STATE OF TASMANIA v MATHEW LUKE JOHNSON BRETT J
COMMENTS ON PASSING SENTENCE 23 JULY 2019
Mr Johnson, you have pleaded guilty on the indictment to 2 counts of assault, 1 count of stalking and 1 count of attempting to interfere with a witness. You have also pleaded guilty to a number of summary offences, which I have agreed to hear and determine pursuant to s 385A of the Criminal Code. These are 15 counts of breaching a family violence order and 23 counts of attempting to breach such an order. Some of the conduct relevant to the summary offences is conduct which also constitutes one or more counts to which you have pleaded guilty on the indictment. In respect of such conduct, you will not be punished more than once. However, the sentence will take into account, where appropriate, that such conduct not only constituted the commission of the relevant crime, but was also committed in breach of the family violence order. I note also that the commission of all of the crimes and offences was in breach of the suspended sentence that we have discussed today, which is a sentence in respect of which there was a partial suspension, the period of suspension was two months’ imprisonment. That sentence was imposed by a magistrate on 24 July 2018.
All of the offending conduct either constitutes or is related to family violence against a woman with whom you had been in a relationship. That relationship commenced in November 2017. Within a few months of its commencement, you assaulted her and stole her property. On 5 April 2018, you were sentenced to imprisonment for this conduct and a restraint order was made which prevented you from having contact with the complainant. Just over a month later, you breached this order by contacting the complainant by telephone on numerous occasions. This is the conduct to which the sentence imposed on 24 July 2018, part of which was suspended, relates. You had to serve part of that sentence and you were released from custody on 30 July 2018.
Nine days after your release, on 8 August 2018, you again commenced to contact the complainant by telephone. You persisted with this conduct by telephoning her numerous times every day between the 8 and 11 August. You did so despite the family violence order, and being told by the complainant to leave her alone and not contact her. However, during a conversation initiated by you on 11 August, the complainant agreed to meet you at a hotel. It is clear from what subsequently took place that she anticipated that she would spend the night with you at the hotel.
For a few hours after you both arrived at the hotel on that day, the relationship between you was stable. You both consumed alcohol, and on at least one occasion engaged in consensual sexual intercourse. However, at about 7pm, you were drunk and became angry and irrationally jealous when the complainant received a text message from a male friend. You assaulted the complainant by grabbing her hair, holding her head down on the bed and striking her to the face with your hand four times. Both before and while you were doing this, you verbally abused and threatened her. After a break of about five minutes while you went to the bathroom, you again assaulted the complainant. On this occasion, you pushed and held her face into a pillow while you sat on top of her with all your weight pushing down on her. You held her in this position for a few minutes, during which she struggled to breathe. Your conduct and what you were saying while you did this caused the complainant to believe, reasonably in my view, that you were trying to kill her, and her life was under threat. The statements included telling her that she would never see her children again.
For a relatively short period, until you both fell asleep, you continued to act in a threatening and possessive way towards the complainant, although you did not physically assault her again. The next morning you left the hotel room before her, and the complainant was later collected from the hotel by members of her family. She reported the matter to the police the same day.
The stalking conduct which constitutes count four on the indictment commenced the following day and continued thereafter for a period of seven days. During that time, you constantly attempted to contact the complainant by telephoning her, and sending her text messages on numerous occasions. I have been provided with a sample of the text messages. They demonstrate an apparently obsessive persistence in seeking to bend the complainant to your will. There is a mixture of repeated threats and emotional manipulation, all of which are clearly designed to persuade the complainant to continue a relationship with you. It would seem that on occasion the complainant did engage in conversation with you about the future. However, during this period, she also felt upset, scared and frightened and on at least one occasion, told you to leave her alone.
This conduct, of course, was in breach of the family violence order. Further, you knew that by at least 13 August, that the police were investigating the assaults which taken place at the hotel. None of this deterred you from your vigorous pursuit of the complainant.
To your credit, on 19 August, you voluntarily surrendered to and engaged in an interview with police. You have been in custody since then.
Count five on the indictment relates to your efforts while in prison on remand, to instigate your father to contact the complainant for the purpose of persuading her to refuse to give evidence against you. Over a two-month period commencing a few days after your remand in custody, you telephoned your father on numerous occasions for this purpose. Your father is elderly, and was living in residential care because he was unable to live independently. He suffers from epilepsy and a brain injury. He was reluctant to help you. On number of occasions, he told you that he did not want to get involved. However, you were also persistent in your efforts to persuade him to do what you wanted, and again relied on a combination of overbearing conduct and emotional manipulation. He attempted to contact the complainant, at your urging, on numerous occasions during the relevant period, although was only successful in actually making contact with her a couple of times. He also forwarded four letters to the complainant. Each had been authored by you. Once again, all of these attempts to indirectly contact the complainant were contrary to the family violence order. Some of the contact involved attempting to persuade the complainant to withdraw the charges. Of course, she was not in a position to do this because the prosecution of charges is a matter for the prosecuting authorities. It is clear, though, and I accept, that your ultimate aim was to persuade her to refuse to testify against you. Needless to say, although she did not ultimately have to testify against you, you were unsuccessful in achieving your aim.
The complainant’s impact statement attests to ongoing impact of a nature which is to be expected from family violence of this type. She is traumatised by her experience, and has ongoing fear and anxiety. She did not suffer ongoing physical injury. The result of the assaults was bruising and a black eye, and I have seen the photographs in relation to that today. However, the experience of being smothered in circumstances where she reasonably believed that you were trying to kill her, must have been terrifying and can be expected to have resulted in ongoing trauma. Further, it was inevitable that the impact on her would affect her children and this is also attested to by her in her victim impact statement.
You are 41 years of age. You have a significant criminal history which until 10 years ago largely consisted of traffic offences, and some offences involving police which were committed many years ago. However, since 2009 there has been a concerning history of family violence. In 2009 and 2010, you were sentenced on two occasions to wholly and partially suspended terms of imprisonment for family violence offending which included several breaches of family violence orders. Some of this conduct was committed in breach of the terms of suspension of sentences of imprisonment. You were also convicted and sentenced for the crime of stalking. This was related to family violence offending but involved a relative of the family violence complainant. There is then a significant break in offending, which I acknowledge, until 2017, when you were again sentenced to imprisonment for numerous breaches of family violence orders. You were subsequently sentenced for assaulting the complainant and breaching the restraint order as I have already described. I note that the assault for which you were sentenced on that occasion was in breach of a suspended sentence imposed for other family violence offences.
I have been provided with a forensic mental health report. This report records your long-standing alcohol use disorder and some aspects of your personality, which the author believes result from impaired attachments in childhood, and which detract from your capacity to form sustained healthy relationships. However, in my view, there is no evidence of significant mental illness apart from ongoing depression and anxiety. Although depression and anxiety is the basis for the disability support pension which you receive, the author of the report describes these conditions, at least as at the date of his report, as “mild”. I am not satisfied that there is any realistic direct relationship between them and your ongoing family violence offending in the sense that they have a causal relationship with respect to that offending. Of course, they do provide context in which the offending occurred and probably provide some explanation of your inability to control your conduct in the sense of complying with court orders, and the terms of suspended sentences. In my view, there is nothing in the findings which significantly mitigates your culpability, although I do note that it does provide some explanation and context for your conduct.
The overall course of conduct described above, and represented by the charges to which you have pleaded guilty, represents serious criminality. The assaults were brutal, and perpetrated against someone who had placed herself in a vulnerable situation, because she had, despite your past misconduct, decided to trust you. Your conduct was in clear breach of that trust. Further, your actions, particularly holding her face into a pillow for a prolonged period, caused her reasonably to believe that she was under lethal threat. The stalking conduct and your attempt to interfere with the complainant as a witness, was perpetrated on a continuous basis over a prolonged period and compounded the impact upon her. There is also the question of the significant pressure to which you subjected your elderly and infirmed father. I regard this as an aggravating feature in respect of count 5, although I note what your counsel has said today about your remorse in this regard, I accept that as you sit here today you do have that remorse, but I also note that the weight to be attributed to your claims of remorse is relatively limited given the prolonged period of time over which you subjected your father to that pressure.
It is clear that a sentence which emphasises personal deterrence is called for in this case. A matter of considerable concern is your brazen defiance and ongoing refusal to be bound by lawful orders, particularly family violence orders. In the circumstances of this case, the fact that the complainant was receptive to some of the contact, and agreed to spend the night with you in the hotel, notwithstanding the existence of the order, does not, in my view, mitigate your culpability to any significant extent. You had been previously sentenced to periods of imprisonment for breaching orders and well knew that they were binding on you, notwithstanding agreement from her. Other aspects of your conduct which suggest the need for an emphasis on personal deterrence include the fact that you commenced this course of conduct soon after being released from custody for similar offences, and while subject to a suspended sentence, that you continued with the stalking after you became aware that police were investigating the assaults, and your perpetration of the final crime over a prolonged period while in custody.
There is very little that has the capacity to mitigate the sentence. I think you should receive credit for the plea of guilty which should be taken as a plea entered at an early opportunity, given that it was indicated soon after the prosecution determined not to proceed with one serious crime on the indictment. I again say that your claim of genuine remorse and insight is acknowledged, and I accept that you have done the work that has been claimed by your counsel while you have been in prison, and that this does indicate a degree of insight, but these claims are to be balanced against the nature of the offending conduct, which occurred in the context of your prior offending, and seems to me to have involved repeated deliberate breaches of orders. It goes without saying that your intoxication at the time that you perpetrated the assaults cannot mitigate or excuse your culpability for that conduct, although again I accept that intoxication does explain your commission of these offences.
I will take into account the work that you have done in prison, I note that you have hopes for the future and I hope that this is sufficient to motivate you to seriously pursue a course of rehabilitation to address the deficits in your personality and character which seem to underlie your offending conduct, and to ensure that you comply with the orders that I impose on you. I will provide for rehabilitation by making provision for your early release on parole.
The orders I make are these. You are convicted of each of the crimes and offences to which you have pleaded guilty. The suspended sentence of two months’ imprisonment imposed on you by a magistrate on 24 July 2018 is activated. It will be backdated to take effect as of 19 August 2018, and you will not be eligible for parole in respect of that two month sentence.
In respect of the crimes and offences to which you have pleaded guilty, you are sentenced to a global term of two years’ imprisonment. That sentence will be served cumulatively upon the activated suspended sentence. I order that you not be eligible for parole until you have served one half of that sentence.
For the purpose of s 93A of the Sentencing Act I note that the total sentence imposed on you is a term of two years and two months’ imprisonment, and the total period which you must serve, before becoming eligible for parole, is a period of 14 months. That 14 month period dates from 19 August 2018.
For the purpose of s 13A of the Family Violence Act 2004, I direct that, with the exception of count five on the indictment, which I do not regard as a family violence offence, each of the crimes and offences of which you have been convicted be recorded on your criminal record as a family violence offence. I note that I have already made an indefinite family violence order which is binding on you as from the time that I made it.