Mother of four left with Brain Damage
The Age
Adam Cooper
March 19,2015
A woman was left with an acquired brain injury when she was pushed onto a road by her drunk boyfriend, and now cannot care for her four children by herself, a court has heard.
But a County Court judge said Benjamin James Day's act of pushing over Kimmie Kingdon during an argument on September 14 last year did not constitute an act of domestic violence because there was no history of tumult between the pair.
Day was "mulling" about being denied access by a previous girlfriend to his child when he began arguing with Ms Kingdon and pushed her with two hands and she fell onto a road in Narre Warren and hit her head.
The couple had attended a party in the area.
Ms Kingdon, 33, required surgery to remove part of her skull to ease the swelling on her brain caused by the injury, and needed to be taught how to eat, drink, walk and talk, the court heard. She could no longer use her left arm.
Judge Douglas told the court Ms Kingdon had said in a victim impact statement she required the help of family members to care for her and her children, and felt like a burden who had "lost all faith in myself and my abilities and ... feel worthless and pointless".
The mother of four sometimes regretted having fought for her life while she was in intensive care, the court was told.
Day, 27, pleaded guilty to one count of recklessly causing serious injury, having previously told police that two men of African appearance, who were seen in the area, were responsible for attacking Ms Kingdon.
"At that stage you were shifting blame to two innocent men to clear yourself," Judge Douglas told Day.
The judge described as cowardly Day's attack on his partner and his refusal to admit the truth until he was encouraged to do so by his mother because police found his story implausible.
Day dragged Ms Kingdon off the road before he left the scene.
The court was told Day had previous convictions for false imprisonment and making a threat to inflict serious injury, related to threats he made to another former girlfriend in 2009, when he told the woman he would cut off her legs and douse her in petrol.
Judge Douglas said Day was charged with recklessly injuring Ms Kingdon because there were no witnesses, the victim could not recall the incident and that he did not intend to harm her.
The judge accepted Day's claim the push was spontaneous and borne out of anger that he was being denied access to his child. But while Day had expressed sorrow for what happened to Ms Kingdon, he had only a limited insight into the impact of his actions.
Judge Douglas sentenced Day to spend two-and-a-half years in jail, and serve a minimum of 15 months. He has already served more than 180 days in custody.
The judge took into account his guilty plea, depression and post-traumatic stress disorder, which stemmed from being kidnapped and assaulted by an associate in 2012.
She said Day, who had a history of drug use and alcohol abuse, served as a warning to others of the potential implications of confronting someone after drinking too much, because the combination of "anger and intoxication is a lethal cocktail"
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