Murtagh, Steven Craig v State of Tasmania [TASCCA]

• Jurisdiction: Tasmania
• Court: Court of Criminal Appeal
• Judge: Evans J,Blow J,Wood J
• Judgment Date: 02 June 2011
• Docket Number: 960/2010
• Date: 02 June 2011

[2011] TASCCA 5

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Blow and Wood JJ

960/2010

Murtagh, Steven Craig

and

State of Tasmania

Aust Dig Criminal Law [3521]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate — Crimes committed in prison — Assaulting correctional officer, unlawfully injuring property.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J Blow J Wood J

1 The appellant appeals against the sentence imposed on him upon his plea of guilty to one charge of assault and one charge of unlawfully injuring property. The sentence was two and a half years' imprisonment, cumulative upon any sentence of imprisonment he was currently serving. It was ordered that he not be eligible to apply for parole until he had served two years of that imprisonment. His sole ground of appeal is that the sentence was manifestly excessive.

2 On 13 December 2009, the appellant was an inmate in the medium security section at Risdon Prison. Two correctional officers moved to a group of about six prisoners, which included the appellant, because the group was acting in a way that the officers considered to be suspicious.

3 Correctional officers Craig Graham and Robert Paul approached the group to investigate the behaviour of the inmates. After asking an inmate wearing a raincoat to reveal his identity, that inmate approached Mr Paul and punched him in the face. At this time the appellant launched an assault on Mr Graham, the complainant. He punched the complainant to the side of the face three times. The complainant tried to get away but the appellant continued to punch him. The complainant ultimately went to the ground where he tried to shield his head with his arms and hands. Whilst on the ground the appellant continued to punch the complainant before kicking him to the head and face at least three times. Whilst this was occurring the appellant was seen to be laughing.

4 As the complainant was being attacked by the appellant, another inmate, Dallas Eaves, became involved in the assault. He crouched over the complainant and punched him to the head and face using both fists. During the assault one of the inmates attempted to obtain the complainant's keys.

5 Mr Paul, who had been assaulted by other inmates, used his radio to call for assistance. Other correctional officers arrived and led the complainant from the yard. At this time the appellant and Eaves threatened to assault another correctional officer. The appellant, together with Dallas Eaves and several other inmates, then ran to the tennis court where they began arming themselves with items, including steel poles, tennis racquets and plastic cricket wickets. At this time several of those involved began concealing their faces by wrapping T-shirts and jumpers around their heads, creating makeshift balaclavas. The correctional staff then left the medium security precinct for their own safety. The appellant, still in the company of other inmates, then approached a window in the education building and he removed the grill from it. The window was smashed using one of the items taken from the tennis court. The appellant, along with three other inmates, then entered the building. Whilst inside the building damage was caused to office equipment and six desktop computers, four laptop computers, and two large photocopiers were destroyed. Several small fires were also lit in the building which caused minimal damage. As fire sprinklers were activated the building was also subjected to water damage.

6 During this incident another inmate gained access to a prison radio and made threats about having hostages. He also threatened the safety of staff if they entered the precinct. The tacticalresponse group was called in to resolve the incident. The cost of repairing the education building and replacing the destroyed contents came to $57,033.84. However, there were other flow-on costs amounting to $59,166.79. In total, the cost impact of this incident came to $116,200.63.

7 Mr Graham sustained a fractured eye socket and swelling and bruising to his face. He was taken to the Royal Hobart Hospital where a plate was inserted to repair the fracture. He suffered a high degree of pain. His sight was affected and another operation was required. He continues to suffer from double vision, and he has required psychological counselling. It is possible that he may have a permanent disability...