Williams, Travis v D.P.P

[2009] NSWDC 250

CITATION:	Williams, Travis v D.P.P [2009] NSWDC 250
HEARING DATE(S):	09/09/09 and 10/09/09
JUDGMENT DATE:	10 September 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Appeal dismissed. Conviction and sentences imposed by the learned magistrate confirmed.
CATCHWORDS:	Criminal Law - Severity Appeal from Local Court - Assault - intimidate - contravene ADVO - recklessly damage property - Aboriginal offender - gratituous and sustained attack upon victim - severity of assault such as to focus sentencing upon punishment.
PARTIES:	Travis Kevin Samuel Williams Director of Public Prosecutions
FILE NUMBER(S):	2009/73071
COUNSEL:	Defence: P Johnson
SOLICITORS:	Crown: N Tran-Dinh

JUDGMENT

1. Travis Williams appeals against the sentences of imprisonment imposed upon him in the Local Court here at Broken Hill on 11 June 2009. On that occasion he was before the court on four charges really arising out of the same incident. One was an assault occasion actual bodily harm; the others are described as intimidate, contravening a prohibition specified in an order; and intentionally or recklessly destroying or damaging property. The sentences for those offences varies slightly but the overall effect of them was that he was sentenced to an overall term of fifteen months imprisonment with an eight months non-parole to date from 4 June 2009.

2. The facts before the learned magistrate were these, that Melissa Stokes and Travis Williams, the appellant, had previously been in a domestic relationship which had ended six months prior to the offences. There was an enforceable apprehended violence order in place naming the victim as the person in need of protection. The orders were in terms of not assaulting, molesting, harassing, threatening, or otherwise interfering with the protected person, or engaging in conduct that intimidated the protected person, or stalk her.

3. Against that set of orders imposed by the court, on 3 June 2004 the victim was with her friends in Woore Street, Wilcannia. There she received a phone call from the accused, which she answered. His evidence yesterday was that he had rung her a number of times and she had not answered. He called her a dog and a whore. Well, in terms of the mandatory orders those offensive terms amounted to harassment and otherwise interfering with her. Could also have amounted to intimidation of her. There were a number of calls, of this nature and she decided not to answer them anymore. They were the ones no doubt that the appellant mentioned or referred to yesterday.

4. He attempted to call for a period of two hours, then attended where she was and called her outside. She went to speak with him. He grabbed her by the hair and commenced to drag her back to a residence in Hood Street, Wilcannia; dragging and punching her the whole time he was taking her to Hood Street. Against the orders imposed, this amounted to assaulting, molesting, harassing and intimidating. That distance is said to be 200 metres. They were serious breaches of the order. But he had not finished.

5. At Hood Street he punched her, kicked her and pulled her hair. He threatened her by saying he was going to stab her. He picked up a knife and held it towards her. Then he dragged her outside and stated that he was going to kill - it says, “Then in the car but he couldn’t find the keys to the car”. Pausing yet again, he was assaulting her at that time, molesting her, harassing her, threatening her with death and otherwise interfering and engaging in conduct that intimidated her.

6. Outside she fell to the ground. While on the ground she was kicked to the stomach area causing pain, then dragged back into the house and into the kitchen area. Again he picked up the knife and threatened to kill her with it. She was struggling to breathe. He got her a drink of water. She could not consume the water because she was short breathed from being kicked in the stomach. He then turned the tap on, told her to drink from the tap. As she attempted to drink he forced her head against the faucet causing pain to her forehead. Let us just check the orders again and see what that amounts to. That was assaulting, molesting, harassing, threatening, otherwise interfering and engaging in conduct that intimidated. The court had told him not to do those things. He was doing them and doing them continuously.

7. He threatened her again with the knife. She held his hands so that he could not stab her. He stepped back, picked up the microwave oven and threw it at her. It missed and smashed onto the cement. At this time police arrived. Looking at that conduct it amounts to assault, it amounts to molestation, an attempted molestation by throwing the gadget at her, harassing her, threatening her and otherwise engaging in conduct that not only intimidated her but probably scared the living daylights out of her.

8. Police found the front door off its hinges. They could hear yelling and screaming. They entered inside. On walking through the house they observed the backdoor to be completely broken in half. They located the appellant and victim in the kitchen and immediately placed him under arrest. He was cautioned.

9. His victim was emotional and asking why he had bashed her. There is a puzzlement. He had not even made it clear why he was engaged in this offensive conduct. From her point of view it was what is called gratuitous, that is, inexplicable. So he had breached the orders of the court and here is a girl, a mature girl I take it, who did not have a clue why it was happening.

10. The imprisonment rate for Aborigines in Australia is one in eighty. One Aboriginal person in every eight is in prison. The imprisonment rate of Aboriginals is more than 2,000 per 100,000, making it the highest by far imprisonment rate of any group in the world. It is really a sad event that so many of our young Aboriginal men particularly, and a growing number of women are incarcerated. But when you look at this conduct what other option is there that the court has?

11. The sadness is that in a community [Broken Hill] which has a gaol that houses, I think, some ninety prisoners, most of whom are Aboriginal, there are no courses dealing with anger management and there are no courses dealing with alcohol abuse. The cycle will simply keep repeating.

12. Mr Williams gave evidence. I was impressed by his articulation. I was impressed by the fact that he seems to have a sense of enterprise about him, that he was able to organise the Four Way Goats project, or at least be a party to its organisation, and that the concept was such an exciting and a good one. It shows the potential that Aboriginal men have to function in the community, marred in this case by a very serious flaw, that is, his attitude to women.

13. From my experience more and more Aboriginal women are standing up and saying, “We ain’t taking it any more.” And they are the real heroines in this story. It may take some time but I am confident that ultimately domestic violence issues will be addressed by Aboriginal people in the community.

14. In any event, while I understand the social context of this offence, there is very little I can do. The learned magistrate in my view took a rather sympathetic view of the total situation and the overall sentence of fifteen months imprisonment with an eight-month non-parole on my view is about the least he could have given.

15. In all the circumstances, difficult as it is that imprisonment, as I see is, is really a source of punishment rather than a source of rehabilitation, punishment is what is called for here. At the end of the day the formal orders I will be making are that the appeal will be dismissed. So I formally make those orders. The appeal is dismissed, the convictions and sentences are confirmed.