STATE OF TASMANIA v ADON AXEL HARDING 2 JULY 2020
STATE OF TASMANIA v S R C
STATE OF TASMANIA v ZOE LEANNE WHILEY
STATE OF TASMANIA v DYSON NOEL ROUGHLEY BRETT J
Mr Harding, you have pleaded guilty to one count of dangerous driving, two counts of assault and one count of unlawfully injuring property. Mr Roughley, Mr C and Ms Whiley, you have each pleaded guilty to one count of assault. I intend to make some general comments and will then deal with each of your specific cases.
The unfortunate series of events during which these crimes were committed took place on 29 August 2019. It commenced when Mr Guest and Mr Harding met by chance at Harvey Norman in Burnie. There was a confrontation between them. This occurred in the context of what would seem to be a lengthy and intense conflict which had developed between Mr Guest and his family on the one hand, and the defendants and their respective families, on the other. The defendants assert that in the course of that conflict, Mr Guest had engaged in a vendetta against them and their families. I understand this to mean that he had acted in a threatening and provocative way on a number of occasions, including not long before these events took place. There is no evidence to dispute this, and I must proceed on the basis that, at the very least, Mr Guest had contributed to the perpetuation of this conflict and the resulting bitterness that had developed between the two groups. On the other hand, Ms Wiley and Mr Harding had both been previously dealt with by the Magistrates Court for assaulting Mr Guest. The assaults had been committed on 14 November 2018 and were dealt with by the court in March 2019. The court had not recorded a conviction against Mr Harding on his undertaking to be of good behaviour for 18 months. Ms Whiley had received a global sentence of imprisonment for a number of offences, including the assault. Clearly, they, at least, had also made a contribution to the conflict.
When the confrontation at Harvey Norman took place, Mr Guest was with his partner and his 14 year old stepdaughter. She was pregnant at the time of these events. After the confrontation, Mr Guest and his family went to Kmart. Mr Harding had heard him say that that is where he was going. He immediately arranged to collect Mr C, and they went to Kmart to confront Mr Guest. Mr C took with him a baseball bat, clearly for use as a weapon. Ms Whiley also came with them, although she disputes that she knew or intended that there would be a confrontation. As sceptical as I might be about that claim, I will proceed on the basis that at that point, what she says about her state of mind is correct.
When they reached Kmart, Mr Harding parked near the boom gate at the exit of the carpark. Mr Guest’s partner was in a vehicle waiting in a line of traffic to exit the carpark, and Mr Guest and his stepdaughter were in another vehicle further back in the line of traffic. Whatever may have been her intention to that point, it is clear that Ms Whiley acted in an aggressive manner from then onwards. She left her vehicle and approached the vehicle containing Mr Guest’s partner, and started yelling and pointing at her. Mr C approached the other vehicle and started to hit the driver side window with the baseball bat. Ms Whiley joined in the attack on Mr Guest’s vehicle by punching it with her fists. Mr Guest, who found himself blocked from leaving the carpark, drove back to the upper level. He clearly did so in an effort to escape this attack. Mr Harding then drove after him and followed him through the upper and lower levels of the carpark several times. During the course of this pursuit, Mr C hit Mr Guest’s car with a shopping trolley, and the windscreen of the car with the baseball bat. At some point during these events, Mr Guest’s car struck Mr C. This caused Mr C to be flung through the air. It was later discovered that he had suffered bruising but he was not otherwise injured. It is not disputed that the collision was accidental on Mr Guest’s part.
Eventually, Mr Guest was able to leave the carpark. Ms Whiley and Mr C got back into the car with Mr Harding and they also exited the carpark. It was at this point that Mr Harding commenced to commit the crime of dangerous driving. He was clearly chasing after Mr Guest’s vehicle. As he left the carpark, he accelerated harshly causing his tyres to screech and lose traction. He cut in front of two cars, narrowly missing the front car. He then followed Mr Guest’s car which was rolling backward down Alexander Street.
Mr Harding then deliberately drove onto the incorrect side of the road and accelerated his car causing it to ram into the front of Mr Guest’s reversing vehicle. He continued to accelerate and pushed Mr Guest’s vehicle off the road and onto the footpath. Mr Guest’s vehicle came to halt on the footpath near the public library. At the time, both Mr Guest and his stepdaughter were in the front seat. The force of the impact caused both to be thrown dangerously, impacting various parts of their bodies on the interior of the car.
Mr Guest and his stepdaughter got out of the car. The stepdaughter was disoriented and was assisted by a member of the public. Mr Harding and Mr C chased Mr Guest along the street. Mr C still had possession of the baseball bat. They caught up with him at the entrance of a nearby bottleshop, and immediately started to assault him. Mr C hit him to the head and shoulder with the bat approximately three times. Mr Harding placed him in a chokehold, while Mr C punched him to the head several times. Eventually, Mr Guest was able to get away and staff of the bottleshop helped him take refuge in a store room. Mr Harding and Mr C then left the store. It is apparent from the CCTV footage of this event that Ms Whiley had come to the entrance of the bottleshop and was watching this assault.
Approximately 7 to 8 minutes later, Mr Roughley and Ms Whiley entered the bottleshop. They located Mr Guest, who had remained in the shop, and chased him and cornered him in the store room. Ms Whiley then punched him at least twice before a member of the public stepped between them. Mr Roughly then pushed past that person and scruffed Mr Guest, pushing him up against the wall. He then punched him to the face three times causing him to fall to the ground. Ms Whiley then kicked Mr Guest to the face, verbally abused him, and kicked him again in the face. Mr Roughly was standing over Mr Guest while this happened. The defendants then left the bottleshop.
As a result of the assaults, Mr Guest suffered facial and body bruising, a blood nose, headaches, dizziness and an ongoing sore arm. His stepdaughter suffered bruising from impact caused by the collision. I have received victim impact statements from both. They claim significant ongoing psychological trauma as a result of these events. Having regard to the past history of conflict between the families, and in particular Mr Guest’s contribution to that conflict, I will apply an appropriate level of circumspection to these claims. However, it is clear that each was subjected to events which must have been traumatic and terrifying. I have no doubt that some level of ongoing trauma has resulted from their experience.
In addition, Mr Guest’s vehicle suffered significant damage. The cost of repair has been quoted at $6,206.27, as well as a towing charge of $308.
I will make some general comments about these events and then deal with each of you in turn. Firstly, it is undisputed that you were the aggressors throughout this entire incident. The only reaction of the complainants throughout was to attempt to escape. They were chased down and violently attacked, firstly by attacks on their motor vehicle, and then by Mr Guest being chased through the streets and violently assaulted on two separate occasions. Your aggressive and violent attitude is apparent from the CCTV footage of the assaults in the bottleshop. On neither occasion does Mr Guest attempt to fight back or prolong the assault. On the second occasion, he is running for the refuge of the storeroom when you catch him and then assault him. Both assaults are prolonged and brutal. They are clearly accompanied by a tirade of verbal abuse from most if not all of you. All of this happened in public, without any regard for the impact of your actions on other people. The events took place in the late afternoon on a weekday. There was traffic on the street and others in the vicinity. It was at a time when it could be expected that there were many members of the public around, including those leaving work or shopping. In essence, you turned the CBD of Burnie into a battlefield in order to give vent to your own personal grievances. Public violence of this nature has no place in our society. Your actions constituted crimes not just against Mr Guest and his family, but against the entire Burnie community. You repudiated the peace and security which the public is entitled to expect on its streets.
Further, whatever might be the rights and wrongs of this pathetic ongoing feud between you and Mr Guest, I do not regard its existence or Mr Guest’s contribution to it, as a mitigating factor for the crimes each of you committed on the night in question. It simply provides an explanation and a motive for you to act in the way that you did. I am also not satisfied that any of you can rightly claim that your actions occurred in the heat of anger, without adequate time for reflection. You all deliberately, at some point or another, acted with deliberation and premeditation. Mr Harding and Mr C went to the carpark specifically to confront Mr Guest. One of them took a weapon with him. Ms Whiley calmly observed the first assault, and then returned 7-8 minutes later with Mr Roughley clearly, to initiate another assault. Mr Roughley came to the scene obviously to get involved. Each of you could have withdrawn from this at any time. It is clear that neither complainant wanted anything to do with it and did nothing to perpetuate it. Your actions were not responsive, they were clearly motivated solely and at all times throughout this incident, by a desire to exact retribution. These observations significantly aggravate the moral culpability of each of you.
I will now deal with each of you in turn.
Mr Harding, you were 19 years of age at the time. You are now 20. When you committed this crime, your criminal record consisted of some relatively minor traffic and bail offences, as well as the more serious assault matter involving Mr Guest. You have since been convicted of some other offences, which were committed before the crimes with which I am dealing. These include destroying property and disorderly conduct. You are unemployed, you have an infant child and you are currently in receipt of a disability pension for a condition of ADHD. You have entered an early plea of guilty and this is to your credit.
The dangerous driving is a very serious example of that crime. Although the driving was short lived, you deliberately drove at and rammed a vehicle which contained two people, and used your vehicle to push that vehicle back onto the footpath. It is very fortunate that no one was injured by those actions. However, the outcome could have been disastrous. You placed the Mr Guest and his stepdaughter, who, I reiterate, was pregnant at the time, as well as your passengers and yourself, at immediate and extreme risk. There was also obvious risk to members of the public. There were cars and pedestrians around at the time. As I have already noted, the fact that you committed such a crime in a busy shopping area and on a busy street in the CBD is an aggravating factor. The only explanation offered for your conduct was that you had become enraged because you believed that Mr Guest had deliberately driven into Mr C. However, you must have been aware that Mr C had not been seriously injured because he had got back into your car before you what you did. Further, it was you and your companions who had commenced the aggression. You were chasing Mr Guest and his stepdaughter when you drove as you did, and you deliberately used your moving vehicle as a weapon to cause them harm. Further, rather than check on their welfare after ramming their car, which is what you should have done, you left the stepdaughter to her fate and chased Mr Guest through the streets, and then violently assaulted him. You did all this despite having promised the court a few months earlier that you would be of good behaviour. I am well aware of your age and relative lack of prior convictions. However, the serious nature of your conduct requires the imposition of a sentence of imprisonment, some of which must be served in actual custody. I will, however, suspend part of the sentence to acknowledge your early plea of guilty and your age and background.
The orders I make in your case are as follows:
1 You are convicted of the crimes to which you have pleaded guilty.
2 I impose a global sentence of 18 months’ imprisonment, which will be backdated to the 19 June 2020. The last 9 months of the sentence will be suspended for a period of 18 months on the following conditions:
(a) That you are not to commit another offence punishable by imprisonment during that period.
(b) That you will be subject to the supervision of a probation officer during that time. You must comply with this condition for a period of 18 months. That period will commence from when you lawfully cease to be imprisoned under this sentence. The Court notes that the conditions referred to in s 24(5B) of the Sentencing Act apply to this condition. These include that you must report to a probation officer within three clear days of the day that you lawfully cease to be imprisoned under the sentence. In addition to the core conditions the order shall also include the following special conditions:
(i) you must, during the operational period of the order, attend educational and other programs as directed by the Court or a probation officer;
(ii) you must, during the operational period of the order, submit to the supervision of a probation officer as required by the probation officer;
(iii) you must, during the operational period of the order, submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer;
(iv) you must attend, participate in and complete the EQUIPS aggression program as directed by a probation officer.
3 Further, you are disqualified from driving for a period of two years. That period will commence from the date of your release from prison.
4 Finally, I make a compensation order against you in favour of Kurt Charles Guest in the sum of $6,514.27.
Mr C, you were 17 years of age at the time of these events. Approximately, four weeks before committing this crime you had been released by the Youth Division of the Magistrates Court in respect of sentencing for a number of offences, on condition that you submit to supervision. A report provided to me suggests that you have responded well to that supervision. Your moral culpability for the assault is aggravated by your use of the weapon and the fact that you perpetrated the assault in company and in public. However, you claim now to regret your actions. You entered a plea at an early opportunity, and I can take this as some evidence of your remorse. In my view, the seriousness of the assault deserves the imposition of a sentence of imprisonment. However, because you were a youth at the time, although I do not think it appropriate to deal with you under the Youth Justice Act, I do intend to proceed by way of a community based order. It will include the obligation to perform some community service.
You are convicted of the crime of assault. I make a community correction order. You must comply with the order for a period of thirty (30) months, and that period shall commence today. The core conditions of the order require you to report to a probation officer, and you shall do so at the office of Community Corrections in Burnie within three clear days of today. In addition to the core conditions, the order shall also include the following special conditions:
(a) you must, during the operational period of the order, attend educational and other programs as directed by the Court or a probation officer;
(b) you must submit to the supervision of a probation officer as required by the probation officer;
(c) you must satisfactorily perform community service as directed by a probation officer or a supervisor for a total of 156 hours;
(d) you must attend, participate in and complete the EQUIPS aggression program as directed by a probation officer.
Ms Whiley, as I have already noted, you claim that you did not go to the carpark with any intention of committing assault or even confronting Mr Guest. Despite my scepticism about this, I must accept this claim. However, it matters little with respect to your culpability for what happened after you got there. You committed an extremely serious assault in company and in someone else’s retail premises, which were, of course, open to the public. The assault was brutal. You delivered punches to the head, and kicked Mr Guest twice to the face while he was on the ground. It is clear that you did not act on the spur of the moment. After watching the first assault, you went away, had ample time for reflection and then came back in company with Mr Roughley obviously with the intention of assaulting Mr Guest. Whatever your motivation might have been, you administered the assault as a form of retribution. Your actions were brutal and completely unacceptable.
At the time this happened, you were 37 years of age. You are now 38. You were certainly old enough to know better. You have children who live with you, including Mr C. You also have a daughter, who is emotionally dependent on you because of the current state of her mental health. The fact that you would act in this way despite your responsibility to her is not to your credit. You have a lengthy criminal history. It includes numerous traffic offences, which, at the very least, indicate a general disregard for the law. It also includes a history of violent offending. In 2003, you were convicted of common assault. In 2010, you were convicted of obstructing and resisting a police officer. In 2017, you were sentenced to partially suspended sentences of imprisonment for various offences, which included two counts of common assault. As I have already discussed, on 18 March 2019, you were sentenced to cumulative terms of imprisonment for many offences, one of which was the prior assault on Mr Guest. According to the description in the record of prior offences provided to me, this assault included chasing and hitting him to the head and upper body with a baseball bat and punching him to the head several times. It is clear that you must have been released from custody only a short time before you committed the crime with which I am dealing. The fact that you would commit a crime like this, after deliberation, suggests that you learned nothing from the prior sentence. I am satisfied that personal deterrence is an important sentencing factor.
I am told by your counsel that you have had a difficult life and have yourself been the victim of severe family violence and sexual assault. You have been seeking some assistance in respect of issues of anger management. Your counsel claims that you now have some insight into your offending, and have been careful about not engaging in the contextual conflict any further. I accept your early plea of guilty as some evidence to support this claim.
However, the objectively serious nature of your criminal conduct, including the aggravating features I have already discussed, requires an emphasis on denunciation and general deterrence. Further, there is the need for personal deterrence as already discussed. The only possible sentence is a substantial sentence of imprisonment. Having regard to your plea of guilty, and despite the fact that the prior sentence had little deterrent effect upon you, I will provide for your early release on parole. The main point of this provision is to allow the Parole Board an opportunity to exercise supervision of you after your release.
Ms Whiley, you are convicted of the crime of assault and sentenced to 12 months’ imprisonment, which will be served from 19 June 2020. I order that you not be eligible for release until you have served seven months of that sentence.
Mr Roughley, you were 22 years of age at the time of commission of this crime. Your criminal history is not pristine, but largely consists of traffic offences. Approximately three months before you committed this crime, you had given an undertaking to the Magistrates Court to be of good behaviour, as a result of your plea of guilty to a charge of destroy property. You were still subject to that promise when you committed this crime. Clearly, that promise did not mean very much to you. I am told that you are currently in employment and have a young child. You work long hours as a farm hand and have aspirations to become involved in the agricultural industry. It is submitted that you also regret your conduct, and you did plead guilty at an early time.
In your case, it is true that you did not arrive on the scene until shortly before you committed the crime. You had not been part of the prior events. You had been told that Mr Guest had struck your friend Mr C with the car. I do not think that this provides any significant mitigation. It is clear that that you decided to take the law into your own hands and seek retribution for that event. This is an aggravating factor. The crime is also aggravated because it was committed in company and in public, and the violence used was brutal. The crime deserves the imposition of a sentence of imprisonment. However, having regard to your age and lack of relevant prior convictions, I consider it appropriate to impose a wholly suspended sentence, although that suspension will be on conditions which will include supervision.
You are convicted of the crime of assault and sentenced to six months’ imprisonment. The whole of that period will be suspended for a period of 18 months on that you are not to commit another offence punishable by imprisonment. In addition I make a community corrections order. You must comply with the order for a period of 30 months, and that period shall commence today (2 July 2020). The core conditions of the order require you to report to a probation officer, and you shall do so at the office of Community Corrections in Burnie within three clear days of today.
In addition to the core conditions the order shall also include the following special conditions:
(a) you must, during the operational period of the order, firstly, attend educational and other programs as directed by the court or a probation officer;
(b) submit to the supervision of a probation officer as required by the probation officer;
(c) submit to testing for drug use as directed by a probation officer;
(d) undergo assessment and treatment for alcohol dependency as directed by a probation officer;
(e) submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer;
(f) you must not, in any way, directly or indirectly, communicate with or be in the presence of Kurt Charles Guest or his stepdaughter.