Director of Public Prosecutions v Johnson
[2018] VCC 1557
•21 September 2018
| IN THE COUNTY KOORI COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01335
Indictment No. H1378204.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HENRY JOHNSON |
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JUDGE: | HER HONOUR JUDGE CONDON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 September 2018 | |
DATE OF SENTENCE: | 21 September 2018 | |
CASE MAY BE CITED AS: | DPP v Johnson | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1557 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – false imprisonment – plea of guilty
Sentence: Total effective sentence of two years’ imprisonment, with a new non-parole period of fifteen months.
Section 6AAA declaration: four years’ imprisonment with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J Malobabic (Plea) Ms A Cooney (Sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms G Connelly | Matthew White & Associates |
HER HONOUR:
1 Henry Johnson, you have pleaded guilty before me to one charge of false imprisonment and one charge of recklessly causing injury. You have also agreed to have two summary offences dealt with by me, being drive in a manner dangerous, and being a learner driver drive vehicle without an expert driver. You are now 26 years of age and you were 25 at the time of these offences.
2 Exhibit A on the plea was a Summary of Prosecution Opening containing the facts surrounding your offending. However, I will briefly summarise the events which gave rise to your appearance before me.
3 On 13 November 2017, the victim in this matter, Ms Vanessa Cain[1], had dropped off her son at childcare and gone to work. At the time, you and she had been in an on-again off-again relationship. In your view, it was one focused purely on mutual drug taking.
[1] Vanessa Cain is a pseudonym
4 Shortly after dropping her son off, she returned to her apartment (where you had been residing) to get a Medicare card. She noticed that you were not home. She decided to go for a drive to see if you were with another woman in Collingwood. Upon locating you, she began yelling at you. You tried to calm her down. She then returned to her car and proceeded to drive west on Vere Street, Collingwood.
5 While she drove away, you got into your car and started chasing her. You can be seen on CCTV footage in Wellington Street, Collingwood driving erratically on the wrong side of the road, and overtaking other cars. (This conduct constitutes summary charges 4 and 5.)
6 You eventually caught up with her in Gold Street. You pushed her car into the curb, causing her car to stop and preventing it from travelling any further. You then approached the passenger door, climbed into the car, and pulled her out with both hands, by her arms. You lifted her up from behind, and carried her to the driver’s side of the car you were driving, forcing her into the car feet-first. She left all of her belongings in her car, including her mobile phone. She was observed by witnesses being carried by you to the car, kicking and screaming with her feet up on your car, attempting to prevent herself being forced into your car. She was heard to say, “I’m not going anywhere with you, Henry.”
7 You then got into your car and drove towards Alexandra Parade. You eventually abandoned the car a short time later in Drummond Street, Carlton North. This conduct constitutes the activity that forms the basis of Charge 1 on the indictment, false imprisonment.
8 As a result of the incident, Ms Cain sustained minor injuries, consisting of a small bruise to her left upper arm, grazed skin on right shin and foot, and a small bruise on her left chest. This relates to Charge 2 on the indictment, recklessly cause injury. Exhibit C on the plea was various photographs that I viewed regarding these injuries.
9 Some days later, on 17 November 2017, you were located by police at an address in Preston. You were arrested, and participated in a record of interview in which you made admissions. You told police that at the time of committing the offences, you had been up for four days and abusing the drug ice, which had been a battle for you for some time. You also said this: “I was lost. I don’t know why it’s come to this.”
10 You were remanded into custody on 17 November 2017 and have remained so ever since. Before me, you admitted your prior criminal history.
11 On 25 May of this year, you appeared at the Dandenong Magistrates’ Court for a range of offences which included false imprisonment, threat to inflict serious injury, unlawful assault and aggravated assault of a female. The victim in relation to those matters was the mother of your two children, Dahnay and Brandon, six and three years old respectively. These matters have a concerning similarity to the matters before me. While they do involve a different victim, I am told that the facts surrounding the false imprisonment are not dissimilar from those which arose in November of 2017. Both incidents reveal a propensity by you to resort to violence in the context of a domestic scenario. Indeed, Pamela Matthews, forensic psychologist, assessed your risk of re-offending in the context of an intimate relationship to be moderate.
12
In May of 2018, you received a total effective sentence of imprisonment of 18 months, with a non-parole period fixed at 12 months. Your earliest release date in relation to the sentence that you are currently undergoing is
25 September 2019, and according to that sentence, you are eligible for parole on 25 March 2019.
13 As was submitted by the Crown prosecutor on the plea, this is serious offending. The victim, Ms Cain (while I did not receive any victim impact statement) was no doubt scared and fearful during her ordeal. Indeed, you have acknowledged as much in the course of the sentencing conversation held before me. You indicated that you imagined that your ex would have been pretty scared at the time of these offences.
14 While not seeking to mitigate your moral culpability for your role, the context in which your offending occurred is one in which you were addicted to the drug ice. Furthermore, your defence counsel characterised your offending here as reactive and spontaneous. The more serious matter, being the false imprisonment, was indeed of short duration and not the result of planning or forethought.
15 In sentencing you, I take into account that yours should be regarded as a plea at the earliest available opportunity. I note that you made an offer to plead guilty to false imprisonment in February of this year, and that you have ultimately pleaded guilty to that very charge on indictment. By your plea, you have obviated the need for any witnesses to be exposed to cross-examination and you have facilitated the administration of criminal justice.
16 I also note that a plea was entered at the committal on 27 June 2018 in the Magistrates’ Court and the matter proceeded by way of hand-up brief.
17 I find that your plea is consistent with remorse, and note your acceptance of the wrongfulness of your actions as expressed in the record of interview conducted a matter of days after the incident
18 You have made valuable use of your time in custody. You have been held at Port Phillip Prison since November of 2017. In that time, you have voluntarily completed a number of courses, including the Koori Healthy Lifestyle Plan, the Coping Enhancement and Wellbeing Program, and also the Prison Legal Education and Assistance Project. Furthermore, I received on the plea as exhibit 1 a clean urine screen, dated 29 May 2018. I take into account these matters when making an assessment as to your prospects of rehabilitation.
19 There is no doubt that there is some risk of you reoffending, particularly in light of your long-term drug abuse. Indeed, your own counsel on the plea categorised your rehabilitation prospects as guarded. Upon assessment from Pamela Matthews, forensic psychologist, it was her view that your risk of reoffending in the context of a domestic, intimate relationship was moderate. Essential to the factors lessening the risk, in her view, were the development of your coping skills in response to psychosocial stress, drug use, and a lack of appropriate therapeutic or pharmaceutical support.
20 In her view, your history is consistent with you suffering a major depressive disorder. She states that you experience depressed moods most of the day nearly every day, you have diminished interest in activities, insomnia, feelings of worthlessness, diminished ability to think, and recurrent thoughts of death.
21 I note that you are currently not medicated in any way despite your diagnosis of depression. Indeed, of some concern to me is that in May of this year, custody management noted that you were feeling suicidal, and a request was made by you to see a psychiatric nurse. It is unclear to me whether or not you have in fact had the benefit of any psychiatric or psychological assistance whilst you have been in custody at Port Phillip Prison. Some psychological or psychiatric assistance may be of substantial benefit for you in the future.
22 Ms Matthews recommended that you be required to complete a Men’s Behavioural Change Program. It was clear that you have a desire to participate in rehabilitative programs whilst in custody. You are currently participating in a Koori Art Program at the prison. You also indicated that you would be interested in joining the Men’s Group, which, as I understand it, is a program designed specifically for Koori offenders.
23 You have the support of a strong family unit. Present at the plea was your father, Owen Johnson. Your auntie, Elizabeth Thorpe, was also present. She made it very clear that your family is there to support you through thick and thin. You are indeed fortunate to have strong family ties and a strong family unit to fall back on, upon your eventual release from custody.
24 The impact on you of the separation from your children as a consequence of your incarceration has clearly been profound. I was told by your auntie that you are a good father to your children. However, the breakdown of your relationship with the mother of your two children is clearly an ongoing problem. This is manifested by the fact that in May of this year, you appeared in the Magistrates’ Court for offences in which she was the victim. This incident occurred in May of 2017, some six months before the matters that I am sentencing you for today.
25 In sentencing you, I take into account the following matters in mitigation:
(i) your early plea of guilty
(ii) your expressions of remorse and insight into the factors contributing to your offending
(iii) your voluntary election to participate in the Koori Court process, which is recognised as being more burdensome than a regular plea hearing
(iv) your diagnosis of depression and the fact that your time in custody is rendered more onerous by dint of that diagnosis
(v) the fact that you have attempted to access some rehabilitative programs whilst on remand, and
(vi) the fact that upon your eventual release, you will have the enduring support of a strong family network, as evidenced by the presence of your father and auntie at the plea in mitigation.
26 I turn now to your personal circumstances. You grew up in Dandenong, and were raised by your paternal grandmother and older brother and sister. You and your siblings lived with your grandmother following the separation of your parents. You have a close relationship with your father; however, you do not maintain regular contact with your mother.
27 You and your parents are of Aboriginal heritage, belonging to the Yorta Yorta people. You have been heavily involved with the Aboriginal community throughout your life, playing football and working with Aboriginal youth. You have completed several community work courses through the Victorian Aboriginal Community Services Association. You told Pamela Matthews that it is a source of frustration to you that you are unable to participate and engage with the Aboriginal community whilst in custody. You expressed a desire to her to engage with the community upon your eventual release from prison.
28 Your paternal grandfather is of Gurnai heritage, which hails from the Gippsland area. Given your close bonds with your father, you have had more contact with this cultural heritage, specifically around the Lake Tyers mission. Your Uncle, Wayne Thorpe, is strongly connected to the community in that region.
29 Your brother is 34, and recently returned to living with his family in Melbourne from Perth. Your sister is 27. You are close to your grandmother and siblings, and your grandmother has recently been diagnosed with Parkinson ’s disease.
30 You tragically lost your younger brother in a car accident in 2012, and at the time, he was only 12 years of age. Understandably, you did not cope well with your brother’s death, initially disassociating from your family and resorting to drug use.
31 You have a limited education. You attended high school in Dandenong and left school in Year 10. At around that time, you started getting involved with drugs, resulting in your first experience of juvenile incarceration (albeit on remand) at around the age of 16 years. You are a long-term cannabis user. However, you observed to Pamela Matthews that cannabis is what has kept you out of trouble. Unfortunately, the same cannot be said of your use of methamphetamine. The commission of these serious offences and the matter which preceded it in May of 2017 both occurred while you were under the influence of the all too prevalent drug ice.
32 The basic purposes for which a court may impose a sentence are punishment, specific and general deterrence, rehabilitation, denunciation, and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances, and those of the victim, if any.
33 Please stand, Mr Johnson.
34 In relation to Charges 1 and 2, I sentence you to an aggregate period of imprisonment of two (2) years. I consider it appropriate to impose an aggregate term of imprisonment here given the offending forms part of one continuum.
35 In relation to summary charges 4 and 5, I impose an aggregate fine of $1,000.
36 I order that all licences held by you be cancelled and you are disqualified from driving for a period of 12 months, effective from today’s date.
37 Pursuant to s 14 of the Sentencing Act, I fix a new single non-parole period of 15 months, effective from today's date.
38 Pursuant to s 18(4) of the Sentencing Act, I declare189 days as pre-sentence detention, and order that such declaration be noted in the records of the court.
39 Pursuant to s 6AAA of the Sentencing Act, were it not for your plea of guilty, I would have imposed a sentence of imprisonment of four (4) years with a non-parole period of two (2) years.
40 I also order that pursuant to the prosecution application under s 464ZF of the Crimes Act - you may be seated, Mr Johnson - that an application for a forensic sample is granted.
41 Are there any other orders?
42 COUNSEL: No, Your Honour.
43 HER HONOUR: No? All right. Well thank you, counsel.
44 MS CONNELLY: As the court pleases.
45 HER HONOUR: Ye, we will just adjourn sine die.
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