Director of Public Prosecutions v Johnson

[2022] VCC 902

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-02440
Indictment M11105270.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE JOHNSON

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2022
DATE OF SENTENCE:	9 June 2022
CASE MAY BE CITED AS:	DPP v Johnson
MEDIUM NEUTRAL CITATION:	[2022] VCC 902

REASONS FOR SENTENCE
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Subject: Criminal     

Catchwords: plea of guilty; one charge of robbery; one charge of possession of a drug of dependence; one summary charge of commit indictable offence whilst on bail.     

Legislation Cited: Sentencing Act 1991 (Vic).

Cases Cited: Younger v the Queen [2017] VSCA 199; Osman v the Queen [2015] VSCA 308; R v Pham [2009] VSCA 3; Worboyes v The Queen [2021] VSCA 169.
Sentence: Total Effective Sentence of 18 months’ imprisonment with a non-parole period of 12 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D. Guesdon	Office of Public Prosecutions
For the Offender	Ms J. Clark	Chris McLennan & Co.

HER HONOUR:

Introduction[1]

[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.

1Luke Johnson, you have pleaded guilty to one charge of robbery on
30 May 2021, one charge of possess a drug of dependence on the same day, and one related summary offence of commit an indictable offence whilst on bail. 

2In short, just after midnight on Sunday 30 May 2021, your victim,
Asadullah Karimi, was walking along a path on Batman Park in the city talking on his mobile phone to his family in Afghanistan when you and another man decided you would rob him.  You disguised yourself by wearing a cap and a bandana over your face.  The two of you approached Mr Karimi from behind, pushed him to the ground then kicked him.  One of you demanded that he give you everything in his pockets and then reached into a jacket pocket and took his car keys and $380 in cash.  One or both of you continued to kick and punch him and you demanded he give you his phone or you would hurt him. 

3Mr Karimi managed to get to his feet and started running away, but the two of you chased him and you threw a glass bottle at him, which fortunately missed him.  You threatened him again, this time saying, in effect, you would kill him if he called the police, before you and the other male ran away.  That is, you threatened him before you and the other male ran away. 

4Mr Karimi did call the police who attended soon after, together with an ambulance.  Police obtained a description from Mr Karimi and five minutes later found you and your girlfriend lying face down in grass nearby.  The other male was not with you although he was seen on CCTV footage running from the scene with you and your girlfriend.  His identity has not been established.

5You were arrested and searched, and located underneath your right hand was a small zip lock bag which contained 0.63 grams of methylamphetamine.  In your black Adidas bum bag was another small zip lock bag which had 1.61 grams of methylamphetamine. 

6The victim was admitted to St Vincent's Hospital on 30 May 2021 and was discharged on 16 June 2021.  This time included a period at a short stay facility adjacent to the hospital.  Your actions and that of your co-offender aggravated a pre-existing injury that the victim had to his arm and hand.  He has had ongoing pain and difficulties since your attack and he has been diagnosed with a suspected functional neurological disorder.

7You were interviewed by police and admitted assaulting the victim, but falsely claimed that that was because the two of you had history and that he had called you a dog.  You denied robbing him or having reached an agreement to do so.

8You were remanded in custody and have been there ever since, which is a total of 375 days, not including today. 

9Your plea of guilty today followed a sentence indication by me on 27 May 2022.  At that hearing, your counsel submitted that the time you had then served was sufficient punishment.  The prosecution did not argue that more time in custody was necessary but submitted you should only be released on a
Community Corrections Order, in effect that a combination sentence was an appropriate disposition.  For the reasons articulated during that hearing and which I will repeat now, I consider that the only appropriate sentence is one comprising a head sentence and a non-parole period, albeit the non-parole period is one which may see your immediate release. 

10In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[2]  Some tend towards leniency, and some point the other way.  No one factor automatically prevails over any other.  Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.

[2] Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).

Your personal circumstances

11Turning to your personal circumstances which were outlined in defence submissions.

12You are now 39 years old, being born in December 1982 in Melbourne, the youngest in a sibship of three. At the age of 7, your family moved to Ultima in Northern Victoria to run a hotel and some five years later they moved to Bendigo.  In Bendigo, your mother worked in a nursing home and your father worked as a truck driver.  Your parents separated when you were 14 years old and you lived with your mother and had little contact with your father, especially after he moved to Melbourne.  The minimal contact with your father continues to cause you pain.  Your mother believes it was difficult for you when she and your father were busy with the hotel and also difficult for you witnessing the deterioration of their marriage.  Your mother remarried when you were in your early 20s and you get along with her partner.     

13You attended school in Ultima and in Bendigo, leaving after Year 11.  You found primary school in Ultima difficult and did not fit in.  During your high school years, you were diagnosed with attention deficit hyperactivity disorder, which is known as ADHD.  Apparently, you were treated by a paediatrician in the
Royal Children’s Hospital who prescribed dexamphetamine which you took for about a year but with little success.  You were an avid sportsman, taking part in a range of sports including basketball, badminton, tennis, cricket and football, which you played well into your 30s. 

14After leaving school, you held various jobs, including living and working on your sister’s farm for about six months.  You moved to Sunbury to work as a truck driver when you were approximately 23 or 24 years old and this has been your main source of employment, that is, as a truck driver.  You have lost your driving licence, but are confident there will be work opportunities for you once you regain it.

15You have had several significant relationships in your life, the longest with Lauren, which started after you moved to Sunbury and lasted some eight years.  At the time of your offending you were in a relationship with Teresa Barrass.  You have no children.

16You recount using cannabis in your youth, but it was not until you moved to Sunbury that you started to use methamphetamine.  You maintain that you were able to continue working and have a 'normal life' despite your drug use until your relationship with Lauren ended.  You consider you have had a drug problem for about seven years and this appears consistent with your criminal history, to which I will return.

17Since being remanded in custody you have had no disciplinary action against you and have held the position of a unit billet for about six months.  You have produced clean urine screens.  Due to the pandemic restrictions, no courses or programs have been available and family visits have been severely limited.  Your mother has only been able to visit you once but has maintained regular telephone contact.  You have no current psychical or mental health issues.  Upon you release from prison, you intend to live in Bendigo, which is close to your mother. 

Objective gravity of your offending and moral culpability

18Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender.  If there was any doubt about the seriousness of the offence of robbery the maximum penalty of 15 years makes it clear. Your other offences are punishable by one year, that is, for the possession of a drug of dependence if it is not for the purpose of trafficking, and I accept that it was not; and three months' for the offence of commit an indictment offence whilst on bail. 

19Whilst your robbery appears spontaneous and opportunistic, there are a number of features which increase its seriousness as well as your moral culpability and they are as follows:

·You attacked a random member of the public;

·You did so late at night and in an isolated area;

·You did so in company with a male offender;

·The attack was not fleeting and it involved actual violence where you and you co-offender kicked and punched the victim as he lay on the ground;

·Your attack has caused ongoing injury to the victim's arm;

·You  chased the victim when he sought to escape;

·You threatened the victim; and

·Lastly, in relation to the actual incident, you wore a disguise in the sense of having that bandana over your face. 

20Your offending is also aggravated by the fact you were on bail at the time and that was for possessing a drug of dependence and for driving offences. 

21Further, you committed this offence, or offences I should say, within five months of your release from prison. 

22The fact, as it appears, that you were seeking money for drugs explains your conduct but is no excuse and it is certainly not mitigating. 

23All up I consider the robbery to be at least a mid-range example of the offence and your moral culpability to be correspondingly high.

24Your drug possession was consistent with personal use and is low range offending.

Impact of your offending

25I am required to take into account the impact of your offending on your victim and his personal circumstances.[3]

[3] Sentencing Act (n 2) ss 5(2)(daa), (da) and (db).

26Mr Karimi made a victim impact statement on 31 May 2022 which was read to the court.  He recounts that at the time of the robbery he was 25 years old and living out of his car in Melbourne while looking for work in construction.  Your actions have had a serious impact on him.  It is acknowledged that he had a pre-existing injury to his hand and arm and that your attack did not cause his injury but aggravated those pre-existing injuries.  Nevertheless, he describes that his job opportunities are now limited because of the injury to his right hand and that he also has difficulty with daily tasks as well as constant pain which goes from his shoulder of the right hand down to the tips of his fingers.  His loss of ability to work has caused him financial detriment and all up he summarises the way he feels by saying, 'Life is much harder, I cannot enjoy my life because of too much stress with my hand, no job and my family are living without safety.  It is all becoming too much for me to manage'.         

Current sentencing practices

27To promote consistency of approach in sentencing, particularly, the application of relevant principles, I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both. 

28The most recent Sentencing Advisory Council statistics of the higher courts indicate that 93 per cent of people sentenced for robbery over the five years between 1 July 2015 and 30 June 2020 received an immediate term of imprisonment ranging from a number of months to six years, with one to two years being the most common sentence at 41.1 per cent.  This wide variation of sentences reflects the vast disparity in seriousness of the offence.

29Whilst no two cases are ever truly the same, of more use than statistics are sentences imposed in comparable cases which are a guide or yardstick against which to measure any sentence proposed in the instant case. 

30I have had regard to the three cases to which I was referred by the prosecutor, two involving combination sentences.[4]  However, they are each distinguishable in terms of circumstances of offending and offender.  In any event there is no single correct sentence and sentences imposed in other cases are not binding.   Ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case. 

[4] Younger v the Queen [2017] VSCA 199; Osman v the Queen [2015] VSCA 308; and R v Pham [2009] VSCA 3.

Your character and risk of re-offending

31Turning to your character and risk of re-offending, you have a number of relevant prior convictions and as I noted the instant offences were committed only a few months after you were released from prison.  Your past convictions include driving, drug, weapons and dishonesty offences.  You have breached court orders before including Corrections orders and the instant offences were committed whilst you were on bail.  You have clearly not been deterred by past sentences.  This is a worry in terms of your prospect of remaining offence free upon your release this time. 

32On the other hand, you do not have any priors for robbery, albeit you do for affray.  Further, there was a considerable gap in your offending between 2000 and 2017 and that proves that you can remain offence free.  Also, you have the ability to maintain employment and to maintain relationships and those things are in your favour.  Finally, you also have the support of your mother, which is a not insignificant matter. 

33All up, your future is bound to your ability to remain abstinent from drugs upon your release and about that I can only be cautiously optimistic.

Plea of guilty

34You are entitled to a significant discount in your sentence for the fact you have pleaded guilty.  You did not do so at the first opportunity.  However, you were originally facing the more serious charge of armed robbery so it can still be regarded as a relatively early plea of guilty.  In pleading guilty, you have facilitated the course of justice and taken legal responsibility for your crimes.  You have also spared your victim the ordeal of coming to court to give evidence.  Moreover, our Court of Appeal has recently and repeatedly emphasised the need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment where the legal system is under considerable strain.[5]

[5] See, eg, Worboyes v The Queen [2021] VSCA 169, [39].

The burden of imprisonment

35It is also necessary for me, in determining the appropriate sentence, to consider how a term of imprisonment would be likely to impact you.  Because you have been in custody for some time now, you have also been impacted by being in custody.  It is relevant that you are being sentenced during the COVID-19 pandemic.  I accept that a term of imprisonment and any period spent on remand during the pandemic is harder than at other times.  The curtailment of various activities and programs, the reduction or suspension of personal visits and occasional lockdowns are all additional burdens which you have had and you will continue to face if you remain in custody. 

Purposes of sentencing

36I turn to the purposes of sentencing.  I am obliged not to impose a more severe sentence than is necessary to achieve the purposes of just punishment, deterrence, rehabilitation, denunciation and protection of the community.  A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.

37Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality.  What that means is you must not be punished any more than is proportionate and appropriate to your overall criminality.  I must also be careful not to punish you twice for the same conduct.  I intend to avoid this by making my sentence on the summary charge of committing an indictable offence whilst on bail concurrent with your robbery charge or the sentence on your robbery charge given I have treated the fact you were on bail as an aggravating feature of your robbery. 

38The important sentencing principles in this case are general and specific deterrence, denunciation and community protection.  Weighing all the competing factors, in my view the only sentence which will meet all the sentencing principles is one involving a head sentence with a non-parole period.  Your offending just too serious and your mitigating factors too few to do otherwise. 

39I intend to allow for your rehabilitation by the setting of a non-parole period.

Sentence

40So I am, Mr Johnson, going to sentence you now but you can remain seated given that you are on the screen and if you stand up I will lose sight of you. 

41On Charge 1, the robbery, I convict and sentence you to 18 months' imprisonment. 

42On Charge 2, the possession of a drug of dependence, I convict and sentence you to one month imprisonment which is concurrent on Charge 1.

43On the summary offence, Charge 4, which is commit an indictable offence whilst on bail, I convict and sentence you to one month imprisonment, which I will also make concurrent on the other two charges. 

44So the total effective sentence is 18 months', and in respect of that sentence, I set a non-parole period of 12 months. 

Presentence detention

45I declare that you have already served a total of 375 days, not including today.  So that means you have served more than the non-parole period.  As you would be aware, it is up to the Adult Parole Board as to whether to release you on parole and when to release you on parole if they do.  That is not up to me.

Section 6AAA 

46If you had not pleaded not guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of four years with a non-parole period of two and a half years. 

Ancillary orders

47Now, the prosecution have made applications for a disposal order in respect of the drugs, methylamphetamine, and I will make that order.  I will sign it now.  And I think that covers everything.  Do you understand the sentence,
Mr Johnson? 

48OFFENDER:  Yes, I do, Your Honour. 

49HER HONOUR:  Thank you.  As I said before, how your future goes is really dependent on you staying off the drugs.  So you have got to do your absolute best because if you end up committing anything like this again, you are going to go back in and you are going to serve a much bigger sentence.  Do you understand?  

50OFFENDER:  I do. 

51HER HONOUR:  Is there anything else that I have missed? 

52MS GUESDON:  No.

53MS CLARK:  Not from me, Your Honour. 

54HER HONOUR:  Thank you very much.  We will adjourn the court. 

55MS CLARK:  If Your Honour pleases. 

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