Director of Public Prosecutions v Johns

[2015] VCC 840

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAM JOHNS (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 June 2015
CASE MAY BE CITED AS:	DPP v Johns
MEDIUM NEUTRAL CITATION:	[2015] VCC 840

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy
For the Offender	Mr N. Howard

HIS HONOUR: 

1Sam Johns, you were convicted by a jury of six charges of rape and one charge of causing injury intentionally.  The complainant in each of those charges was your wife, or your separated wife depending to which time the charge refers.  The behaviour commenced in a period between 1 May 2001, and the 31 May 2001. The last charge deals with a rape conviction on 1 January 2011.

2Briefly stated, the 2001 conviction arose out of an incident to do with socks, wherein you pushed Ms Green'[1] head into a laundry basket and then anally raped her.  Charge 2, which occurred in January 2004 and is aligned with charge 3, was an incident where you grabbed Ms Green by the hair, smacked her into the carpet and held her on the back of the neck.  You then vaginally raped her. 

[1] Green is a pseudonym

3Charge 4, relating to a period in May of 2004, was an incident of vaginal rape which caused her to go to the Frankston Hospital bleeding from the vagina.  You had been pulling at Ms Green' legs to get them open so you could commit the sexual act.  Charge 5 occurred in April of 2010, at Lake's Entrance.  At that time, you had been separated from the complainant and there was an offer for you to spend time with your family at a place at Lake's Entrance.  The place was a time-shared residence connected to Ms Greens' sister.  Ms Green asked you to come down in an effort to provide time for yourself and your children.  You took advantage of that, and after she came out of a shower, you grabbed her and vaginally raped her. 

4Charge 6 occurred on 25 December 2010 at Bundoora, where Ms Green and the children had come over to the place where you were then residing to spend Christmas with you.  It was proposed that she sleep in a tent in the backyard.  You came into that tent at night time and vaginally raped her.  On 1 January 2011, there was an incident where you handcuffed Ms Green on one wrist to a part of the bed, and then anally raped her. 

5You had no other criminal history.  On your behalf, your counsel submitted that I take into account your otherwise good character, that is your character outside the marriage.  During the course of the trial, evidence about what else was occurring in the marriage between you and your wife and on occasions between you and your children was led as contextual evidence.  He submitted references from people who had known you recently and people who have known you for quite a period of time.  Indeed, you have remarried and have a new child from that marriage.  Your wife is in a substantial position in the Kiribati government.  I am asked to take into account your otherwise good character. 

6I accept that outside the marriage, it would seem, that your character was regarded by others as impeccable.  You were a member of the Latter Day Saints Christian community here in Melbourne.  However, as I remarked during the plea, I very much doubt whether it is within the principles of the latter day saints that a person espouse the principles of Christianity on a Sunday and rapes his wife on other days.

7Ms Green read her victim impact statement in court, and I have taken that into account.  It is put that there has been an issue of delay and certainly there has been a year or two since you were charged.  Of course during the period of some ten years prior to being charged, on the evidence in the case, it can hardly be said that any delay in charging you resulted in efforts at rehabilitation if one looks at the evidence of Ms Green.

8You are to be sentenced as a serious sexual offender from charge 4 onwards.  Thus I sentence you in accordance with the provisions of the Act relating to that.  However, the prosecution do not seek a disproportionate sentence and I will not impose one.  The prosecution also do not seek that you be rendered under the Sexual Offenders Act so that will also not occur.

9I have taken into account your background as outlined by your counsel.  These are very serious charge, unfortunately all too familiar to the judges who sit in this court.  The position of a husband in a marriage should be that of equal partners, not of domination and inflicting your way on your wife.  Not only did you do that, but when you were separated under the guise of spending time with your children, you further breached the trust and committed further charges. 

10You have shown no remorse.  I have read those references and taken them into account but I have to balance that against the evidence in the case.  But certainly you can rely on the fact that you have no other criminal history and I have taken that into account.  Your counsel submitted that a look at the issues of totality and proportionality and I have done that.  General deterrence; that is, I must impose a sentence that tells the community that if you offend in this way, there will be severe consequences.  Specific deterrence; that is, I must impart to you the view that you cannot reoffend in this way.  It has relevance to your offending here because of the time-span of the offending, a period of approximately ten years.  My sentence has to reflect my denunciation of your behaviour and I have already expressed that.

11I have taken into account the fact that you have no other criminal history.  I have looked at the issues and taken into account totality and proportionality.  Both counsel agree that in this type of offending, the only outcome should be an immediate custodial sentence and I agree with that because of the serious nature of the offending. 

12Taking into account all the matters set out in s.5 of the Sentencing Act and all the submissions made by both counsel, I impose the following sentences. On charge 1, I sentence you to a period of imprisonment of eight years. On charge 2, a term of imprisonment of two years. Charge 3, six years, charge 4, six years, charge 5, six years, charge 6, six years, charge 7, ten years. I fix charge 7 as the base sentence and direct that one year of charge 1 and six months of each of charges three, four, five and six be served cumulatively with each other and upon the base sentence. That makes a total effective sentence of 13 years. I direct that you serve a period of ten years before being eligible for parole.

13I declare that the three days that you have already served be reckoned under s.18 of the Sentencing Act be part of the term of imprisonment that I have just imposed. Are there any other matters I need to attend to, counsel?

14MR D'ARCY:  No, Your Honour.

15HIS HONOUR:  Mr D'Arcy, Mr Howard?

16MR HOWARD:  No, Your Honour.

17HIS HONOUR:  Thank you.  Remove Mr Johns, thank you.  I'll just sign those orders.  Court be adjourned until 9.30 next Monday.

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