not involve immediate imprisonment is appropriate in all of the circumstances. I cannot be satisfied that the injuries to Mr O’Donoghue did not involve actual bodily harm, and a drug treatment order cannot be made in respect of that crime. On the other indictment and the remaining offences I am satisfied that a drug treatment order is appropriate with the criteria having been satisfied, and in setting the custodial part I take into account the period of time already spent in custody.
Mr Peck, I have set out the facts, your relevant personal circumstances, and the considerations which need to be taken into account. For the crime of assault, you are convicted and sentenced to six months’ imprisonment the execution which is wholly suspended on condition you commit no offence punishable by imprisonment for a period of two years. As to the remaining matters, with the exception of the possess ammunition charge, you are convicted and subject to your agreement, I make a drug treatment order by which you are sentenced to a term of imprisonment of 12 months, all or any of which custodial part you will not be required to serve unless ordered to do so, or if the order is cancelled. That order will contain the core conditions as provided for in the Sentencing Act. They will be set out in writing. As to the core condition set out in par (b) of s 27G(1), which requires attending at court whenever the court directs, the first directed appearance is the Launceston Magistrates Court on 13 January 2022 at 10 am, and under par (c) of that subsection you will have to report to a court diversion officer at 111 Cameron Street, Launceston by midday tomorrow, 22 December 2021. Program conditions under s 27H of the Act will be as follows:
1 You must submit to drug testing, including random drug testing, urinalysis and oral fluid testing.
2 You must submit to detoxification or other treatment, whether or not residential in nature.
3 You must attend vocational, educational, employment, rehabilitation or other programs, including the EQUIPS Addiction Program.
4 You must submit to medical, psychiatric or psychological assessments or treatment.
5 You must not associate with persons or class of persons as may be directed by the case manager or a court diversion officer.
6 You must live at [address] and not change that address without the prior approval of the case manager, a court diversion officer, a judge of this Court or a magistrate, and you must be present at that address between the hours of 10pm and 7am each day unless otherwise expressly authorised by the case manager or court diversion officers.
7 You must not use any illicit drugs or substances, or any prescription or non-prescription medication unless prescribed by a treating doctor or recommended in writing by a pharmacist.
8 You must maintain the use of a working mobile phone in order to send or receive messages about drug testing, case management and/or appointments from your case manager and court diversion officers, and you must remain contactable at all times.
[The defendant agreed to the making of the order] With that agreement, I make the drug treatment order in those terms. On the charge of possessing ammunition without a licence, being charge 5 on complaint 32797/19, you are convicted and discharged. Finally, I order that you be disqualified from driving for a period of 18 months.