R v Kevin David Johnson

[2007] NSWDC 211

CITATION:	R v Kevin David Johnson [2007] NSWDC 211
HEARING DATE(S):	27-28 August 2007
JUDGMENT DATE:	3 September 2007
EX TEMPORE JUDGMENT DATE:	30 January 2008
JURISDICTION:	Appellate Jurisdiction
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Severity Appeal upheld - conviction confirmed - AOABH quash NPP imposed by Learned Magistrate - In lieu NPP 12 months to date from 18 January 2007 and expire 17 January 2008 - balance of term for AOABH to expire 17 January 2009 - Order release of appellant 17 January 2008 - parole conditions set.; Severity appeals in respect of Resist Arrest and intimidate police (x2) dismissed.
CATCHWORDS:	Criminal Law - Severity appeal from Local Court - Broken Hill - Domestic Violence - AOABH - indigenous offender - impact of childhood domestic violence upon offender's propensity for violence -
PARTIES:	Kevin David Johnson - Appellant Regina - Respondent
FILE NUMBER(S):	07/62/0255
SOLICITORS:	Mr Kerkyasharian - Appellant - Aboriginal Legal Service M/s Swift - Respondent - ODPP

JUDGMENT

1 HIS HONOUR: Kevin David Johnson presents as a case of history repeating itself. I suspect that Mr Johnson is the only one present in court who is having difficulty seeing that fact.

2 Three years after his father died, his mother took up with a new partner. That was 20 years ago, when he was six years old. The new partner flogged his mother in brutal episodes of domestic violence. She sustained broken ribs and broken bones in her hand as a consequence of this man's cruelty and brutality. Listening to him give evidence no one could doubt his sense of anger and grievance at this man because of the wrong way the monster treated his mother.

3 At some point the violence towards his mother resulted in him, that is Kevin Johnson, being sent away. He had done nothing wrong, yet he and his mother were the ones who paid the price for this man's violence.

4 He told me he is still angry about being sent away from his mother. She sent him to his grandmother where he now lives (when he is not in gaol) with his eight year old sister.

5 He, now, is acting out. Sending him away may have given the wrong message, because to a young boy he saw a violent man win, while he lost. He saw the wrong person sent packing from the mother's house.

6 Domestic violence usually has at least four ingredients: Alcohol; anger; an inability to communicate feelings to a person of importance, and uncontrollable frustration at that inability. It is the uncontrollable frustration that usually is the display of violence.

7 In the 20 years that have passed, Kevin Johnson has been before the courts on many occasions for offences of domestic violence.

8 His teacher, no doubt, was in part the violent man who belted his mother. Frankly he, Kevin Johnson, just does not get it. Today's women are less prepared to tolerate physical abuse. Fortunately, more and more victims are coming forward, understanding they too have a responsibility to fight domestic violence, and they can only do so by reporting it to hospitals, social welfare workers, the police and vacating premises where domestic violence is occurring.

9 This appellant appeals against the severity of sentences imposed upon him as a consequence of a violent assault upon his partner of two months and his inappropriate responses to police investigating and seeking to arrest him.

10 His criminal conduct on the night and morning of the 17/18 January put him in serious trouble. The facts of the offence are worth noting.

11 His evidence before me is that he was drinking that morning with four of his mates. They consumed two cartons each containing 30 cans of beer among themselves. His estimate is that he consumed 30 of those cans. There was also a cask of moselle or casks of moselle present as well.

12 During the afternoon of 17 January, 2007, Sheena Dutton was visiting him at his house in Woore Street Wilcannia. An argument occurred and she left Woore street to attend the Mission in Wilcannia to socialise with friends. He continued on drinking. About midnight on 18 January Ms Dutton was at Warreli Avenue in the Mission. The appellant was dropped off in a motor vehicle and that vehicle left.

13 One can only infer from the fact that he does not live in the Mission and the vehicle left that his sole reason for being there was in pursuit of Ms Dutton. He approached her. There was a short conversation. During that conversation she was heard to say "No! No! No! I don't want you". She began to run in an attempt to get away from him. She ran around a truck parked on the street and was chased by him. He was becoming extremely aggressive. She ran into the front yard of a home to escape him.

14 It was at this time that she was punched and forced to the ground. She was continually punched to her head and body. She was in pain and extremely frightened of the appellant. The punching, bruising and pain would be sufficient, on their own to constitute the offence of assault occasioning actual bodily harm.

16 During the assault he grabbed hold of her hair which was tied in a ponytail. He banged her head against the front wall of a house with substantial force a number of times. Again, that resulted in pain. He then armed himself with the frame of a chair striking her to the head and body.

16 What is to be noted about the three attacks is the focus upon the head. The skull to the head is very thin. Pulling it back and forth, if done severely enough, will cause brain damage. In other words, this victim was at risk of traumatic brain injury. That could have life long consequences. Boxers are people who often suffer traumatic brain injury simply because of the number of times that their head has been knocked back on its axis. There is no reason to think that women in the Aboriginal community are more resilient than boxers in a ring.

17 The fight was of such a nature that witnesses and those about attempted to stop it. Someone took the chair and attempted to remove the appellant physically from the area. Meanwhile Ms Dutton ran away. The appellant gave chase. He caught up with her; pushed her into a side fence as she attempted to escape to her neighbour's house. Eventually she made it inside, where she sought refuge.

18 The police were called. When police arrived they saw her crying and holding her head in her hands. They noticed bruising, swelling and redness all over her face. She had blood coming from her nose. She was in pain. An assault of that ferocity is the very assault likely to cause serious injury.

19 She was taken by police to the Wilcannia Police Station with a view that she would make a statement. As they were heading there, the police noted the appellant running down Reed Street, turning into Cleveland Street and then into Reed Lane. The police stopped the vehicle and sought to arrest him. He was told that he was under arrest and he was not to move. He immediately put his fists up in a fighting stance and yelled abuse: “Come on cunts touch me and I will kill you." The appellant advanced towards Senior Constable Hall. Senior Constable Hall was a female. She responded with a burst of capsicum spray. He commenced throwing punches, yelling further abuse at her including: “Fuck you cunt." Constable Wallace was seeking to assist. All the parties fell to the ground. My understanding is that Constable Wallace is also a female police officer. Only one male involved here.

20 The appellant was on the ground kicking and tucking his arms under his chest to avoid being handcuffed. He was told on numerous occasions he was under arrest and to stop resisting. He failed to comply with any of those directions given to him. Those are the facts that constitute the resist arrest charge.

21 Eventually he was handcuffed and placed in the rear of the police vehicle. As he was being taken to Wilcannia Police Station he yelled at Constable Hall - remember she is female:

“You fuckin dog cunts. I'll get out of here and me and my brothers will fuck you hard, cunts. You listening you big white cunt. I will find you. Ask anyone. I find people cunts, and you are on my list. You live at the Barracks in Waugh street. You're fucking mine to get."

He was introduced by Senior Constable Hall to the Custody Manager. He said to her

“I will find you and kill you, you lesbian cock sucking cunts. When I get out of here I will cut your throat.”

Senior Constable Hall left the charge room and then Constable Jones, the Custody Manager, took over. He said:

“I'll wait until you're off duty and find out where you live. I'll stab you and I'll get my blokes to kill you"."

22 As the police are required to do, they contacted the Aboriginal Legal Services and advised them that the appellant was in custody.

23 So far as the threats made against Senior Constable Hall, she has indicated that she was intimidated by the graphic nature of the threats, insinuating as they did a potential sexual assault upon her and making reference to where she lived. She was concerned that the accused, who has strong community ties, was capable of carrying out the threats. His own home is a short distance from where she lived.

24 Constable Jones also was intimidated by the threats of personal harm made against him and is concerned that others might be incited to carry out those threats.

25 Mr Johnson says in his evidence that the threats were really the alcohol talking and he only intended that they should be expressions, as they were, of his anger and he had no intent of carrying them out. Of course, that intention was not conveyed to the victims, the Police Station, or generally. But at least it is now public.

26 The appellant was before the Local Court on 24 May last, here in Broken Hill. He was sentenced for the assault occasioning actual bodily harm against his partner to two years imprisonment with an 18 month non-parole period to date from 18 January.

27 In respect of his resisting police he was sentenced to three months. In respect of the two charges of intimidate police he was also sentenced to six months. All of those sentences were concurrent with the initial sentence.

28 Indeed, the sentences for resist police and intimidate named Police Officers have now been served. Although the appeals were not formally abandoned, nothing was put to me to seek to do anything about those sentences and I do not intend to.

29 Mr Kerkyasharian, who appears for the appellant, did however seek a reduction in the non-parole period, although he conceded that the two years imprisonment as the head sentence was an appropriate one. That concession, it appears to me, is well founded.

30 When I look at the appellant's record I can see in it that he was before the Children’s Court firstly in 1996 for offences demonstrating dishonesty, lack of respect for people's property and break enter and steal, malicious damage, attempt to steal motor vehicle, break and enter with intent, stealing from dwellings, larceny.

31 His first offence of assault occasioning actual bodily harm occurs whilst still a child in 1998. There are drunken offences such as: Use offensive language; intimidate police, bail -- refused to comply with direction. A second offence of assault occasioning actual bodily harm occurs in 1999. Continuation of intimidating police. There is an offence of drive with medium range PCA among other offences in 2001. Again, behaving in an offensive manner near a public school and occasioning actual bodily harm, 1992 - on five occasions - maybe on only two occasions, it is difficult to tell. In respect of occasioning actual bodily harm in 2002 on three counts. There is a contravene domestic violence order in 2003 and two common assaults 2003. Another contravene domestic violence order in 2003. More common assaults 2003, 2004. A further assault occasioning actual bodily harm in 2004 and another in 2005, and then these offences I am dealing with on appeal.

32 The Probation and Parole report also paints a relatively bleak history and pain taking pictures of rehabilitation prospects. In terms of prior contact with Probation and Parole, the report notes that he has a poor history in relation to meeting his obligations. This is demonstrated, in November of 2002, where he appeared to need warrants to place him before the court in 2002; warrants in respect of community service order issued, also in 2002; breach of community service order in 2003; breach of s12 bond in 2003; convicted of offences whilst on bond in 2004. Although released in 2005 to attend alcohol and other drug counselling and anger management, it would appear that he breached parole for failure to report.

33 His upbringing, again, demonstrates history repeating itself because he was surrounded in alcohol abuse and violence.

34 He continues to reside with his grandmother and, as I said, his eight year old sister. He accepts some responsibility for looking after her. That is a matter that goes to his credit and ought to be acknowledged.

35 He has had a number of children within the community to a number of different women in Broken Hill and Wilcannia. There is no report there of accepting any responsibility for them. This is, however, an observation of the history of physical abuse within those relationships and some of that may well be reflected in his criminal antecedents.

36 There is concern about his attitude to this offence. Probation and Parole report that he has failed to take responsibility for his offending upon release, blaming the alcohol. He has minimized minimising his assault on his victim again in evidence, by blaming the alcohol, and saying he is only in trouble because she said she would never go through with the charges, and that he only knows how to resolve issues by saying: “I have only ever known to deal with things with my fists.” This reminds of me, of course, about the causes of domestic violence that I earlier referred to, and the immense frustration he must feel in not being able to communicate other than with his fists.

37 The criminal law is a very blunt instrument for dealing with domestic violence. But I suppose when nothing else is about it will have to do. The question is whether Mr Johnson wants the use of the blunt instrument or is prepared to accept responsibility and do something about himself.

38 I have said there are four causes to domestic violence. You have come onto base with the first, that is alcohol. There are three others that you must come to understand. I am going to give you the opportunity to do that. But if you do not you will be in breach of your parole and sent back to custody.

39 It is important that you have an opportunity to rehabilitate in the community. It is important that you be given a chance to try, yourself, to moderate your drinking, or better still to stop it all together if you can. It is important that you have an opportunity to live with a woman and enjoy it and have her enjoy it. It is important that you have an opportunity to have a family life, if you can. Those things can only be done in a community. They cannot be done behind the walls of a gaol.

40 But if you abuse privileges which go with having a family; with having a relationship, then there is only one place for you. At the end of the day, it is important that you understand you must accept responsibility for the way in which you live and you must accept responsibility, as you have on this occasion, for failing; or for criminal conduct that comes about as a result of your failing. I know that you did because you pleaded guilty. So I know that you have accepted responsibility.

41 What I propose to do is to uphold the appeal, to confirm the sentence of two years but to reduce the non-parole period to one of 12 months; to have you released at the conclusion of the non-parole period subject to your complying with Probation and Parole requirements including intensive supervision. For the first three months of your parole there will be a total ban on alcohol. Thereafter you may drink but any drinking that you do that gets you into trouble is your own fault. Do you understand all that?

OFFENDER: Yes.

HIS HONOUR:

42 The formal orders I make are these: The appeal is upheld; the conviction confirmed; the head sentence of two years confirmed but the non-parole period will be reduced to one of 12 months. It will date from 18 January 2007 and expire on 17 January 2008. Pursuant to s51 of the Crimes (Sentencing Procedure) Act, I impose the following parole conditions:

1. That you will accept intensive supervision by Probation and Parole.

2. That for the first three months of your parole that is until 17 April 2008 you will abstain from alcohol and other drugs, save cigarettes.

3. You will submit to random testing for alcohol and drugs, any failure to submit for testing or any dirty testing in that three month period will be deemed a breach of parole and I urge the Parole Board to return you to custody.

4. Any failure to report to Probation and Parole thereafter and any failure to comply with other directions given by Probation and Parole, is to be deemed a breach of your parole and again I urge Probation and Parole to report the breach to the Parole Board.

43 During now and then I would like you to consider those terms and see what you can make of it when you get out. Give it your best shot.

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