STATE OF TASMANIA v JAY DAVID BLAZELY and

MITCHELL CLAY DOWLING

COMMENTS ON PASSING SENTENCE

16 JULY 2015
PEARCE J

Jay Blazely and Mitchell Dowling were found guilty by a jury of crimes committed on 17
July 2013 at the Mowbray Hotel. Mr Blazely was found guilty of one count of committing an
unlawful act intended to cause grievous bodily harm and two counts of assault. Mr Dowling
was found guilty of one count of committing an unlawful act intended to cause grievous
bodily harm and one count of assault. To the extent that the facts do not emerge from the
verdicts it is my responsibility to make findings of fact for sentencing purposes. For the
purpose of determining the factual issues between the Crown and the defendants, I may only
make findings adverse to a defendant if satisfied beyond reasonable doubt they have been
proved and I may only make findings of fact in favour of a defendant if they are proved on the
balance of probabilities.
Mr Blazely and Mr Dowling are brothers. They arrived at the Mowbray Hotel at about 5 pm
on the day of the crimes after having been drinking beer steadily at a different hotel for most
of the afternoon. At the hotel they met Joshua Looney. With Mr Looney they continued to
drink and play 8-ball. Later, Mr Dowling invited his friend, Rebecca Jackson, to the hotel.
Also present at the hotel at the relevant time were Tony Brown, brothers, Derryn Thomas and
Jesse Thomas, and their father, Grant Thomas. Those men were also consuming alcohol. They
were in a separate group with two other men, one a friend of Mr Brown and the other a friend
of Derryn and Jesse Thomas. I am satisfied that for a period of time leading up to 8pm, Mr
Brown made persistent and unjustified derogatory remarks directed at Mr Looney, some of
which involved threats of violence. One such remark involved the possible use of an 8-ball or
cue as a weapon. The remarks were not all made in the hearing of Mr Blazely or Mr Dowling
but each were told about them by others, including Mr Looney and Miss Jackson. I accept Mr
Looney's evidence that he was sufficiently apprehensive and afraid to complain to the
defendants and the duty manager of the hotel, Tyson Montgomery. Mr Brown's unruly
behaviour and taunts continued. He was warned by Mr Montgomery to desist. He did not do
so. I am also satisfied that for part of this time the defendants heard Grant Thomas make
remarks which could reasonably be understood as inflammatory, whether they were intended
that way or not, although not threats of violence. Both defendants were suspicious about the
complicity of others in the group, partly because of what they saw and heard and partly from
what Miss Jackson had said about some unsavoury behaviour she had observed outside as she
arrived at the hotel. At about 8pm Mr Looney was playing 8-ball with the defendants. The
defendants and Miss Jackson were at a bar table to one side to the 8-ball table and the other
group was at the opposite side. When Mr Looney came near to where Mr Brown was
standing, Mr Brown leaned towards Mr Looney and made another remark. I am satisfied it
was derogatory but I cannot determine what was said. Having already warned Mr Brown, Mr
Montgomery, the manager, came from behind the bar to confront Mr Brown and to ask him to
leave. At about the same time both defendants walked across the room from where they had
been standing to confront Mr Brown and the others. Mr Blazely pushed at someone. Mr
Montgomery attempted to shepherd both defendants away. Mr Dowling walked towards the
door, gesturing as he did so an invitation to one of the other group to fight outside, an
invitation which was not responded to. At about the same time, Mr Blazely, as Mr
Montgomery's attention was momentarily diverted, stepped forward and struck out at Mr
Brown. That action is not the subject of any charge. It caused Mr Brown to step back and to
the side and stand with his back to the bar. Despite Mr Montgomery's attempt to restrain him,
Mr Blazely again stepped towards Mr Brown and, with his right fist, punched Mr Brown hard

to the left side of his head. That punch constitutes the unlawful assault of Mr Brown. It caused
Mr Brown to stagger to his right and away from Mr Blazely. Mr Blazely walked after him and
again used his right fist to punch Mr Brown hard to the face. This blow caused Mr Brown to
immediately fall sideways to the floor. It follows from the verdict that the jury was satisfied
beyond reasonable doubt that this second blow was inflicted with the intention of causing
grievous bodily harm to Mr Brown. I sentence Mr Blazely on the basis that his intent was to
inflict injury likely to cause serious injury to Mr Brown's health. It also follows from the jury
verdict that it rejected Mr Blazely's claim that the blows he struck to Mr Brown were justified
by defence of himself or Mr Looney. I find that at the time that the blows were struck Mr
Blazely did not hold a genuine and honest belief that force was necessary to defend himself or
Mr Looney. Acknowledging the dangers of drawing inferences from visual recordings without
sound, it is obvious to me that at the time of the two blows, which are the subject of the
findings of guilt, Mr Brown posed no threat to Mr Blazely or anyone else. At that point Mr
Blazely was the aggressor. He resisted Mr Montgomery's efforts to remove him from the
situation. Mr Brown made no move towards him and, at the time of the second punch, Mr
Brown was moving away.
After having initially walked away from the group, Mr Dowling ran back towards them when
the physical confrontation started. He engaged physically with Jesse Thomas, Derryn Thomas
and Grant Thomas. The jury found him guilty of assaulting Derryn Thomas. It acquitted him
of assaulting Jesse and Grant Thomas. I find that Mr Dowling assaulted Derryn Thomas by
punching him three or four times. I find that at least one of those punches was to Derryn
Thomas's head.
After having punched Mr Brown for the second time, Mr Blazely entered the fray with the
members of the Thomas family. The jury found him guilty of assaulting Grant Thomas. It
acquitted him of assaulting Derryn Thomas and Jesse Thomas. In the course of the altercation
Grant Thomas grabbed Mr Dowling from behind in an attempt to pull him away from Derryn
Thomas. It appears that in the course of him doing so he was struck by Mr Dowling's elbow.
Mr Thomas went to the ground. While on the ground Mr Blazely stood over him and
unlawfully assaulted him by punching him three times. Mr Blazely admitted the punches. The
jury rejected his claim that the punches were justified by self-defence because he believed that
Mr Thomas may get up from the floor and pose a continuing threat to him or another. I am
satisfied that at the time he inflicted those blows Mr Blazely had no genuine and honest belief
that force was necessary to defend himself or another. Where those punches struck Mr
Thomas is relevant to sentence. I will deal with that issue later in these remarks.
While the confrontation between the defendants and the members of the Thomas family was
in progress Mr Brown lay on the floor beside the 8-ball table. He was there for about 30
seconds before he stood up. As the confrontation between the others subsided, Mr Brown
staggered backwards, unsteadily, towards the bar. Mr Montgomery moved to support him. He
guided Mr Brown so that he was standing with his back against the bar. With his arms around
Mr Brown's shoulders, Mr Montgomery held him in that position. I accept Mr Montgomery's
evidence that Mr Brown appeared dazed. Mr Montgomery attempted to persuade Mr Brown
to sit down on the floor so he would not fall. By then Mr Dowling and Mr Blazely had walked
away. However Mr Dowling walked back towards Mr Brown and, with Mr Brown still in the
position I have described and being supported by Mr Montgomery, inflicted a punch to his
face. Mr Brown immediately slumped to the ground where he, thereafter, lay motionless. Mr
Dowling admitted the punch. The jury rejected his claim that the punch was justified by selfdefence. I find that at the time that this blow was struck Mr Dowling did not hold a genuine

and honest belief that force was necessary to defend himself or anyone else. At the time of
this punch Mr Brown was effectively defenceless and no threat to anyone.
The consequence, or absence of consequence, of a crime is an important sentencing
consideration. As a result of the injuries he received, Mr Brown died. I will return to the issue
of his death shortly. It is not contended that Derryn Thomas suffered any serious or lasting
injury as a result of being punched by Mr Dowling. He gave no evidence of having suffered
an injury. He claimed little memory of what occurred to him beyond being punched, although
he did remember something of what happened to his father. I was given a victim impact
statement asserting ongoing psychological symptoms. The statement refers principally to Mr
Brown's death. I am not satisfied that any of the consequences he claims result from the
assault committed against him.
After being punched by Mr Blazely, Grant Thomas suffered an epileptic fit. He also suffered
bruising in and around his eye. Investigations at the hospital, including a CT scan, excluded
any other injury. He was kept in hospital overnight. He was later cleared of any injury to his
vision. He presented to the Mersey Community Hospital in Latrobe on 19 July 2013. He was
discovered to have cellulitis and a blood clot in his upper right arm arising from an
intravenous cannula used at the LGH. He was admitted for a couple of days for treatment. His
victim impact statement dated 29 June 2015 asserts that he suffered headaches for some days,
but in his evidence he claimed no memory of what occurred in and after the assault. He has
recovered from his physical injuries. His victim impact statement refers to other ongoing
symptoms including depression and ongoing seizures. To constitute an aggravating factor in
sentencing I must be satisfied beyond reasonable doubt that these conditions are caused by the
assault of which Mr Blazely was found guilty. I am not so satisfied. There is no medical
evidence that Mr Blazely's assault caused these effects. In the course of the trial, the medical
administration registrar from the Launceston General Hospital, Dr Scollard, gave evidence
that the seizures suffered by Mr Thomas were almost certainly caused by trauma to his head. I
accept that evidence. However it is reasonably possible that Mr Thomas suffered trauma to his
head independently of Mr Blazely's criminal conduct, for example when he fell to the floor or
when his head was struck by Mr Dowling's elbow. Further, there is no direct evidence that Mr
Blazely punched Mr Thomas to the head. He claimed to have punched his upper arm or
shoulder. I give his evidence little weight but I cannot find to the contrary unless I am
satisfied beyond reasonable doubt that the Crown has proved that Mr Thomas was punched to
the head. The Crown submits that I should draw that inference from the bruises to his eye and
the seizure. Again, I cannot exclude as a reasonable possibility that Mr Thomas suffered those
injuries as a result of acts independent of Mr Blazely's criminal conduct, for example other
uncharged, unproved or non-criminal conduct by either defendant. The same applies to the
other symptoms of which Mr Thomas complains. Even if they exist, they are also explained
by other serious pre-existing conditions and the psychological impact of Mr Brown's death for
which, as I am about to explain, the defendants are not criminally responsible. Conversely, I
am satisfied that, although there may have been other contributing causes, Mr Thomas's
admission to hospital both in Launceston and Latrobe, and the complication he suffered with
his arm, are sufficiently related to the criminal conduct of Mr Blazely so as to be caused by
that conduct.
The Crown asserted, without dispute, that in the opinion of the forensic pathologist, Dr
Ritchey, Mr Brown died from severe internal bleeding at the base of his brain resulting from
laceration of the vertebral artery. In Dr Ritchey's opinion either the punch or punches inflicted
by Mr Blazely or the punch inflicted by Mr Dowling, or a combined effect, could have caused

death. Had the Crown been able to prove that the criminal conduct of one or other of the
defendants was a direct and immediate cause of the injury resulting in Mr Brown's death, then
one or both would have been charged with a crime of homicide and, if found guilty, been
sentenced for it. Neither was charged with any such crime. They are not to be sentenced for a
crime of which they have not been found guilty. I am very mindful of the devastating effect of
Mr Brown's death on his family. I received moving victim impact statements from his partner,
children, parents and siblings. However, for the reasons I have attempted to explain the
defendants are to be sentenced without regard to Mr Brown's death. Moreover, at trial the
Crown disclaimed any assertion that, as a result of the criminal conduct, Mr Brown suffered
grievous bodily harm. Thus, the defendants are to be sentenced on the basis that the crimes
committed by them against Mr Brown caused bodily injury falling short of grievous bodily
harm. There is little external evidence of injury. Both punches inflicted by Mr Blazely to Mr
Brown's head were of considerable force, especially the second one. Mr Brown's state of
consciousness was obviously reduced. That could only have resulted from some type of
trauma to or affecting his brain. The punch inflicted by Mr Dowling was again of considerable
force. I am in left in no doubt that this punch rendered Mr Brown unconscious. That could
only have occurred from some type of trauma to or affecting his brain. People frequently
recover completely from unconsciousness arising from brain trauma. However, the substantial
risk of permanent serious injury or death caused by blows to the head imparted with the force
and intent used here by both defendants is well known and is relevant to sentence.
In isolation, the assaults committed by the defendants would not require sentences of
imprisonment for either defendant. The position is different for the crimes under s 170 of the
Code. It is regarded as a grave crime, generally more serious that the crime of causing
grievous bodily harm under s 172 of the Code. That is so because it requires proof of a
specific intent to do grievous bodily harm. Both defendants are to be sentenced on the basis
that they intended to inflict more harm than can be proved they caused. Decisions of the Court
of Criminal Appeal in this State over the last few years have affirmed that a crime under this
section "ordinarily" carries a penalty within the range of three to seven years. I accept the
submission that the crimes in this case lack some of the characteristics which commonly
accompany crimes against s 170 and which were present in one way or another in the appeals
to which I have referred. Here, each crime involved a single blow. There was no sustained or
prolonged attack. No weapon was used. There was no premeditation or planning. The
defendants did not go to the hotel looking for trouble and were not expecting it. Only injuries
falling short of grievous bodily harm, and no permanent effects, have been proved to the
required criminal standard. The conduct was not without some provocation. I am satisfied that
both defendants reacted to Mr Brown's persistent, annoying and inflammatory conduct, but
not in self-defence. Both, at least in part because of the effect of the alcohol they had
consumed, became angry, lost self-control and acted in the heat of their passion. In their
evidence both denied that this was so, but I do not believe them. The conduct of Mr Brown
and others, in the circumstances in which the defendants found themselves, goes some way to
explaining the defendants' actions. I take it into account, but it provides little mitigation. That
is so for two main reasons. Firstly, responsible members of the community are expected to not
lose self-control in such circumstances, and certainly not by resort to such violence. Secondly,
the acts were unjustified and unnecessary. The defendants intervened and acted when it was
not their place to do so. I entirely reject the criticism made of Mr Montgomery in the course
of the trial, as I reject the contention also made that he tailored his evidence to avoid the
suggestion that he was somehow responsible. I find him to be an honest and reliable witness.
The claim that the manner in which he had dealt, and was dealing, with the events in the hotel
somehow justified the defendants taking matters into their own hands by resort to violence, is

based largely on subjective hindsight and is an unmeritorious attempt to rationalise their

criminal acts. It undermines the defendants' claims to the type of contrition a court looks for.
Mr Blazely is now 40. He has no relevant prior convictions. He is has a good industrial record
although he currently performs the home parenting role for three children aged between 7 and
16 while his partner works in paid employment. Mr Dowling is 44. He has care of a teenage
son and is in a relationship. He has a poor record of prior offending in Tasmania and in
Queensland over a long period, contributed to by abuse of alcohol, but it is mostly for
dishonesty and not for violence. He has been to prison before. Since these crimes he has taken
steps to address his abuse of alcohol, has obtained casual employment as a gardener for which
he is well regarded, and become involved in his local church. Neither defendant is entitled to
the mitigation a plea of guilty usually attracts. The unjustified punching of another person to
the head is an appalling act, particularly when it is done with such force and with the intention
of causing grievous bodily harm. Alcohol-fuelled violence, especially in licensed premises, is
a matter of particular concern for the community and the courts. Such conduct deserves
punishment. The sentence should deter not only the defendants, but others who may be
minded to act in this way.
Both defendants have already spent a considerable time in custody, Mr Dowling 268 days and
Mr Blazely 267 days. Those periods must now be taken into account. I regard Mr Dowling's
crime under s 170 as marginally more serious and he is not entitled to the mitigation of an
unblemished record. For that reason he will receive a slightly longer sentence.
Jay David Blazely, you are convicted of assault on counts 2, and 7 of the indictment and of
unlawful act intended to cause grievous bodily harm on count 3. You will pay the victims of
crime compensation levy of $150 within 28 days. You are sentenced to imprisonment for two
years and three months backdated to commence on 13 October 2014. I order that you not be
eligible for parole until you have served half of that sentence.
Mitchell Clay Dowling, you are convicted on counts 4 and 9 of the indictment. You will pay
the victims of crime compensation levy of $100 within 28 days. You are sentenced to
imprisonment for two years and six months backdated to commence on 12 October 2014. I
order that you not be eligible for parole until you have served half of that sentence.