Swan, Wayne v D.P.P

[2008] NSWDC 139

CITATION:	Swan, Wayne v D.P.P [2008] NSWDC 139
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Granted section 11 bail on conditions
CATCHWORDS:	Criminal Law - Severity Appeal from Local court sentences - 10 matters - domestic violence in indigenous community - deterrence acheived by victims reporting domestic violence - alcohol as contributing factor to violence - nature of injuries - alcohol linked to other offending behaviour - 12 months bail to afford opportunity to demonstrate capacity to rehabilitate - progress reporting to court required.
LEGISLATION CITED:	s11 of the Crimes (Sentencing Procedure) Act 1999
PARTIES:	Wayne Swan Director of Public Prosecutions
FILE NUMBER(S):	2008/00011993
SOLICITORS:	Crown: Mr R Raey Defence: Ms K Biffin

JUDGMENT
1. On seven occasions between 1 March 2008 and 19 July 2008 this appellant committed 11 offences for which the Local Court imposed penalties. One of them was a fine in respect of drive with minimum range PCA on 1 March 2008. The appellant has withdrawn that appeal. The others are all offences for which he received suspended sentences ranging between 20 months on one hand and four months on the other.

2. The appellant appeals against all of those sentences and that leaves now, with the one withdrawn, ten appeals outstanding. Included among the facts before me in respect of one offence is the following:

“In the early hours of Tuesday 6 March police were patrolling the streets around East Moree when they observed a woman well affected by alcohol walking along the streets exhibiting obvious injuries and obvious signs of distress. Police now know this woman to be the victim in this matter. She was in fact the victim of an offence at the hands of her partner. The victim refused to tell police what had happened and how she became injured. She requested police give her a lift to a residence known to police in Moree. Police conveyed her to the requested address. She told police that she would ring them in the morning if she wished to advise police of the incident.”

3. It would appear the assaults against this appellant's partner were so severe and unremitting that she fled her house. Her home is supposed to be of all places in the world the one she should feel most secure and safe in. That she should be driven from it by her male partner who, one he would have thought, should be offering her, as part of the relationship, caring, safety and protection from violence, suggests he is necessarily failing miserably in understanding what is involved in a long term relationship between a man and a woman.

4. The appellant and his partner are both indigenous Australians. Domestic violence is said to be rampant within indigenous communities. One of the surest ways to stamp it out is to report each and every occasion it occurs. Many Aboriginal leaders are calling upon the indigenous community to accept accountability for their way of life, including the level of domestic violence. Many women do not report domestic violence. Why that is so should be explored and faced up to by the victims of domestic violence. It may be a sense of shame or even guilt. It may be because they feel they have contributed to it. It may be because they love their partner and hope it will not happen again. It may be because they cannot bear the thought of loss both emotional and financial to them and their children that imprisonment for domestic violence may cause. All are powerful motives for failing to report but failing to report will only lead to continued perpetration. Certainty of being charged is the greatest deterrent to offending behaviour including domestic violence.

5. Think about the speed camera. Those who know it is there, slow down. They don't wish to be caught speeding. Failure to report is what the perpetrator of domestic violence hopes for, because then he will not be held accountable to the community and to his partner for his offending conduct.

6. There are other ways partners can lessen domestic violence against them. Alcohol consumption is recognised as the silent but powerful contributor to domestic violence. Drunken, disinhibited, argumentive belittling and other aggressive behaviour are all close companions of alcohol waiting to be released from the human persona by a few drinks.

7. Reporting domestic violence takes courage. I acknowledge the courage of women who refuse to put up with domestic violence, including on this occasion this offender's partner. It together with reduction of alcohol intake are two giant steps to reducing domestic violence within the Aboriginal community.

8. Can I come back to this, of the first offences, that the appellant is appealing from. The sentence for this offence was 20 months suspended conditional upon him entering into a bond to be after of good behaviour.

9. There are seven children to the relationship between he and his partner.

All of them reside with the appellant in Moree. There is no doubt from what I have seen of the appellant and what he has told me, that he wishes to be, and probably is when he isn't drunk, a loving and caring father. Clearly his children by and large love him. Although as will be seen later one of them is beginning to have problems.

10. On 15 March 2008 the appellant and his partner were drinking at friends' house nearby. At 4 o'clock she returned home expecting the arrival of the children. The appellant remained with friends and continued drinking. He returned home at 6.30. The appellant, his partner and friends continued drinking at his home, with the children and his partner coming and going from the residence. After some time the appellant left and didn't return for some three hours. When he arrived home at about midnight, his partner and he became involved in an argument regarding the absence of the appellant for those three hours. This argument quickly escalated with the appellant punching and kicking his partner several times. She fell to the ground but he continued striking her on the face, right ear, right shoulder, legs and mouth.

11. It was she who ultimately left the house and was picked up by police. She thought overnight as to whether she would consult police, and the following morning she contacted them.

12. Police noticed that her forehead was swollen and red, her right ear was substantially bruised, as was her tongue and lower lip. There were several cuts on the lower lip on the inside near the tooth line. She showed police a bruise on her right shoulder, claiming she had been kicked by the appellant. She had a visible abrasion to her right lower shoulder blade. Photographs were taken of the injuries, and she was advised to seek medical attention.

13. I have seen the photographs, and they do the appellant no credit at all.

14. When questioned in relation to the allegation, the appellant said: "I only hit her because she hit me". I have no reason to doubt that he was struck by his wife, but I fail to see that as a valid reason striking her back.

15. After that offence, at 4:30pm on 7 March, which would be I think the day following, or a couple of days following, at Moree the appellant was at a Caltex service station. The appellant's car was there. It had no registration plates, and indeed was uninsured. Four people were in the vehicle. The appellant being one of them. Police approached it. Some police officers were already speaking to the driver of this vehicle. The appellant attempted to intervene in the conversation. He was unsteady on his feet, smelt of intoxicating liquor, and had slurred speech. He said to the police: "Why don't you fuck off and leave us alone". He was told to sit in the rear of the Commodore while police spoke to the driver. I am assuming that the police were investigating what they believed to be a driving offence.

16. The appellant failed to comply with the direction. He approached the police officer who had spoken to him, Constable Edwards, and put his hand on that man's right shoulder. Edwards took a step back for the purposes of creating a distance between himself and the appellant. He again asked the appellant to sit in the rear of the Commodore. Two other occupants, that is his mates sought to get the appellant to sit in the back of the Commodore. He moved away from them, and said to the police: "Why don't youse fuck off. You're always picking on the innocent ones. This is my car".

17. There was a further attempt to get the appellant to sit in the vehicle. He said: "You think you're tough just because you're bigger than me". He then said: "How about you and I have a go"; directing those comments to the constable who initially told him to sit in the vehicle, Constable Edwards.

18. The appellant was about half a metre from Edwards, raised his hands to chest height. Constable Edwards took action, believing that the appellant was shaping up as though to fight. He grabbed the appellant by the left arm with reasonable force, pushed the appellant face down on the ground. He was then placed under arrest. The appellant was placed in the rear of the police vehicle and he was cautioned. He persisted: "What the hell are you arresting me for, I ain't done nothing, you're always arresting the innocent ones".

19. He was taken to the police station. A female constable was in charge of or at least filling in paperwork in the charge room. The appellant was in the dock at this time, and she was attempting to obtain details, including his name and the like. The appellant's response to her approach was to pull his pants down exposing his penis to her.

20. That seems to me an act of utter contempt and disrespect towards a woman. I am sure he would not have done that had the police officer been a male.

21. He said: "What are you charging me with?" She explained to the appellant what he was to be charged with. He then said to her: "You're nothing but a redneck cunt. I've been in this country longer than you. What fucking boat did you come on?"

22. It may well be true that the appellant's race has been in this country much longer than she, or the Europeans, but it would not necessarily be true that he had been in this country much longer than she. Indeed in the process of reconciliation there is no way that all the whites are going to, or are even wanted by the Aboriginal community, to leave this country. That sort of comment doesn't advance the cause of reconciliation at all. What we need to do in reconciliation is to be more caring and more aware of the needs of both sides.

23. There is further swearing at the constable.

24. In respect of those charges the appellant was sentenced to suspended sentences. I think of five months.

25. That was a charge of intimidated police.

26. The next offence that I am dealing with are offences that occurred on 4 April 2008, and they relate to a failure to comply with bail undertaking, an offence for which he could have been penalised (sic- read "charged") in any event, at least when it's made under that section, by knowingly contravene a prohibited restriction specified in an order. That is, contravene a domestic violence order. On two occasions police were called to his premises at a time when he was there in circumstances where he was not to assault, molest, harass, threaten or otherwise interfere with his partner, or not engage in any conduct that intimidated her. More particularly, not reside at the premises of 11 Ulunga Street, and not enter the premises, or any other premises at which his partner might work or reside. And he was also required to report to police.

27. On 4 April, about 7:10, she was at the premises, and the daughter, this is Ida Swan, the ten year old, said to police: "Dad is always hitting mum. I don't want to stay here no more. I hate it when he hits her".

28. Children often have an innate sense of what is right and what is wrong. The appellant's partner said that he had approached her and entered the premises, contravening his order. There was an argument that started about, which she called, 'silly things'. He called her names, and followed her through to the kitchen into the bedroom. She said to him, "Get away, you're not allowed near the house", and rang the police; and to his credit he then left the house. He should not have been there, but at least he had the sense to leave once she had rung the police.

29. Two days later, on 6 April, they attended and spoke to her. Police could hear the appellant saying: "Don't let them in". They said: "We can hear you in there, come out and get this sorted out today". He said: "Don't open the door". They stayed there for ten minutes talking to him, and he said: "All right, I'm coming out". He came out the front door ultimately and was arrested.

30. His memory of that is now faulty, because he thought that he hadn't come out, and he was telling me that he wasn't there that day.

31. Those two matters, that is the one on the 4th, and the one on the 6th, were breaches of domestic violence orders. For the one he got four months.

32. Another offence of assault a number of police officers, assault police officers in the execution of their duty, intimidate police officers, two charges, and behave in an offensive manner near a school or a public place.

33. The facts of those offences occurred in these circumstances: About 11:50pm, that is ten minutes to midnight, on 31 May two constables, Whitebread and Wiley, were conducting a mobile RBT on Alice street. They heard a male screaming for help, and saw him running in a westerly direction towards police on Alice Street. That was Andrew Swan, who is the third son. He was being chased by a brother, who had a two-foot long metal pole, white in colour, which had previously been the handle of a shopping trolley. That was the elder brother, Wayne Swan; the 17 year old twin. He said: "Come here cunt, you're fucking coming home". Police told him to throw down the bar, and there was interaction between young Wayne Swan and the police. That continued for some minutes, and at one point Wayne was fairly close to his brother Andrew, but still resisting police.

34. A second vehicle came, and the appellant and his partner emerged from that vehicle. They then began to wrestle with police, yelled out offensive things such as: "Let me go you white cunts. Fucking let him go you white cunts. Fuck off, this is a family thing". The appellant continued to hinder the police, and continued to wrestle with them. He also continued to swear at them.

35. The appellant was ultimately arrested and led towards the rear of the police vehicle. He was told what he was under arrest for, which was hinder and assault police. Meanwhile the son, Wayne, was in the back of the police vehicle. Both the appellant and his son yelled at police. They were told that they would be sprayed if they continued to carry on.

36. They were placed into the rear of the police vehicle, and the son would seem to have been trying to get out of the vehicle. The appellant then said: "Let us all go or I'm going to smash both you cunts". That didn't happen. He then said, "right then", and rushed towards the still open rear cage door towards police. Constable Whitebread said: "Get back Wayne". The appellant continued to rush and was sprayed directly into his eyes.

37. The son, not surprisingly, caring for his father, also lost it, and he too rushed to the police swearing at them. A second burst of spray was directed into his eyes, and consequently when they went to the police station ambulance officers had to decontaminate them. An observation made was that in the opinion of police he was well affected by alcohol, as he was in all the other offences.

38. On 17 July he was arrested for being in breach of the bail. 9pm on 18 July police attend his home to conduct a bail compliance check. They were told that he was across the road watching football. They spoke to him about being absent from his residence after the curfew.

39. On 19 July there was a need for them to go to Sullivan Place in Moree. Police heard that the appellant was involved, in whatever was going on at Sullivan Place, so they went to Ulunga Street to conduct a bail compliance check. They were told he was not at the address. At 4am they received another call to attend Sullivan Place. When they got there they were told that the appellant and his family had just left. One of those apparently at the party, Lenair Duncan, came to report some malicious damage to her vehicle. She had been driving out of Sullivan Place with some others and this appellant and his son were seen standing by the side of the road with their arms raised.

As she went by, Miss Duncan heard two thuds against her vehicle sounding like bottles smashing. She immediately came to the station. The damage (to her vehicle) was said to be about $100.

40. The police went to Ulunga Street to locate the appellant. He and his partner were told that they were under arrest. The appellant said well just wait until I get changed. Then once inside, well inside the house, (he was always inside), the front door was closed and locked.

41. The appellant locked himself inside the residence, refusing to come out. Police threatened to break the door. Ultimately he came out smelling strongly of alcohol.

42. On 18 July the appellant was at a 50th birthday party at 24 Sullivan Place and it seems he approached someone looking for a third person by the name of Mark. The appellant was after Mark because he thought Mark was keen to belt up one of his sons. There was an altercation between the man he spoke to who was described in this statement of facts as victim 2 and the appellant. The appellant with clenched right fist punched this man to the left cheekbone, causing pain. There were several other punches thrown at that man, who tried to defend himself.

43. The offender has a bit of a record, but it is over a number of years. In a sense, although there are a substantial number on entries on it, most of his offending has been dealt with in the Local Court. Indeed, these offences (before me) were also dealt with in the Local Court.

44. During his evidence it was determined that there were 18 offences in his history where alcohol had been a component. He is 40 years old. He looks to me to be a very fit and, as I have said to him, fairly impressive aboriginal man. He has been married for 23 years to the same partner. They have seven children. They had relocated to Moree from Brisbane. There is another son from a prior relationship. He comes down to the family periodically, but not so often that the appellant, when asked how many children he had, forgot to mention this one.

45. He said in his own childhood he experienced a stable and supporting family environment during his developmental years. He has had some difficulty with school but to his credit, having left in Year 9, he did a four or five year carpentry apprenticeship. Because he has difficulty with numeracy and literacy he was never able to complete final exams for tests that would give him the Trade Certificate. I have no doubt he has skills in carpentry.

46. He has worked in a number of unskilled and semi-skilled vocations since leaving school. Indeed, one of his strong points is that he does have a reasonable work ethnic; that is, he doesn't mind a bit of work.

47. He told Probation and Parole that he had consumed a considerable amount of alcohol prior to the first of the offences that I have dealt with and denied that his general use of alcohol was problematic.

48. Some time has been spent today in questioning both by Mr Crown and perhaps more than I should usually do by me to persuade him that alcohol is a problem that he has because it is linking him to his offending behaviour.

49. He commenced using alcohol at the age of 16 and the observation of the author of this pre-sentence report is that there is a strong correlation – connection, between his alcohol use and his criminal behaviour. He told her he drinks two or three times weekly and his partner not surprisingly would support him, says it is not considered problematic by her. She too is abusing or seems to be abusing alcohol from what I have seen of the facts in this matter.

50. One of the toughest things for a person who is wanting to give up an addiction is to do it on his own when some member of the family persists in that same addictive behaviour.

51. The offender does have the benefit of a close family network and maintains employment when it is available. The observation of Probation and Parole was that his behaviour when consuming alcohol is less than acceptable - I think a proposition he would not disagree with. They recommended that he have alcohol education and incorporating harm minimisation and counselling.

52. There is another pre-sentence report later in time where the appellant's attitude to his drinking habit had actually changed a bit. On 23 September this year he was acknowledging the link between his alcohol consumption and offending. He said that while the family was living in Brisbane he abstained from alcohol for several years, which his partner confirmed. If he did it once he can do it again. Upon return to Moree, he said that he gradually drifted into a pattern of drinking to excess.

53. What I intend to do is to give him a chance to prove that he can rehabilitate. I am going to give him bail pursuant to s11 of the Crimes(Sentencing Procedure) Act and not finalise these matters until perhaps as far as a year away, although I said to him while he was in the witness box that if he did really well I would bring the finalisation date forward. The conditions are these:

• That he is to be of good behaviour.
• He is to reside at the Roy Throne Rehabilitation Centre until the completion of the program he is currently on.

54. I should have mentioned that he is seeking to address his addictive behaviour although he has perhaps not been entirely frank with those at Roy Throne about the depth of his problem with alcohol. Hopefully after today he might go back and remind them that he does really have alcohol issues.

• Once the Roy Thorn program is completed, he is to reside at 11 Ulunga Street Moree. If there be any restriction to him so residing that restriction is lifted for the purposes of this bail.
• For the two months immediately following his completion of the program he is to attend the Roy Thorn Rehabilitation Program Monday to Friday from 9 to 5 for two months.
• He is to accept supervision by Probation and Parole and accept all reasonable directions from his case manager.
• He is to abstain from the consumption of alcoholic beverages for the duration of the bail.
• He is to abstain from the consumption of all non-prescription drugs, save for cigarettes of course, for the duration of the bail.
• He is to submit to random breath tests and random urine tests conducted by Roy Thorn or at the direction of Probation and Parole for the purposes of detecting consumption of alcohol or illicit drugs. The detection of alcohol or illicit drugs is deemed a breach of bail.
• He will submit to random urinalysis no more than four times monthly for the purpose of detecting illicit drugs.
• He is to attend Alcoholics Anonymous once fortnightly here in Moree.
• A refusal to participate in the drug urine tests will be deemed a breach of bail; any dirty drug urine test will be deemed a breach of bail. The supply of a urine source from another person will be deemed a breach of bail.
• He is, at the completion of the six-month period of his program with Roy Thorn, to seek employment. That means look. It doesn't mean you have to get one but you have to look for one. If you can't get one it is not a breach but if you can get one then you are supposed to get one.
• To seek a position of employment and if he obtains the position do all he can to maintain employment.
• He is to provide proof of all of the activities that form part of his bail conditions when he comes to Court.
• He is to attend Court at the times required by the Court, which will be, all things being equal, on four more occasions, unless we hear of an infraction in which case I might have to increase it. I want to be notified within 48 hours of any breach.

55. We will get that bail for you now. I stand this matter over for 12 months. I will have my first progress report at the hearings commencing on 9 March here next year.

56. You won't need to come on 9 March but you will need to come some time during that fortnight just to tell me what you are doing and how you are doing. You by that time will have been out for about three months and I will be very interested to see if you can stay drug free and alcohol free. I ought to also indicate that in the event that the appellant is successful I will review the need to impose a sentence of imprisonment at all in respect of all offences.