Director of Public Prosecutions v Johnson

[2019] VCC 309

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

AT BALLARAT
CRIMINAL JURISDICTION

CR 18-02238

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS JOHNSON

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JUDGE:	HIS HONOUR JUDGE M. BOURKE
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	14 March 2019
CASE MAY BE CITED AS:	DPP v Johnson
MEDIUM NEUTRAL CITATION:	[2019] VCC 309

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 M. Sharpley
For the Accused	Mr A. Madden

HIS HONOUR:

1Nicholas James Johnson, you are to be sentenced for one charge of intentionally damaging property, one charge of aggravated burglary and one charge of intentionally causing injury.  The maximum sentences are ten years' imprisonment for intentional property damage and for potentially causing injury; and 25 years' imprisonment for aggravated burglary. 

2You pleaded guilty before me yesterday.  When interviewed by police on
9 September 2018, the day of your offending, you made a full confession.  In fact, you contacted police within a short time after the offences.  The committal went by hand-up brief on 1 November 2018, after which you pleaded guilty.  The matter was then quickly listed for a plea hearing in this court.  Your plea hearing ran before me only six months after your offending. 

3You receive the benefit of your plea of guilty and a high level of cooperation, both from the earliest time.  You have very  considerably facilitated the interests of justice. 

4At that plea hearing, also yesterday, Mr Sharpley for the Crown tendered a written Crown opening and photographs of the  injuries caused to your victim, Norman Wierzbicki.  Mr Madden for you tendered the psychological report  of Dr Aaron Cunningham dated 7 March 2019 and the certified extract and other documents related to a Family Intervention Order made in June/July 2015 in respect of your then partner and your two children.

5The circumstances of your offending are set out in the tendered opening, which is Exhibit A.   My own summary may therefore be short. 

6You committed Charge 1  (intentionally causing damage) on the evening of Sunday 9 September 2018, when you kicked and broke the window of a room at the Mid City Motel in Ballarat.  You had been inside as an invitee of the occupant, a  former partner, Laura Purdie-Bruhn.    An argument had developed arising from your suspicion of a sexual relationship between her and your friend, Norman Wierzbicki.  An incoming call to her phone by Wierzbicki exacerbated things.  You left the room but then realised that you had left your keys inside.  She failed to answer the door; you became further enraged and kicked the window in.  She returned your keys. 

7In that state, you went to Wierzbick’s residence nearby at Reid's Guest House.  You had been, but were not then, a resident yourself.  You manipulated the front door with a key and entered, intending to assault Wierzbicki  (Charge 2, aggravated burglary).   You went to his room.   You forced the door open and shaped up to him.  You did not enter.  A fight between you ensued in the common area outside his room.  At one point, you threw a chair, striking him on the arm and shoulder.  You stopped fighting, mutually,  and you left.  Soon after, as I have said, you rang the police at your own residence at Peplow House, a similar accommodation. 

8Paragraph 6 of the Crown opening states the injuries caused to Norman Wierzbicki in your assault of him.

"(a) abrasion to his  left shoulder and  bicep, approximately ten centimetres in length; (b)  cut to his left elbow/forearm; (c)  grazing to  left forearm, over the anconeus;  and  (d)  grazing to his left knee."

9Photographs of the injuries were tendered. 

10I was told and accept that you were using methylamphetamine and affected by that drug on this day. 

11Norman Wierzbicki was offered the opportunity to make a victim impact statement but declined to do so. 

12You have two prior court appearances, both in January 2017.  You were fined for unlawfully being on premises, driving and drug possession offences and breaching an intervention order.  Mr. Madden explained the background and  the circumstances of that intervention order. It related to your ex-partner and your children.  The order has expired and the situation between you has stabilised.  You were seeing the children, although not regularly,  prior to being remanded on these matters.

13These offences, particularly Charge 2 (aggravated burglary) are serious.   I must apply sentencing considerations of deterrence, particularly general deterrence, moral culpability, the need for denunciation and for proportionate punishment.   A sentence which at least includes imprisonment is necessary.

14You have already served 187 days in remand custody.  I was told that you have not applied for bail mainly because of lack of accommodation.  You are now able to live with your family in Creswick.  It appears that there have been periods of disaffection from them in the past. 

15I am going to impose a sentence consistent with that time already served together with a community correction order with  appropriate punitive and rehabilitative conditions. 

16My reasons for doing so relate to the following moderating factors:  

(1)  Your plea of guilty and very high level of cooperation. I accept that you are remorseful.

(2)  Some aspects of the offending circumstances.  Although certainly still serious (as stated in the plea hearing, Norman Wierzbicki was entitled to safety and peace in his home)  this aggravated burglary does not, in my view, fall within the more serious categories of the crime.  

(3)   Your personal history and circumstances.  You are 29.   You were raised in Creswick.   Schooling was neither stable  nor successful, at least in part  given your condition of attention deficit hyperactivity disorder, ADHD.  After leaving in Year 10, you worked in a number of jobs but were employed consistently.  You began using cannabis as a teenager, associated with the drowning death  of a close cousin.  You fell out with your family.

You began a relationship with the mother of your two children at 19.  That broke down after several years.  It was a time of instability in respect of your then partner and care of the children.  Your drug use escalated and included methylamphetamine in response to the loss of your children. That occurred in 2016.  You were 27 when you first offended.  Psychologist, Dr Cunningham, diagnoses.  (I quote)

"…….prior adjustment disorder  with mixed disturbance of emotions and conduct.  After losing his children he  became clinically depressed and engaged in reckless and self-destructive behaviour."

Dr Cunningham states you to be of average intelligence. 

(4)   I see you to  have genuine prospects for rehabilitation.  Much will depend upon your ability to continue drug-free.  I accept that that has been the case in remand custody.  You seem to me to have the capacity,  with work and accommodation, to live a functional life.  The future relationship with your children should be a driver for that.  Your mental health has stabilised.

17After considering what I see to be the relevant matters, I sentence you as follows.  On all the charges, you are sentenced to an aggregate sentence of imprisonment of 187 days.  I declare 187 days of pre-sentence detention that that is already served.  I also, on those charges, convict you and impose a community corrections order of two years' duration. 

18The usual terms apply. The additional conditions are that you perform 250 hours of unpaid community work. Under s.48(CA) of the Sentencing Act, hours of engagement in therapeutic or other program work can be credited against that.  There will be a condition for assessment and treatment for drug addiction or dependence; a condition of supervision; and a condition of your participating in programs to reduce, specifically, reoffending,  under s.48(D)(3)(f).

19Now, just take a seat now and we will prepare the documents.  Is there anything else that - yes, I need to make a (indistinct) under s.6AAA.  Had you not pleaded guilty, I would have imposed a sentence of 16 months, with a minimum term of ten months.  All right, well what else is there, Mr Sharpley?

20MR SHARPLEY:  A compensation order, Your Honour.

21HIS HONOUR:  Yes, that is for the window, is it?

22MR SHARPLEY:  For the windows, yes.

23HIS HONOUR:  I will make that.  Have you got that?  I will sign it now. 

24MR SHARPLEY:  It should have been e-lodged, I think, Your Honour.

25HIS HONOUR:  Yes.  That almost means nothing to me. 

26MR SHARPLEY:  Well, it does not mean a lot to me but - do we have a hard copy?  We have a hard copy, Your Honour.

27HIS HONOUR:  (Indistinct words).  It asked whether or not, on the community corrections order, it should say that it commences upon release or it commences today.  It does not matter.  I would say I, upon release, meaning the 14th?

28MR SHARPLEY:  Yes, Your Honour.

29HIS HONOUR:  Does need to be taken back into custody briefly to establish clearance?

30MR SHARPLEY:  Yes, Your Honour.

31HIS HONOUR:  All right.  I presume that will be done on the 15th.  So, all right, now ‑ ‑ ‑

32MR SHARPLEY:  There is also a forensic sample order which has been handed up, Your Honour.

33HIS HONOUR:  Yes, mister - well, so it is hard to resist, is it not?  That is all right, yes.  He probably left when he (indistinct) an (indistinct) almost everywhere he went this day.

34MR MADDEN:  You would think, Your Honour, yes.

35HIS HONOUR:  Yes, all right.

36MR MADDEN:  Might I approach briefly, Your Honour?

37HIS HONOUR:  Yes, just go and (indistinct words).  He has got Judge Gucciardo, I think.  Should I change that?

38ASSOCIATE  Yes please. 

39HIS HONOUR:  What is the position on the forensic sample?

40MR MADDEN:  It is conceded, Your Honour. 

41HIS HONOUR:  Yes.  What will happen, Mr Johnson, is that you will need to go to the - well, is there is a police station at Creswick?  He will need to go to Creswick, I think, (indistinct words) they would be able to do it, I think - you will need to go to the Creswick police station (indistinct words) after four weeks but before eight weeks, that is the - and what will happen is that you will supply a sample of your saliva by a cotton swab. 

42If you are cooperative in that, then that is the end of it.  If you do not cooperate in it, that a sample of blood may be taken by injection and (indistinct words).  The reasons I make this order, the seriousness and the sort of offences that you committed, a DNA sample and record recording commencing January are a very important factor that, in as such, an investigation of such offending so - I note it is not (indistinct).  To some extent that it is relevant, that you have (indistinct words).  I will just sign my copy of it, (indistinct words).  (Indistinct words). 

43All right, stand up, I am going to explain (indistinct words), a month of two years starting today upon your release.  You must attend at the Ballarat Community Correction Services in Mair Street within two clear working days.  It would be a good idea to go today, I would have thought.  You must not commit another offence for which you could be imprisoned.  You must comply with a regulation that states you are not to attend any program, appointment or the like under this order, effectively, alcohol or drugs or in possession of illegal drugs.  You must report to and receive visits from Community Corrections.  You must let Community Corrections know within two days of a change of address or job.  You must not leave Victoria without getting their permission, you must obey all of their lawful directions. 

44Additional, in additional to 250 hours of unpaid work, all of the hours and treatment and rehabilitation that you do can be set off against that.  And be under supervision, either assessment and treatment for drug abuse or dependency and you must participate in programs or courses that address particular factors related to this offending, as you are directed.  Now, do you agree with that?

45OFFENDER:  Yes, Your Honour.

46HIS HONOUR:  You understand it?

47OFFENDER:  Yes, Your Honour. 

48HIS HONOUR:  All right, well we will get you to sign it.  Thank you.  All right, now you need to be taken into custody, you need to be processed.  I am sure that will not take very long at all and you will be seen.  Thank you.

49OFFENDER:  Thank you, Your Honour.

50MR MADDEN:  As Your Honour pleases.  May I be excused, Your Honour?

51HIS HONOUR:  Yes, thank you, Mr Madden.  A copy of that,
Mr Madden, you might like a copy of the order.

52MR MADDEN:  I was just going to grab one.  Yes, thank you, Your Honour.

53HIS HONOUR:  Yes, all right.

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