Director of Public Prosecutions v Johns

[2024] VCC 1578

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 24-00821

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAYNE JOHNS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	7 October 2024
DATE OF SENTENCE:	9 October 2024
CASE MAY BE CITED AS:	DPP v Johns
MEDIUM NEUTRAL CITATION:	[2024] VCC 1578

REASONS FOR SENTENCE

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Subject:  Criminal law – sentence

Catchwords: Pleaded  guilty to one charge each of Burglary, theft of property, handling stolen goods, theft of firearm – summary offence unlicensed driving early childhood deprivation – Bugmy principles – early drug abuse – frequent imprisonment – early remission from drug abuse – good progress on current CCO

Cases Cited: Bugmy v R [2013]  HCA

Sentence: 18 months CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused	Ms A. Wallace	Dribbin & Brown Lawyers

HER HONOUR: 

1Kayne Johns, you have pleaded guilty to one charge each of burglary, theft of property, handling stolen goods and theft of a firearm.  You have also pleaded guilty to a summary offence of unlicensed driving.

2On 18 April 2023 you and an unknown co-offender drove a stolen car to an address in Cranbourne North.  This was the residence of Sadarif Sachin Kulkarni.  CCTV cameras captured footage which showed the incident taking place at the property.  The car you drove had stolen registration plates.  This is Charge 3, handling stolen goods.

3The car was later found to have been stolen two nights earlier and the registration plates were stolen from another location and placed on the car.

4When you and the co-offender arrived at the house in Cranbourne North you knocked on the door and looked through the front window to see if anyone was home.  You returned to the car and waited there.  The co-offender walked back to you and then went to the back of the house.  He then forced the garage roller door open.  You then reversed the car into the driveway and parked it there.  The co-offender tried to force open the front screen door with your assistance, but this attempt failed.  The front internal door from the garage was then forced open and the co-offender entered the house.  This is Charge 1, burglary.

5You waited in the car while the co-offender brought property from inside the house belonging to the victim to the car.  The property included miscellaneous documents, the victim's passport, driver's licence and bank cards, as well as $700 in cash, a green wooden chest containing assorted jewellery, a Huawei mobile phone and a 2021 black Apple watch.  This is Charge 2, theft.

6The property also included a Mossberg Patriot long arm gun, and that is Charge 4, theft of a firearm.

7You then left, driving the car containing the stolen property, and the co-offender left on a blue Yamaha dirt bike stolen from the address. 

8The value of the stolen property, excluding the dirt bike, was between $12,000 and $13,000.  None of the property was recovered.

9You were arrested on 28 April 2023, you were interviewed and made no comment. 

10You were found to have been unlicensed to drive at the time and were charged with that summary offence.

11The victim provided a very eloquent and succinct description of the effects of the crime upon him in his victim impact statement.  Perhaps this sentence sums it up:  'The sense of safety and normalcy I took for granted has been replaced by a constant undercurrent of fear, affecting every aspect of my life.'

12The victim also stated that he has had trouble sleeping because of the fear of intruders.  He has become isolated, withdrawn from activities he once enjoyed and which he regards as essential for his wellbeing.  His physical and mental health have both deteriorated.  He added that the theft of sentimental personal items which he valued deeply is a constant reminder of the invasion.

13All indictable offences are serious but theft of a firearm is particularly serious, especially so since it has not been recovered.  The maximum sentence is
15 years' imprisonment, as it also is for handling stolen goods.  For the other two indictable offences the maximum is 10 years.  For the summary offence the maximum penalty is six months' imprisonment.

14General deterrence is always an important sentencing principle in relation to such charges and specific deterrence also has a part to play in your case given your criminal history.

15From the age of 14 you were in trouble with the police and appeared in the Children's Court many times for various types of offending, mainly stemming from the drug habit you developed at that early age.  That offending history of course is not to be taken into account as part of your criminal record but it indicates a childhood characterised by the type of dysfunction that I can, and must, take into account according to the principle in the case of Bugmy.

16You were on bail at the time for similar offending which adds to the gravity of the offending in this case.

17You are still a young man aged 25 and you were 24 at the time of the crime.  Sadly, since you turned 18, you have spent about half of the ensuing years in a custodial environment.  Your criminal history is littered with a wide range of offending, including serious driving crimes, assaults, family violence, dishonesty, and as already noted, offending that is similar to the present case.  You were placed on Community Correction Orders twice in the past but failed to engage before re-offending and being remanded again.

18The first five years of your life were spent living mainly with your grandparents as both your parents initially struggled with drug problems.  By the time you returned to your mother's care at the age of six your parents had separated and your mother had re-partnered.  This man became your stepfather and unfortunately he was violent towards your mother and you tried to protect her from it.  You and your mother clashed as well and you often left home and moved between friends' houses as a teenager.  You also lived with your biological father at one stage but he re-partnered and he was preoccupied with the new partnership.  You were not close and now have little contact.

19This background was the genesis of your offending pattern.  Your schooling was disrupted by what your counsel has summarised as bullying, learning difficulties and behavioural disturbances with several changes of schools until you left in Year 9.  While at school, a paediatrician diagnosed ADHD, attention deficit hyperactivity disorder, and Asperger's Disorder, but you did not take the prescribed medication as your father did not condone it.

20After leaving school you had some limited employment with your stepfather in 2020, which may have been interrupted by COVID restrictions, but in any event it occurred between two prison sentences.

21You also experienced some mental health disturbances after leaving school, including four or five psychiatric episodes.  This occurred contemporaneously with the drug abuse which commenced when you were 14, and by the age of 16 you were a regular user of methylamphetamine except when living with your mother, away from your drug associates.

22When the forensic psychologist, Pamela Matthews, assessed you recently in September 2024, so just recently, you had just completed residential rehabilitation two months earlier having been released from prison in February.  A letter from the team leader at the residential program confirmed that you had completed it and engaged very well in the program.

23You are presently on a Community Correction Order imposed by a magistrate in May this year, and an informal progress report indicates that you are progressing satisfactorily, albeit with some instances of failing to attend appointments.  By the time Ms Matthews assessed you, you were living with your mother and had not used drugs or associated with your former friends.  Without a driver's licence and with no access to public transport you were isolated and reported having low self-esteem and struggling to manage stress.  You said you lacked confidence in social situations and Ms Matthews noted reports indicating low/average to borderline cognitive functioning.

24She summed up the effects of drug use upon you as causing your recurrent social and interpersonal problems.  She said important social, occupational and recreational activities were given up or reduced by you because of your drug use, and as I have already noted, you have a limited employment history.  You have continued to use illicit substances in physically hazardous situations such as driving, and you have done so despite your knowledge of having persistent or recurrent psychological problems.

25Looking at your criminal history and your background, Ms Matthews listed a number of risk factors, meaning factors that could lead to you reoffending, including those already mentioned, adding that you need more positive influences in your life.  She suggests that these should come from a range of sources to assist with your emotional, behavioural and cognitive regulation.  It should also include assistance with education and training.  Importantly,
Ms Matthews considers you are currently in early remission from drug abuse, at a stage when you are taking action to address it, and support from a range of sources could build on this and that would be instead of imprisonment, which would be unlikely to further your rehabilitation.

26At the age of 25, while you are no longer strictly a young offender, you are young enough for your rehabilitation to be very important, in the hope that it would be of benefit to you and would protect the community from your further offending.  To that end, a Community Correction Order is the preferable disposition. This was the sentence sought by Ms Grant on your behalf and the prosecution conceded that it is within range.

27You have now been assessed as suitable for a Community Correction Order and that is what I will impose.  It will apply to all the charges and convictions will be recorded.

28The order will begin today and will last for 18 months which means it will continue for about five months after the expiry of the existing order imposed in May. 

29You will be under supervision, and you must continue to engage in the drug treatment you have already started on.  The same applies to treatment for your mental health.

30You must perform 70 hours of unpaid community work in addition to the hours you already have to perform under the existing order.  However, any time you spend in programs may be credited against those hours.

31You must report to Morwell Corrections Office within two working days of today, so that is by 4 pm on Friday.

32If you were to breach this order by non-compliance or by committing an offence that could attract a prison sentence, you could be re-sentenced and it would be less lenient next time.

33If you have a current driving licence or permit it is cancelled and you are disqualified from obtaining a licence or permit for 12 months.

34If you had pleaded not guilty, I would have sentenced you to a total effective sentence of 12 months' imprisonment with a non-parole period of six months.

35Now first of all, Ms Wallace, is there anything I have omitted or neglected?

36MS WALLACE:  No, Your Honour.

37HER HONOUR:  Thank you.  Mr Roper?

38MR ROPER:  No, Your Honour, that covers everything.

39HER HONOUR:  The order is ready for signature.   Ms Wallace, would you like to accompany my associate to the dock with that?

40MS WALLACE:  Yes, Your Honour, thank you.

41HER HONOUR:  That's everything.  Thank you, Ms Wallace.  Thank you,
Mr Roper.

42MS WALLACE:  As the court pleases.  Your Honour, your tipstaff has helpfully informed us that none of defence material was formally tendered on the last occasion, and in those circumstances I would seek to tender all material that was filed.

43HER HONOUR:  All right, just one moment.  Exhibit 1, Madam Associate?

44ASSOCIATE:  Yes, Your Honour, yes.

45HER HONOUR:  Exhibit 1, Ms Wallace.

46#EXHIBIT 1 -   Bundle of defence material.

47MS WALLACE:  Yes, Your Honour.  So I formally tender the defence outline of plea submissions dated 2 October 2024.

48HER HONOUR:  It will be a bundle so perhaps just go through the list.

49MS WALLACE:  Yes, Your Honour.  The email of Tamara Jones dated
23 September 2024.  The letter of Kelly-Ann Fawkner dated 23 September 2024.  The letter to the court authored by Mr Kayne Jones dated 7 October 2024.

50HER HONOUR:  Thank you.

51MS WALLACE:  As the court pleases.

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