STATE OF TASMANIA v SAMUEL JOHN JOHNSON 26 JULY 2021
COMMENTS ON PASSING SENTENCE BRETT J
Mr Johnson, you have pleaded guilty to 3 counts of assault.
You committed these crimes on 28 September 2019. The person you assaulted was your mother. You had attended a grand final function at her house and had been drinking alcohol for most of the day. By the time that you committed these assaults, you were extremely intoxicated. Before this happened, you left the house to drink with a friend, but returned at about 11:30pm. Your mother and her partner were present. Before returning to the house, you had been at the police station with your friend, because he had been arrested for drink driving. You wanted your mother’s mobile phone to call a taxi for the friend, and, in your drunken state, you took it from her. She snatched it back, and you reacted with violence. You threw her to the floor and punched her to the head and face multiple times. You then slammed her repeatedly onto the floor. You then grabbed her by the throat and started to strangle her. She was unable to breathe and felt as if she was going to lose consciousness. You were yelling abuse at her, including by asking her if she wanted to die. The complainant’s partner tried to pull you off but was unable to do so. You interrupted your assault on your mother to push her partner away and then returned to the attack on your mother. She was still lying on the kitchen floor where you had left her. You again punched her repeatedly and choked her two more times. On each occasion the pressure around her throat lasted for approximately 10 seconds and caused the commencement of loss of consciousness. You then grabbed a pair of scissors, pointed the blades towards the complainant as she lay on the ground and yelled at her “do you want to die”. Understandably, the complainant was terrified and thought that you were going to stab her.
You then caused some damage to the interior of the house. Eventually, you left the house and drove away in your mother’s car.
The complainant was taken to hospital. She suffered tenderness and bruising to her ear, face, neck and elbow. A CT scan revealed an incomplete fracture of her nose.
You are 24 years of age. You live with your partner and three children, aged 5, 3 and 2. Your employment history consists of casual labouring roles. You were born in Latrobe and raised by your mother. You met your father once in your life and that was when you were 5 years of age. Your mother has had a long-standing addiction to alcohol and illicit drugs, although she has not used these substances for the last 4 to 5 years. However that addiction, and her use of those substances, has obviously affected your development. You also have a long-standing problem with alcohol. This commenced when you were 13 years of age.
A matter of real concern to me is the apparent link between excessive alcohol consumption and violent offending. You have a relatively lengthy criminal history, which includes being dealt with as a youth for various offences, including assaults, damaging property and resisting and obstructing police. You have committed similar offences as an adult. Your counsel confirms what is probably obvious, that your problem with alcohol accounts for much of your criminal history, including the assaults. I note that your first involvement with the law was a caution for common assault when you were 14. Your alcohol problem was certainly related to the commission of these crimes.
Because of your intoxication, you have no recollection of what you did on this occasion, but the violence was extreme, brutal and very dangerous. Your intoxication and rage meant that you clearly had little, if any, capacity to moderate or judge the force which you used, including in respect of the manual strangulation, and this could so easily have resulted in death or serious injury to your mother. I have no doubt that with the benefit of sobriety, you have experienced immediate and genuine remorse in relation to your conduct. This is evidenced by your early plea of guilty in the Magistrates Court. It is also confirmed by your mother in a letter which she has written to me, and has been handed to me during the course of the proceedings. In the letter, she attests to significant and demonstrable change in your conduct, and treatment of others. It is clear that she has forgiven you and is very concerned for your welfare. She has also made what I regard as a genuine judgment that you have appropriate insight into the seriousness of your conduct and its link to alcohol, and are committed to reform. Your counsel tells me that you have not consumed alcohol since this incident. It is obvious to me, and hopefully obvious to you, that you have a serious issue with alcohol, and that you can never safely consume alcohol again.
There is no doubt that the principles of general deterrence are important in the assessment of this sentence. The brutality and dangerous nature of this violence, perpetrated in a domestic setting, is of enormous concern. Further, having regard to your history and the link between violent offending and alcohol, specific deterrence is also important. Finally, I think that community protection is also a consideration. The real issue is the extent to which rehabilitation should be emphasised in this sentence. I note that when you were sentenced by this Court on the 11 May 2016 for offences related to violent offending, which were committed while you were under the influence of alcohol, according to the comments on passing sentence of the sentencing judge, you acknowledged your problem with alcohol and its link to violent offending, assured the sentencing judge that you had not had a drink for in excess of 6 months, and appeared to be committed to rehabilitation. You were sentenced to a term of actual imprisonment, with the judge noting that prior suspended sentences had not had the intended effect. You committed the crimes with which I am dealing under the influence of alcohol three years later. Clearly, irrespective of your assertions and promises about rehabilitation, the risk of relapse and re-offending remains significant.
However, although your mother’s opinion and forgiveness is not determinative, it does provide strong support for a conclusion that there is a viable opportunity in this sentence to promote rehabilitation. There is no question that if emphasis is not placed on rehabilitation, an actual and significant term of imprisonment is the only appropriate sentence. The objective seriousness of the offending and the considerations of general deterrence, specific deterrence and community protection compel this conclusion. However, and despite what has gone before, I think that rehabilitation should be emphasised in this sentence. Your successful reform is the best way to avoid future offending. But your commitment must be absolute and long-term. The concern, of course, is that you will relapse, and this will create a risk of future offending. Ultimately, my conclusion is that you should be given the opportunity to pursue and achieve rehabilitation. You are unlikely to do this in jail. I am heavily influenced by your mother’s attitude, and her judgment about the opportunity for your reform.
The question which then arises is the best way to promote and support rehabilitation while maintaining an appropriate deterrent effect in the sentence. In the particular circumstances of your case, I have decided that home detention is appropriate. A report has assessed your proposed residence as suitable, and I think that living there will support your abstinence from alcohol. It will be a lengthy sentence and this will provide some punitive impact. Further, a contemporaneous community corrections order will provide supervision as recommended in the report.
Accordingly, the orders I make are as follows:
1 You are convicted of the crimes to which you have pleaded guilty.
2 I make a home detention order, which will have an operational period of 18 months, commencing from 10am tomorrow. The home detention premises will be at [address]. I note that the core conditions of the order contained in s 42AD(1) will have effect during the operational period of the order. This will include s 42AD(1)(g), which is the provision requiring submission to electronic monitoring. For the purposes of the condition contained in s 42AD(1)(c), I specify that you must, during the operational period, be at the home detention premises at all times on each day of the week, unless you are not there for a relevant reason, as specified in s 42AD(4). The order will also include the following special conditions:
(a) That you must report to a Community Corrections officer at community corrections in Burnie before 10am tomorrow.
(b) That you must maintain in operating condition an active mobile telephone service, provide the details to a community corrections officer and be accessible for phone contact through this device at all times.
(c) That you must submit to the supervision of a community corrections officer as required by that officer.
(d) That you must not, during the operational period of the order, take any illicit or prohibited substances, including:
i any controlled drug is defined by the Misuse of Drugs Act 2001;
ii any medication containing an opiate, benzodiazepine, bupropion, hydrochloride or pseudoephedrine unless you provide written evidence from a medical professional that you have been lawfully prescribed the relevant medication.
(e) That you must not, during the operational period of the order, consume alcohol in any form, and you must submit to testing for alcohol use as directed by a probation officer.
3 I also make a community correction order. You must comply with the order for a period of 18 months, and that period shall commence today. The core conditions of the order require you to report to a probation officer, and you shall do so at the office of Community Corrections in Burnie before 10am tomorrow. In addition to the core conditions, the order shall also include the following special conditions:
(a) you must, during the operational period of the order:
i attend educational and other programs as directed by the Court or a probation officer;
ii submit to the supervision of a probation officer as required by the probation officer;
iii undergo assessment and treatment for drug dependency as directed by a probation officer;
iv submit to testing for drug use as directed by a probation officer;
v undergo assessment and treatment for alcohol dependency as directed by a probation officer;
vi submit to testing for alcohol use as directed by a probation officer;
vii submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer;
viii attend, participate in and complete the EQUIPS addiction program as directed;
xi attend, participate in and complete the EQUIPS aggression program as directed.