Director of Public Prosecutions v Johns
[2019] VCC 131
•8 February 2019
| IN THE COUNTY COURT OF VICTORIA AT HORSHAM CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00574
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMANTHA IRENE JOHNS |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2019 | |
DATE OF SENTENCE: | 8 February 2019 | |
CASE MAY BE CITED AS: | DPP v Johns | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 131 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trial – Sentence – Causing serious injury recklessly in circumstances of gross violence – Criminal damage.
Legislation Cited: Sentencing Act 1991
Sentence: 7 years imprisonment with a non-parole period of 5 years imprisonment; 114 days pre-sentence detention; Licence and permits disqualified for 4 years and 464ZF order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G Hevey | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J Lowy | Docherty Legal |
HIS HONOUR:
1
Samantha Johns, on 18 October 2018, a jury convicted you of causing serious injury recklessly in circumstances of gross violence. The maximum penalty for this offence is 15 years’ imprisonment. Pursuant to s.10 of the Sentencing Act 1991 (“the Act”), a non-parole period of not less than 4 years must be fixed under s.11 of the Act, unless I find under s.11(10A) of the Act that a special reason exists for not doing so. The jury also convicted you of criminal damage to a prime mover and trailer owned by Robin Gericke. (Charge 4).
The maximum penalty for this offence is 10 years’ imprisonment.
2 Before moving to the evidence that supported the convictions, a brief chronology of the prosecution is required:
·Your offending occurred on 23 May 2014.
·You were arrested and interviewed on 24 May 2014 and told investigators that you could not recall how the collision occurred.
·You were charged on summons on 22 July 2016.
·A committal hearing took place on 21 March 2017.
·A trial commenced on 10 October 2017 but aborted two days later, a matter to which I will return.
·Your second trial commenced on 1 October 2018.
·The jury returned its verdict on 18 October 2018 and you were remanded in custody.
·Your plea commenced on 16 November 2018 and was adjourned part-heard.
·Your plea resumed on 28 January 2019 and concluded that day.
3
In respect to the aborted trial, the victim of Charge 2, Mr Robert Stocks, during the course of giving evidence in the afternoon exhibited unusual behaviour by staring into the middle distance seemingly oblivious to his surroundings.
He also gave evidence in an unusual manner which prompted me to inquire of the prosecutor as to Mr Stocks' mental state. I was informed by counsel that as a result of the collision, the prime mover that Mr Stocks was driving disconnected from its trailer and rolled at least once, and the trailer tipped onto its side. Mr Stocks suffered a severe laceration to his scalp but, more importantly, fractured two vertebrae in his neck. I was informed that there had been a preliminary diagnosis that Mr Stocks had suffered an acquired brain injury as a result of the collision and it was apparent to me that he was in no fit state to give evidence and that the quality of his evidence did not do justice to him, nor to you.
4 When the second trial commenced in October 2018, I was informed that the preponderance of medical opinion at that time was that as a result of the fractures to his vertebrae, Mr Stocks suffered from chronic pain which caused him sleeplessness and depression. Mr Stocks’ fatigue and depression had the effect of reducing his ability to maintain concentration generally and particularly for the purposes of giving evidence. Accordingly, by consent, Mr Stocks’ evidence was pre-recorded in morning sessions only, prior to the empanelment of the jury.
5 In respect to the offending, at the time of the offences you lived in Murray Bridge, South Australia. Your victim, Robert Stocks, was a truck driver who lived in Naracoorte and worked as a driver for Gericke Bulk Handling, a family-owned transport company based in Naracoorte, South Australia. Mr Stocks had worked for Gericke Transport for 15 years.
6 You had known Robert Stocks from around 1988 or 1989 when you were aged 17 years. Your acquaintanceship was initially of limited duration but was rekindled in or around 2011 or 2012 and remained until the collision.
7 It was the prosecution’s case consistent with the evidence, that on 23 May 2014 you intentionally drove your car onto the wrong side of the road and into the path of your victim’s truck as he was travelling west along the Wimmera Highway approximately 17 kilometres east of Edenhope. You did so with the intention of colliding with the truck and so causing it damage, while foreseeing the probability that by your deliberate action you would cause serious injury to your victim, Mr Stocks.
8 The right-hand side of the Camry sedan that you were driving struck the right-hand steer wheel of the prime mover and caused the truck to roll. Mr Stocks suffered the injuries that have already been outlined and he spent a number of days in hospital followed by three months in rehabilitation, and then he was cared for by his brother in Melbourne for six months.
9
Briefly stated, there was a sexual relationship between yourself and Mr Stocks from about 2011 or 2012 until the day of the collision. Your affection for
Mr Stocks was not reciprocated by him and he regarded the relationship as no more than a sexual one, and this caused you great hurt and frustration.
You made threats to both Mr Stocks and his daughter to the effect of:
·"I'll take you out. I'll wait until you've got a load of petrol and I'll take you out."
·"I'll take you out and will kill you."
·"If I can't have you/him, no one will."
10 You were known to have followed the victim’s truck as he was going about his lawful business. On the day immediately prior to the collision, you had followed your victim to Melbourne, waited overnight for him at a truck stop near Rockbank, and as he passed you at that location the following day, the day of the collision, you followed him on his trip back towards Naracoorte.
11
You overtook the victim’s truck and eventually travelled west along the Wimmera Highway in the direction of Naracoorte. At some time reasonably proximate to the happening of the collision, you did a U-turn and travelled in an easterly direction towards Horsham along the Wimmera Highway.
You approached the victim while he was stopped at a parking bay at Mount Arapiles and, according to the victim, threw the controller to his garage, your only means of access to his home, at him, informed him that you were pregnant to him, threatened to kill him and sped away from him in a westerly direction towards Naracoorte.
12 The victim continued his trip towards Naracoorte heading west on the Wimmera Highway when he observed two oncoming vehicles. The first vehicle was a police vehicle driven by Senior Constable Darren Ferluga. The second vehicle was your blue Toyota Camry. I have already dealt with your driving in respect to your offending and the collision. It is of note that Senior Constable Ferluga recalls seeing a blue coloured Toyota near the intersection of Muddy Lake Road, some 14 kilometres east of Edenhope, about three kilometres from the collision scene. It was stationary on the northern side of the highway and facing in an easterly direction. Shortly thereafter, Senior Constable Ferluga passed the victim’s truck, and drove to the Maryvale Corner, and began to perform radar patrol duties.
13
At about 5.39pm, Senior Constable Ferluga received a message via police radio to attend the collision. He arrived at the scene at about 5.41pm and observed your Toyota Camry sedan in the centre of the westbound lane of the Wimmera Highway approximately 150 metres east of Hausler’s Road. Your vehicle was facing west towards Edenhope. Your vehicle was extensively damaged.
The front right wheel and suspension of your motor vehicle was missing.
The driver’s side panels and doors had been peeled away from the vehicle and both air bags in the vehicle had been deployed. West towards Hausler’s Road was the semitrailer that was blocking most of the highway. The trailer was lying on its side, facing in a northerly direction. The prime mover was facing in the same direction in the intersection, and was on its wheels. The cabin of the prime mover was severely damaged. The tyre from the right steer wheel was missing.
14 As a result of the collision, miraculously, you suffered only very minor injuries.
15 The damage caused to the prime mover and trailer was to “write them off”. (Charge 4).
16
Tendered as Exhibit A were the impact statements of Robert Stocks.
He is heavily medicated for pain relief that appears to have little effect on him. His pain, stiffness and restriction of movement means that he no longer lives a normal life. He has lost his job as a truck driver. His constant and severe pain cause him sleeplessness. He experiences fatigue. He experiences flashbacks of the collision. He has lost the ability to concentrate and his memory has been adversely affected. His is depressed and has no interest in life. He has been obliged to spend money altering his home to accommodate his present state of ill health, and he finds that he is forgetful as well as being fearful of leaving his home. In short, Mr Stocks has been profoundly and permanently adversely affected by your conduct.
17
Tendered as Exhibits B and C were the Victim Impact Statements of Robin and Matthew Gericke respectively. Mr Robin Gericke is the second generation of his family to run Gericke Transport. He assesses the loss to the business as being in the order of $899,000. The loss compelled him to contribute a large part of his life savings to the business to allow it to continue to operate.
The collision and its consequences on his business are continually on his mind. He attributes his current ill health to the worry caused to him as a result of the collision.
18 Matthew Gericke is the third generation and manager of the Gericke Transport business. He deposed as to the adverse effect that the consequences of the collision have had upon his father Robin Gericke’s health. The losses suffered by the business caused the sale of personal assets to keep the business afloat. Your actions have adversely affected the financial position of a third-generation family business and the health of its elder statesman.
19 Tendered as Exhibit 1 on the plea was the report of Warren Simmons, psychologist, dated 8 November 2018. Your intellectual ability was assessed at the lowest average range without being in the disabled area. You informed Mr Simmons that you could only read and write to some extent.
20 You are 47 years of age and grew up in Jervois, South Australia. Both of your parents worked and your family struggled financially. You described your childhood to Mr Simmons as “all right”. In your childhood and early adolescence you were an active member of the Lutheran Church. You told Mr Simmons that both you and your sister were molested by a neighbour from an early age.
21
You attended the Murray Bridge Secondary College and repeated Year 10 and were asked to leave that school because you were playing truant. You left school at age 15 and worked at various road houses until you formed a relationship with the father of your son, Stephen, who is aged 24 years. Your first partner was an interstate truck driver who you met with when you were
20 years of age. The relationship continued for some six years.
22 You were involved in a motor vehicle collision in 1998 and thereafter cared for your son on a full-time basis until 2007, when you commenced cleaning motel rooms for a period while you completed a Certificate III in Aged Care. In 2009, you commenced to work full time in aged care and this continued until the end of 2016 when you were no longer able to work. Since that time, you have had both hips reconstructed.
23 When you were about 30 years of age, you formed a second relationship, again with an interstate truck driver, and this relationship lasted about three years. In about 2011 or 2012 you formed a relationship with your victim, Mr Robert Stocks. In respect to your first relationship and the relationship that you had with Mr Stocks, you asserted to Mr Simmons that you were the subject of domestic violence.
24 In respect of the relationship with Mr Stocks, you instructed Mr Simmons that you became pregnant to Mr Stocks on three occasions with the first two pregnancies ending in miscarriage. Your third pregnancy resulted in the birth of your daughter, Sophia, who is aged four years. Your daughter is presently being cared for by your mother, a matter to which I will return shortly.
25 Tendered as Exhibit 2 were a bundle of references and certificates which demonstrate you to be a caring mother to your children and a loving and caring sister and daughter. As well, you have proved to be a reliable, punctual and enthusiastic worker within the aged care industry in which you worked.
26 Contained within Exhibit 2 is a letter from your parents who were 71 and 76 years of age respectively as at October 2018. They write of the difficulties that they have in caring for your daughter, Sophia.
27 On the return date of your part-heard plea, tendered as Exhibit 3 was the report of Dr Yiu, paediatrician, dated 25 December 2018. He consulted with your daughter, Sophia, in the presence of your mother. Your mother described Sophia as usually in good physical health and that most of her development had been good except for her speech. Your mother noted that Sophia had exhibited significant changes in her behaviour as a result of her realisation that you will not be able to return home to her for some time. Sophia has been physically aggressive at home, sleeps poorly at night and has nightmares that appear to be linked to your absence. The only concern of a medical kind that Dr Yiu refers to is Sophia’s trouble in talking in sentences and the fact that most of her words are not clear. Dr Yiu reports that Sophia is yet to consult a speech pathologist.
28
Tendered as Exhibit 4 were health summaries in respect to your parents.
Your father is 77 years of age and in very poor health. By reference to your father’s patient health summary, he is medicated for kidney disease, heart disease, asthma, blood pressure and pain relief. In April 2018, he underwent a total knee replacement of his left knee and subsequent to a short stay in hospital was transferred to a rehabilitation facility for ongoing physiotherapy as your mother was too ill to assist him at their home in Jervois. Likewise, your mother is in very poor health and is medicated for high blood pressure, thyroid deficiency, gastric reflux and stroke prevention, amongst other ailments.
29 On the return of the plea, I was informed by Mr Lowy of counsel, who appeared on your behalf that your mother has moved from her home to your home address in Murray Bridge. This move was motivated by a desire to keep Sophia in her own home. This leaves your father alone in your parents’ family home. Mr Lowy further informed me that the child, Sophia, is yet to be toilet trained at the age of four years and still uses a dummy.
30 In short, Mr Lowy submitted that your elderly and infirm parents are compelled to care for a child aged four with special needs in circumstances where they are ill equipped to do so. Further, Mr Lowy submitted that your parents’ financial position is such that it is unlikely that they will ever be able to travel with your daughter to visit you at the Dame Phyllis Frost Centre.
31 In respect to Charge 2, Mr Lowy submitted that there were substantial and compelling circumstances that are exceptional and rare and that justify not imposing the minimum non-parole period prescribed for the offence of causing serious injury recklessly in circumstances of gross violence. (See s.10A(2)(e) of the Act).
32 The matters relied upon by Mr Lowy were:
·your poor health, having undergone a double hip reconstruction last year and the pain that you continue to suffer as a result of these procedures when coupled with your osteoarthritis;
·the poor management of your pain and physical health whilst at the Dame Phyllis Frost Centre on remand;
·your low intellect;
·the delay in the prosecution of this matter which is not in any way referable to you;
·your prior good character;
·the effect on your daughter and your parents as a result of your imprisonment;
·the effect on you of separation from your daughter as a result of your imprisonment;
·the trauma that you have experienced in your life, being both sexual and physical abuse; and
·your low risk of reoffending.
33 Whilst all of these matters are factors that impact on both the fixing of a head sentence and a non-parole period, and may in combination not be aptly described as “run of the mill” factors, they do not meet the threshold set by s10A(2)(e) of the Act.
34 Should I be wrong in my assessment of the matters relied upon by your counsel, then should I have been considering a sentence in respect to Charge 2 alone, the application of sentencing principle would have resulted in a non-parole period in the order of 4 years.
35
In respect to your offending, each charge is elementally different and each charge has a different victim. Each charge is directed at a different vice.
Your offending in respect to each crime, although arising out of one act, are serious examples of crimes of the kind. By your conduct, you have caused profound but different harm to each of your victims.
36
You stood your trial and accordingly are not entitled to any of the benefits that would accrue to a person who has pleaded guilty. You have evidenced no remorse. Of course, you are not be punished for standing your trial.
The circumstances that brought about your offending are unusual but not unknown to the criminal law.
37 Taking into account the maximum penalties for each of the offences of which you have been convicted, the seriousness of your offending and its consequences, together with each of the matters relied upon by your counsel, whilst I am satisfied because of your antecedents that you are unlikely to reoffend and that separation from your daughter and the circumstances of her care during that separation will make your time in custody difficult, denunciation, just punishment and general deterrence must play important roles in arriving at an appropriate sentence in your case.
38 At this stage, could I confirm the pre-sentence detention? By my calculation, 114 days?
39 MR HEVEY: That is mine as well, Your Honour.
40 MS CONWELL: That's correct, Your Honour.
41 HIS HONOUR: Thank you very much. Would you please stand?
42 By this sentence, I must denounce your conduct. I must punish you and deter others from committing crimes of the same or similar kind. I must look to your rehabilitation. Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to you, I sentence you as follows:
43 On Charge 2, causing serious injury recklessly in circumstances of gross violence – 6 years’ imprisonment.
44 On Charge 4, criminal damage – I sentence you to 2 years’ imprisonment.
45 I order that 12 months of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 2.
46 This results in a total effective sentence of 7 years’ imprisonment.
47 I fix the period of 5 years’ imprisonment as the period of imprisonment that you must serve before you will become eligible for parole.
48 I declare that you have spent 114 days by way of pre‑sentence detention.
49 I cancel all licences and permits to drive held by you under the Road Safety Act 1986 and I disqualify you from obtaining any such licence or permit for a period of 4 years.
50 Would you please be seated?
51 Now, as I understand it, there is an application for an intimate sample pursuant to s.464ZF of the Crimes Act. Is that so?
52 MR HEVEY: Thank you, Your Honour.
53 MS CONWELL: By consent, Your Honour.
54 HIS HONOUR: Is that - - -
55 MS CONWELL: By consent.
56 HIS HONOUR: That is by consent. Thank you. Now, Ms Johns, you may remain seated. I have made an order for the taking of an intimate sample, or forensic procedure, from you, and that will be in the form of a scraping from your mouth. I have made this order because the seriousness of the circumstances of the offending warrant the order, that the order is by consent, and that the granting of the order is in the public interest. I must inform you that if, at the time of request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then police may use reasonable force to enable that forensic procedure to be conducted.
57 Are there any other matters?
58 COUNSEL: No, thank you, Your Honour.
59 HIS HONOUR: I would like to thank the people in Horsham for attending and I will cut the link with you. Would you remove the prisoner, please?
60
Ten o'clock, 10.30 - no, 10 o'clock, Monday morning, I beg your pardon.
Ten o'clock.
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