STATE OF TASMANIA v SETH WILLIAM TOWNSEND 10 OCTOBER 2024
COMMENTS ON PASSING SENTENCE JAGO J
I have before me an application for breach of two suspended sentences, 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 all of the periods of suspended imprisonment.
On 18 August 2023, I sentenced the respondent in respect to three crimes across two indictments. The first indictment contained two counts of arson and the second contained one count of Criminal Code assault. In respect to the crimes of arson, I sentenced the respondent to 18 months’ imprisonment, with the last 12 months of that period suspended for two years on condition that he not commit another offence punishable by imprisonment, and that he complies with a probation order.
In respect to the crime of assault, I sentenced him to imprisonment for a period of three months, wholly suspended on condition that he commit no offence punishable by imprisonment for a period of two years.
The facts of the respective crimes are set out in my Comments on Passing Sentence of 18 August 2023 and I do not stay to repeat them. It is sufficient to note that the two crimes of arson related to the same residence in Devonport. The first act of arson occurred on 28 September 2022. The respondent gained access to the residence through a broken window and set fire to a towel that was being used as a curtain. The first fire caused extensive damage to a bedroom area. The value of the damage was approximately $40,000, including contents.
The respondent returned to the same house on 2 October 2022. This time he was in the company of another person. He and his accomplice entered the property, piled up numerous flammable items and set fire to the residence. The fire destroyed one half of the house and caused damage to other areas. The value of the damage was approximately $450,000, including contents.
The assault involved the respondent punching a friend of his, once to the face, following an argument. It was a hard punch and resulted in the complainant suffering a complete avulsion of three teeth and full thickness lacerations to his lips.
The respondent was 18 years of age when he committed the crimes of arson, and 19 when he committed the crime of assault. He will be 21 in December of this year. At the time I sentenced the respondent he had a lengthy history of criminal offending as a youth, including many offences of dishonesty, offences for destroying and injuring property, offences contrary to the Bail Act, the Misuse of Drugs Act and offences against police. He also had prior convictions for unlawfully setting fire to vegetation, unlawfully setting fire to property and common assault.
In the lead up to my sentence of 18 August 2023, the respondent had spent time in custody. It was the respondent’s first experience in an adult prison, and I was told it was a salutary experience for him. I was also told that the respondent was committed to making change and would benefit from a period of community supervision.
At the time I sentenced the respondent, I determined, particularly given his young age, that it was appropriate to place emphasis upon his rehabilitation. I was also of the view that with structured supervision and support from Community Corrections, the respondent may be able to rehabilitate himself.
Unfortunately, since the imposition of my sentencing orders, the respondent has re-offended in a number of ways. On 28 August 2024, the respondent was convicted in the Devonport Magistrates Court of five counts of stealing, three counts of destroy property, four counts of injure property, 12 counts of contravene conditions of a notice and/or breach of bail conditions, five counts of trespass, one count of resist police and one count of commit a nuisance. These offences occurred between March and May 2024, so the respondent was re-offending within seven months of the period of suspended imprisonment being imposed. For the breaching offences, the respondent was sentenced to four months’ imprisonment. This sentence was imposed cumulatively to an activated term of suspended sentence following an unrelated application for breach of same. The result is that the respondent is required to serve 10 months’ imprisonment as from 11 June 2024. The Magistrate ordered the respondent be eligible for parole after serving half of that term but given the operation of s 70 of the Corrections Act, he will not be eligible for parole until he has served six months of that sentence. He will therefore be eligible for parole in December 2024.
When the respondent committed the offences between March and May 2024, he must have understood that he had three separate periods of suspended imprisonment hanging over his head; the two imposed by me and a period of six months suspended imprisonment imposed by the Magistrates Court in November 2023. Even being subject to the activation of a substantial period of suspended imprisonment was insufficient motivation for the respondent to engage in rehabilitative endeavours. The respondent has also breached the terms of the suspended sentence imposed in respect to the crimes of arson by failing to comply with the Community Corrections Order. The respondent was required to attend an appointment with his probation officer on 16 May 2024. He was unwell on that day and the appointment was rescheduled until 20 May 2024. The respondent failed to attend that appointment. On 28 May 2024, he was given a direction to attend a further appointment on 4 June 2024. Again, the respondent failed to attend that appointment.
Not only has the respondent demonstrated an on-going attitude of disobedience towards the law by the commission of the various offences, but he has not made any effort, in my assessment, to comply with the terms of the Community Correction order. That suggests to me the respondent does not have the desire and is not sufficiently committed to rehabilitating himself. There are only so many opportunities a Court can offer to defendant before a stern response is warranted.
The respondent’s counsel submits that I should not activate all of the suspended sentence because it would be unjust to do so. His counsel submits that given his young age, he should be provided with yet another opportunity to rehabilitate and that activation of the entirety of the two suspended sentences would be a disproportionate response to the gravity of the offending. Counsel also submits that the nature of the breaching offences is quite different to the matters for which the suspended sentences were imposed.
Whilst I accept there are some differences in terms of the nature of the offending, much of the offending, yet again, involves wanton violence being inflicted upon the property of others by the respondent. The breaching offences commenced within a short period of time after the imposition of the suspended sentences. The breaching offences demonstrate, in my view, blatant criminality and a continuation of the respondent’s obvious disregard for the law.
The respondent has been committing crime since he was a youth. He has been given many opportunities to reform by way of orders imposed in the Youth Justice Court. He has been given the benefit of suspended sentences previously, but has breached them. The respondent has demonstrated a great resistance to becoming a law abiding individual. I acknowledge his still young age, but in my view there is nothing before me to suggest that he has embraced, in any meaningful way, the concept of becoming compliant with the law.
On an application of this nature, the broad question is whether the suspended sentence is having its desired effect in terms of rehabilitation. It could not be sensibly argued, in the respondent’s case, that it is. There is nothing before me to suggest that any rehabilitation the respondent has endeavoured to embark upon has been successful in terms of changing his attitude. The respondent has refused to comply with the Community Corrections order, which was imposed upon him in the hope that it would provide him with the support and guidance he obviously needs. His unwillingness to be compliant with that order really highlights, in my view, his poor attitude.
If a defendant wastes an opportunity offered by the Court by re-offending, then as a general rule, a suspended sentence should be activated. In my view, if I do not, at this point, activate the periods of suspended imprisonment, it would result in the undermining of the integrity of the system of suspended sentences and adversely impact the extent to which they may deter future offenders.
That said, I acknowledge that the respondent is currently serving a relatively substantial period of imprisonment and I should be minded to totality. I intend to activate the suspended sentences from today’s date, with the effect that they will run concurrently with the sentences he is currently serving from the Magistrates Court.
The application is granted. I order the 12-month period of imprisonment imposed on 18 August 2023, in respect to Indictment number 97/2023, be activated and that the respondent be required to serve it, commencing today. I order the respondent be eligible for parole upon serving one-half of that period of imprisonment. I order the three-month period of imprisonment imposed on 18 August 2023, in respect to indictment 187/2023, also be activated and the respondent be required to serve it. That period of imprisonment will also commence today, so will be served concurrently with the other period of imprisonment just activated.