Director of Public Prosecutions (NSW) v Johnson

Director of Public Prosecutions (NSW) v Johnson - [2015] NSWLC 31 - NSWLC 2015 case summary — Zoe

[3]

Facts

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.
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.
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.
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.
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.
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.
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.

[4]

Maximum Penalty

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".
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.
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.

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Judgment (16 paragraphs)

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Cases Cited (23)