Local Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Johnson [2015] NSWLC 31 Hearing dates: 10 December 2015 Decision date: 18 December 2015 Jurisdiction: Criminal Before: Stewart LCM Decision: The offender is sentenced to an aggregate term of imprisonment for 4 years with a non-parole period of 2 years 6 months Catchwords: CRIMINAL LAW – sentencing – domestic violence offences – contravention of ADVO with violence - aggregate sentence – Local Court jurisdictional limit - general deterrence – specific deterrence – denunciation – protection of community – principle of totality – special circumstances Legislation Cited: Crimes Act 1900, ss 33, 35, 37, 59, 61, 86, 195 Crimes (Domestic and Personal Violence) Act 2007, ss 9, 11,14, 75 Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 21A, 22, 44, 47, 48, 49, 53A, 58 Inclosed Lands Protection Act 1901, s 4 Cases Cited: Bugmy v The Queen [2013] HCA 37 Hiron v R [2007] NSWCCA 336 JM v R [2014] NSWCCA 297 Khanwaiz v R [2012] NSWCCA 168 McIntosh v R [2015] NSWCCA 184 Mill v The Queen(1988) 166 CLR 59 Nowak v R [2008] NSWCCA 89 Pearce v The Queen (1998) 194 CLR 610 R v AD [2008] NSWCCA 289 R v Borkowski [2009] NSWCCA 102 R v Dib [2003] NSWCCA 117 R v Doan (2000) 50 NSWLR 115 R v Edigarov [2001] NSWCCA 436 R v Fernando (1992) 76 A Crim R 58 R v Hamid [2006] NSWCCA 302 R v Harris [2007] NSWCCA 130 R v Henry & Ors [1999] NSWCCA 111 R v Jones (unreported, NSWCCA, 30/6/1994) R v Merrin [2007] NSWCCA 255 R v Shepherd [2003] NSWCCA 351 R v Stone (1995) 85 A Crim R 436 R v Thompson; R v Houlton (2000) 49 NSWLR 383 R v Wallace [2007] NSWCCA 63 R v Zamagias [2002] NSWCCA 17 Sivell v R [2009] NSWCCA 286 Veen v The Queen (No. 2) (1988) 164 CLR 465 Category: Sentence Parties: Director of Public Prosecutions (NSW) Kye Johnson (offender) Representation: Counsel: Mr M Powell (for the offender) Solicitors: Mr N Tran-Dinh (for the DPP) File Number(s): 2015/149446 Judgment 1. The offender was charged with the following offences: 1. Common assault (sequences 1, 12, 13, 14) – s 61 Crimes Act 1900 – maximum penalty 2 years imprisonment – charges withdrawn 22/10/15 2. Wound with intent to cause grievous bodily harm (sequences 2, 3, 5) – s 33(1) Crimes Act 1900 – maximum penalty 25 years imprisonment – charges withdrawn 22/10/15 3. Assault occasioning actual bodily harm (sequences 4, 6, 15) – s 59 Crimes Act 1900 – maximum penalty 5 years imprisonment – charges withdrawn 22/10/15 4. Take and detain for advantage (aggravated) (sequence 7) – s 86(2) Crimes Act 1900 – maximum penalty 20 years – charge withdrawn 22/10/15 5. Destroy or damage property (sequence 8) - s 95(1) Crimes Act 1900 – maximum penalty 5 years imprisonment. Guilty plea entered 22/10/15 6. Enter inclosed lands (sequence 9) – s 4 Inclosed Lands Protection Act 1901 – maximum penalty $550. Guilty plea entered 22/10/15. 7. Contravene Apprehended Domestic Violence Order (sequence 10) – s 14(1) Crimes (Domestic and Personal Violence) Act 2007 - maximum penalty 2 years imprisonment. Guilty plea entered 22/10/15 8. Intentionally choke person with recklessness (sequence 16) – s 37(1) Crimes Act 1900 – maximum penalty 10 years imprisonment. Guilty plea entered 22/10/15 9. Reckless wounding (sequence 17) – s 35(4) Crimes Act 1900 – maximum penalty 7 years. Guilty plea entered 22/10/15 1. The offender is to be sentenced for reckless wounding, intentionally choke person with recklessness; contravene AVO, destroy property and enter inclosed lands. The guilty pleas were entered following plea negotiation and the balance of charges withdrawn. The reckless wounding charge was laid shortly before the plea of guilty was entered. It replaced a number of charges. Accordingly, I allow the full 25% discount for the utilitarian value of that plea. The other pleas were not entered at an early opportunity. I allow a discount of 10% for the utilitarian value of those matters - see R v Thompson; R v Houlton (2000) 49 NSWLR 383 and the judgment of Howie J in R v Borkowski [2009] NSWCCA 102 at [32], citing R v Dib [2003] NSWCCA 117: "the utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain." Facts 1. A statement of facts was prepared to reflect the matters for which the guilty pleas were entered. It was tendered by consent. I proceed to sentence on the basis of what is contained within that statement of facts as the agreed facts (annexed to judgment). For the purpose of these sentencing remarks, I will give a brief outline of those facts. 2. The offender was 22 years of age at the time of the offence. The victim was 19. They had been in a relationship for 6 years but did not reside together. A Final Apprehended Violence Order was in force. In the early hours of 19 May 2015, the offender, victim and others were at the offender's premises. They had been drinking. The victim was dancing in the kitchen with a male and when the offender saw this, he kicked her between the breasts causing her to stumble backwards through the backdoor, across the veranda onto the ground below. He approached her. She raised her hands to protect herself. He kicked her 3 to 4 times to the hands and head, calling her a 'slut' and a 'dog'. Another woman tried unsuccessfully to intervene. 3. The victim rolled onto her stomach. The offender threw a scooter at her, hitting her in the back of the head, before striking the victim a number of times to the body – despite the pleading of the victim to let her go home. He picked up a small motorbike and threw it at her, hitting her in the back of the neck, then threw something else at her. The offender ran inside and yelled to those present, "Youse wanna fuck off". He returned to the victim and told her to get up or he would drag her inside, and grabbed her by her hair and shirt dragging her onto the veranda, through the kitchen, and down a hallway to his bedroom. He put her on the floor and walked out. The victim crawled to the toilet where she sat, shaking and spitting blood. 4. The offender armed himself with a small knife, dragged the victim back to the bedroom, threw her onto the bed and stabbed her above the right knee. She fell to the floor in pain. She asked him to stop. He threw a deodorant can hitting her on the nose. He picked up a television set and dropped it on her head. 5. Mr Johnson then retrieved a wooden stick from under the bed and struck the victim to the face as she lay on the floor, continuing to strike her as she covered her head with her arms. She saw that the offender was armed with the stick and the knife and grabbed the stick to stop it being used to beat her. He stabbed her on the knuckles of her right hand, then stabbed her to the left elbow and struck her under the right eye. 6. The offender then used both hands to choke the victim on two occasions, each for about 30 seconds. The victim struggled to breath and was incapable of resistance at that time. In an effort to escape, the victim suggested that they both have a shower. They undressed and sat in the shower. Blood was all over the shower floor. The offender kicked her head and her head hit the tiles. He told her to "fuck off near the bathroom door" and threw items at her striking her in the face. She told him she would get body wash and shampoo, wrapped a towel around herself and left the house. She was dizzy and had difficulty walking and made her way home, though she did not have keys. She heard the offender yell, "I'm gonna hit you. I'm gonna catch up." Fortunately, the victim managed to hide in the back of a car in the driveway. He yelled, "Come out you motherfucker" and kicked holes in the walls of the house. She fell asleep in the car and was later taken to hospital by ambulance. 7. Police arrested the offender at his home. They observed blood stains on the television, mattress, carpet, door handle and floor. They located a half metre long wooden stick with blood stains and strands of hair on it. They located a knife. Maximum Penalty 1. The maximum penalties for the offences charged are set out above. With the exception of the offences of enter inclosed lands and contravene AVO, the remaining matters under consideration are ones to which the principles enunciated by the Court of Criminal Appeal in R v Doan (2000) 50 NSWLR 115 per Grove J at [35] apply: … where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted, must be rejected. As must also be rejected, the corollary that a sentence of two years imprisonment should be reserved for a "worst case". 1. In R v Merrin [2007] NSWCCA 255 at [36]-[38], Howie J (Giles JA and Fullerton J agreeing) said at [36]: This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances. There will be a degree of accumulation in the sentences imposed in this matter. The principle of totality applies to the matters for which Mr Johnson is to be sentenced as well as the existing sentence being served – see Hiron v R [2007] NSWCCA 336 at [26], citing Mill v The Queen (1988) 166 CLR 59. 1. Indication is now given to the offender pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 that an aggregate sentence is being imposed, with the exception of the enter inclosed lands matter. The offender is currently serving a prison sentence for a number of domestic violence offences committed upon the same victim. As per s 58 Crimes (Sentencing Procedure) Act, a sentence that is to be served consecutively with an existing sentence must not exceed 5 years from the commencement of the existing sentence. Assessment of the Criminality 1. The seriousness of each offence cannot be assessed properly without considering the context of the overall criminal conduct. It is inappropriate for example to consider the choking offence in isolation. It occurred followed a protracted, brutal assault both inside and outside of the offender's home after the victim had been stabbed three times, beaten, kicked and punched, dragged by the hair and had objects thrown at her and dropped on her. I reject the Crown submission that the choking offence is below mid-range. When considered in context, the offence is extremely serious as the victim was even more vulnerable at the time that she was choked and less in a position to do anything about the attack upon her. The offence is at or above mid-range. The contravene AVO matter is at the top of the range. 2. The victim's vulnerability is an aggravating factor regarding the choking and reckless wounding matters, within the meaning of s 21A(2)(l) Crimes (Sentencing Procedure) Act. 3. The moral culpability of the offender is extremely high. These are serious and significant examples of domestic violence – a scourge that plagues the community. Criminal History of the Offender 1. The offender has an extensive criminal history which includes personal violence offences committed upon the same victim during the course of their relationship. He has received sentences of imprisonment for his cowardly, dominating and violent conduct. A record involving prior personal violence offences is an aggravating factor (s 21A(2)(d) Crimes (Sentencing Procedure) Act), to which more weight to considerations of specific deterrence and protection will be given (see Hiron at [37]). Offender on Conditional Liberty 1. At the time of these offences, the offender was on conditional liberty as he was on bail for domestic violence matters against the same victim. The commission of further offences while subject to conditional liberty is a matter of "major aggravation": for example, see R v Jones (unreported, NSW Court of Criminal Appeal, 30 June 1994); R v Wallace [2007] NSWCCA 63. Jones was affirmed by the CCA in R v AD [2008] NSWCCA 289 at [43]. See also s 21A(2)(j) Crimes (Sentencing Procedure) Act. The current offences occurred 2 months before the victim was due to give evidence against the offender on assault occasioning actual bodily harm and contravene AVO offences. 2. The offender was the subject of an Apprehended Violence Order, where conditions were placed on the offender's liberty "with the object of protecting against the risk of offences of a particular kind being committed where the potential victim is in position of vulnerability … by their social or domestic circumstances in the case of women or others at risk of personal violence": Sivell v R [2009] NSWCCA 286 per Fullerton J (McClellan CJ at CL and Schmidt J agreeing) at [29]. However, I err on the side of caution and do not regard the conditions of the AVO affecting the offender's liberty as an aggravating factor within the meaning of s 21(2A)(j) Crimes (Sentencing Procedure) Act. Matters of General Principle 1. The offence of reckless wounding involved the use of a weapon which is an aggravating factor - see s 21A(2)(c) Crimes (Sentencing Procedure) Act; Nowak v R [2008] NSWCCA 89 at [16]-[17] and R v Shepherd [2003] NSWCCA 351 at [32] per Kirby J (Meagher JA and Shaw J agreeing). 2. The contravene AVO offence involved gratuitous cruelty through the use of needless yet intentional violence - see s 21A(2)(f) Crimes (Sentencing Procedure) Act. This is yet another aggravating factor to be considered in determining an appropriate sentence. 3. Section 14(4) Crimes (Domestic and Personal Violence) Act provides: Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person. 1. In R v Hamid [2006] NSWCCA 302, Johnson J (Hunt AJA and Latham J agreeing) said at [86]: In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important. 1. In R v Edigarov [2001] NSWCCA 436, Wood CJ at CL (Studdert and Bell JJ agreeing) said at [41]: … violent attacks in domestic settings must be treated with real seriousness.… such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence. 1. In accordance with the authorities cited, the sentences to be imposed in this case will have a strong element of personal and general deterrence. Pre-Sentence Report 1. The offender was brought up by his foster mother and father, unmarred by issues of significance until 2010 when his foster father died. The offender was 18. There are unresolved issues with drugs and alcohol. His drug use apparently commenced at a very early age. I am not satisfied, nor was it submitted, that these circumstances give rise to considerations known as the Bugmy/Fernando principles - see Bugmy v The Queen [2013] HCA 37, and R v Fernando (1992) 76 A Crim R 58 at [62]-[63]. 2. Whilst the facts disclose, and therefore I am bound to accept, that the offender was under the influence of alcohol at the time of the offences, there is no credible information that he was also under the influence of drugs – something raised only in the pre-sentence report. The court attendance notice indicates an offence time between 2am and 4am, with time of apprehension 9:25am. There is no mention by police that the offender was drug affected upon arrest. I shall proceed to sentence on the basis of the agreed facts - see Khanwaiz v R [2012] NSWCCA 168 at [94]-[96]. 3. It is clear from the pre-sentence report that the offender either lacks or has limited insight into his violent conduct. The report indicates that the offender revealed "an alarming propensity for violence". There is reference in the report to him "justifying his violence against the victim; victim blaming; limited insight into the impact his violence had upon the victim; and a failure to articulate appropriate victim empathy". I am not satisfied that any remorse has been demonstrated by the offender. 4. It is hardly surprising that the offender is assessed as a high risk of re-offending. His age is a factor in favour of him being rehabilitated, though I find that his prospects of rehabilitation are guarded at present. Plea in Mitigation 1. The plea in mitigation mainly focused upon matters raised in the pre-sentence report. It was conceded that the offender's history does not assist him. Emphasis was placed on the offender's claimed drug habit, including the use of up to 7 grams of 'ice' per day, oxycontin and cannabis. I am unable to make a finding that the offender's drug use is causally connected to the offences for which he is to be sentenced. General Remarks 1. In sentencing the offender, the offence of enter inclosed lands is punishable by fine only. For the remainder of matters, and for reasons set out below, I will sentence the offender by way of an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act and I will now consider those matters. 2. I have had regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. As indicated above, there is a need for both general and specific deterrence and to make the offender accountable for his actions, to recognise the harm done to the victim of the crime(s) and the community and to protect the community from the offender. At the same time, and for reasons previously referred to, I have regard of the need to promote the rehabilitation of the offender. I am of the opinion that no sentence is warranted other than a custodial sentence - see R v Zamagias [2002] NSWCCA 17 at [24]-[25]. 3. Options of suspended sentences or intensive corrections order are not available for three reasons. Firstly, the offender is currently serving a full time custodial sentence. Secondly, the length of sentence to be imposed will exceed the maximum length of sentence allowable for such options. Thirdly, neither option would be a sufficiently adequate form of punishment to act as a deterrent to both the general public and the offender, per Zamagias at [32]. See also Pearce v The Queen (1998) 194 CLR 610 at [45] and [49], and the need to impose an appropriate sentence for each offence, noting that "if additional or greater criminality inherent in the commission of second, third and subsequent offences is to be punished at all, some accumulation of sentences is almost always required": R v Harris [2007] NSWCCA 130 at [39]. Pre-Sentence Custody 1. The offender was taken into custody on 19 May 2015. He received a sentence of imprisonment for previous domestic violence offences on 6 August 2015, backdated to 3 May 2015 with an overall sentence of 22 months. His time in custody to date is referrable to his current sentence. Guilty pleas were entered on 22 October 2015 and the matter stood over to 10 December at counsel's request for the preparation of a pre-sentence report. The sentences to be imposed will date from today, 18 December 2015. Indicative Sentences – s 53A(2)(b) Crimes (Sentencing Procedure) Act 1. In all of the circumstances, given the facts and the various aggravating and mitigating factors as I have found them to be, I am of the opinion that the criminality for each matter is deserving of the sentence indicated below, having applied the discounts set out above for the utilitarian value of the guilty plea in each case, as follows (note that none of the offences are subject to a standard non-parole period, and accordingly, non-parole periods are not specified – s 44(2C) Crimes (Sentencing Procedure) Act): 1. Seq. 8 destroy/damage property: 10 months 2. Seq. 10 contravene AVO: 21 months 3. Seq. 16 choke: 2 years (noting that a head sentence exceeding 2 years (i.e. 2 years 3 months) would be appropriate, but recognising the jurisdictional limit of this court as 2 years, as per Doan) 4. Seq. 17 reckless wounding: 2 years (noting that a head sentence exceeding 2 years (i.e. 2 years 9 months) would be appropriate, but recognising the jurisdictional limit of this court as 2 years, as per Doan) Aggregate Sentence and Special Circumstances 1. I have had regard to the various propositions regarding aggregate sentencing emerging from legislation and cases are set out in JM v R [2014] NSWCCA 297 at [39] per R A Hulme J, and McIntosh v R [2015] NSWCCA 184. 2. I make a finding of special circumstances per s 44(2B) Crimes (Sentencing Procedure) Act noting his age, and his need for drug and alcohol rehabilitation upon his release. The offender's drug use commenced at an age when he was unable to make free choice as to the consequence of its use: see discussion in R v Henry & Ors [1999] NSWCCA 111. The court is not required to reduce the non-parole period where the importance of general deterrence requires that the non-parole period not be reduced: see R v Stone (1995) 85 A Crim R 436 at 443 (per Sully J, Levine J agreeing). The importance of general deterrence in these matters is clear. In fact, consideration has been given to the potential need to increase the non-parole period, as in Veen v The Queen (No. 2) (1988) 164 CLR 465. Notwithstanding that, and considering the principle of totality, the non-parole period will be reduced on the basis of a finding of special circumstances. 3. Pursuant to s 75 Crimes (Domestic and Personal Violence) Act, whereby the offender has pleaded guilty to domestic violence offences (see s 11 of the Act), I vary the existing final order for the purpose of providing greater protection for the person against whom the offences were committed. The AVO is extended for a period of 5 years with the existing conditions unchanged. Orders 1. The offender is sentenced to a term of imprisonment of 4 years to date from 18 December 2015 concluding on 17 December 2019. 2. The non-parole period is 2 years and 6 months, commencing 18 December 2015 and expiring 17 June 2018 upon which the offender will be eligible to apply for parole. 3. In relation to the enter inclosed lands offence (sequence 12), a conviction with no further penalty is recorded pursuant to s 10A Crimes (Sentencing Procedure) Act. 4. The final Apprehended Violence Order for the protection of the victim is extended to a period of 5 years from today with the mandatory conditions unchanged, and orders 1 A, B, and C and 7. Magistrate P Stewart Bourke Local Court (sitting at Dubbo) 18 December 2015 ********** NOTE: On 26 February 2016, the District Court dismissed an appeal by the offender against the severity of the sentence imposed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2016