JOHNSON A M

STATE OF TASMANIA v ADRIAN MICHAEL JOHNSON           24 SEPTEMBER 2019

COMMENTS ON PASSING SENTENCE                           PEARCE J

 Adrian Johnson was found guilty by a jury of wounding. Subject to the verdict, it is for me to find facts for sentence. It follows from the verdict that the jury was satisfied beyond reasonable doubt that Mr Johnson caused a wound to the complainant, Shane Baker, at around 11.00 pm on 27 May 2017 in a car park area adjacent to Macquarie Street in George Town. There was no dispute that, as a result of a blow struck by the defendant, Mr Baker suffered a deep laceration to his left upper eyelid and eyebrow which extended almost to the bone of the upper eyelid, and required sutures in two layers to close. It also follows from the verdict that the jury was satisfied that Mr Johnson either intended the wound or realised the possibility and acted regardless of the risk, and that the wound was not justified by self-defence. It is consistent with the verdict that, the defendant was justified in using some force to defend himself, but that the amount of force he used was unreasonable. However I am satisfied beyond reasonable doubt that the defendant did not act in self-defence at all.

During that evening defendant had been at a hotel in George Town with his partner Angela Palmer. At the hotel they met up with friends including Leah Doolan and Jazmine Weavell. When the hotel closed around 10.30 the defendant and the three females walked together up the main street, Macquarie Street, to a takeaway shop, where they purchased some food. At about the same time Shane Baker and his friend Luke Edwards left the same hotel and walked to the takeaway shop. By the time Mr Baker and Mr Edwards walked out of the shop, Mr Johnson and Ms Palmer were in the car park area of a park directly across Macquarie Street. At trial, there was a conflict of evidence about what then happened. It was the prosecution case, based on the evidence of Mr Baker and Mr Edwards and some circumstantial evidence, that the two men walked across the road to investigate yelling between a male and a female, which they were both concerned about. The State contended that it was Mr Johnson and Ms Palmer who were yelling at each other. Mr Baker came across Ms Weavell, who he knew, and who was also in the car park. While he was talking to her, Mr Edwards was aggressively approached by Ms Palmer. As Mr Baker suggested to Miss Weavell that she should ask Ms Palmer to desist, Mr Johnson approached from Mr Baker’s right hand side and struck him with a round motion while holding a beer glass. According to Mr Baker, his face was split open and blood started streaming from the cut. He later found broken glass in the open front pocket of the hooded top he was wearing. Mr Edwards came to his aid and physically confronted the defendant with punches, causing him to fall to the ground. Then Mr Baker and Mr Edwards walked to the local doctor’s surgery where they phoned the after-hours number. He was treated shortly after midnight by Dr Amanda Clifford who cleaned and stitched the wound. Mr Baker told Dr Clifford that he had been “glassed” although she recorded him as having said it was with a bottle. The following night, a police officer found a broken glass in the area which was later swabbed, and showed the presence of DNA matching that of Mr Baker. Dr Clifford described the wound Mr Baker suffered as a “clean cut wound”, with a straight line edge rather than being jagged. She thought that the wound appeared to have been caused by something sharp like broken glass or a knife. She noted the absence of any dirt or foreign material in the wound which may occur if someone had, for example, fallen and cut themselves on something on the ground. Common human experience suggests that the nature of the wound suffered by Mr Baker is inconsistent with having been struck with a fist. In my view, the only rational explanation for the wound is that Mr Baker was struck hard with a glass which broke on impact.

I am satisfied of the truth of the substance of the account given by Mr Baker and Mr Edwards. Unless they were intent on violence for no reason, which I reject, there is no sensible reason for them to have become involved with the other group, and the defendant in particular, unless what they say is true. I found Mr Edwards, in particular, a compelling and persuasive witness. He was understated and not prone to exaggeration. He did not equivocate or seek to avoid responsibility for the violence he inflicted on Mr Johnson after Mr Baker was struck. His evidence had the ring of truth. In some respects their account was inconsistent with the account given by Ms Doolan and Ms Weavell. They gave evidence that at the time Mr Baker and Mr Edwards crossed the road they were still on the opposite side of the road and not in the car park. Ms Doolan said that she saw the men walk across the road and that it did not “look good”, and by the time she crossed, Mr Johnson was on the ground in the foetal position being punched by someone. She did not say that she saw Mr Baker struck, or that it did not happen, and professed to have not noticed any injury on his face. I do not believe that part of her account. She was called by the prosecution as a witness but she was plainly in the defendant’s camp. I think Ms Weavell was an honest witness, but I think she equivocated in some aspects of her evidence so as to protect the defendant. She agreed that she took a photograph of the complainant’s eye at his request. I think she is mistaken about where she was when the confrontation started or found herself in a position in which she was reluctant to say anything which was adverse to Mr Johnson’s defence. She did not see the blow which Mr Baker was undoubtedly struck and her description of the exchange between Mr Johns and Mr Edwards is largely consistent with Mr Edwards’ account. Ms Palmer gave evidence. She was also a prosecution witness. Her evidence does not cause me to doubt the prosecution account.  She was walking away from the defendant when the two men approached. She told the jury that she couldn’t really explain what then happened and that by the time she got back to Mr Johnson he was on the ground with someone on top of him. Mr Johnson did not give evidence but gave an account to the police in an interview conducted two days later. The substance of what he said was that the two men walked straight towards him as if they intended to fight. He removed his jacket but was attacked by Mr Baker and then Mr Edwards, who kicked and punched him. He admitted that he struck Mr Baker but said that he did so in self-defence, and did not agree that he was holding a glass. I regard his account, as the jury must have, as quite unsatisfactory. His answers were vague and evasive in important respects. His denials that he had a glass in his hand are most unconvincing and I reject them.

Mr Johnson is now 35. He and Ms Palmer have been in a relationship for 13 years. They have one child together and Mr Johnson has assumed a parental for Ms Palmer’s children from a previous relationship. His imprisonment will be burdensome for his family, but that is part of the price to be paid for committing crime, and results from the crime and not the sentence. He has worked for the same employer for the last four years and is well regarded. His record indicates that resort to violence is not out of character for him, particularly when affected by alcohol. In 2011 he was ordered to perform community service after having pleaded guilty to assaulting Ms Palmer. In 2015 he was fined for assaulting a security officer at a night club in Devonport by punching and kicking him. Then, on 8 May 2017, he was sentenced to imprisonment for five months, wholly suspended for two years, and 35 hours of community service, for assaulting Ms Palmer on 3 February 2017. This was a serious assault involving kicks and repeated strikes to her head in the family home. The crime for which he is now to be sentenced was committed only a few weeks after that suspended sentence was imposed. I take into account that he completed the community service, but there is no proper basis for concluding that it is unjust to now activate that sentence, and so I must do so. It is relevant to totality but involves separate and serious criminality. The common theme amongst the offences committed by the defendant is his abuse of alcohol and proneness to violence when angered. Although the evidence of his offending history was not before the jury, it is probative of the truth of the prosecution case that, affected by alcohol, he was first verbally abusive to Ms Palmer and then violent towards a person who sought to intervene. His counsel indicated that she has made her views about his conduct when affected by alcohol well known to him, but has continued to offer her support. I find that her evidence in this case was influenced by loyalty and her wish to continue that support and preserve their relationship. The defendant claims to have become more conscious of management of alcohol and anger in the meantime but has not sought any professional assistance or counselling to address his past offending.  He has not re-offended. I will allow for his continued rehabilitation by suspending some of the new sentence. However, he is not entitled to the mitigation a plea of guilty would have attracted and has demonstrated no remorse. Fortunately for him Mr Baker did not suffer any disabling injury although he is left with a mild scar and a lump he is self-conscious about. There are also some mild psychological effects which continue and are to be expected from assaults of this nature.

The community has a legitimate concern about violence of this type, and in particular the infliction of injury by blows to the face with glass objects. I am not satisfied that the defendant intended to wound Mr Baker, but in cases like this the risk of wounding is so obvious that there is little difference in culpability between intent and recklessness. Had Mr Baker been more seriously injured, a much longer sentence would have been required.

Adrian Johnson, you are convicted on the indictment. The five month suspended sentence imposed on 8 May 2017 is activated and I order that it be served from 5 September 2019, the day you were taken into custody. I order that you not be eligible for parole until you have served half that sentence. On the indictment you are sentenced to imprisonment for 15 months, cumulative to the sentence just imposed. I suspend six months of that term for two years from today. I order that you not be eligible for parole until you have served half of the nine month operative part of that sentence. In accordance with the Sentencing Act, s 92A, I specify that the total term of imprisonment that you are liable to serve for all the sentences of imprisonment that are being imposed or activated today is 20 months from 5 September 2019, six months of which is suspended for two years from today. The operative part of the sentence is 14 months from 5 September 2019 and you are not eligible for parole until you have served seven months of that term.