Director of Public Prosecutions v Johnson

[2018] VCC 494

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01872

DIRECTOR OF PUBLIC PROSECUTIONS

v

TYLER JAMES JOHNSON

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 April 2018
CASE MAY BE CITED AS:	DPP v Johnson
MEDIUM NEUTRAL CITATION:	[2018] VCC 494

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms C. Cameron
For the Accused	Mr T. Danos

HIS HONOUR: 

1Tyler James Johnson, you have pleaded guilty to an indictment containing six charges. 

2Charges 1, 3 and 4 allege separate offences of common assault, which carries a maximum penalty of five years' imprisonment. 

3Charge 2 alleges an offence of contravening a family violence intervention order, which carries a maximum penalty of five years' imprisonment and a fine of 600 penalty units, or both. 

4Charge 5 alleges an offence of making a threat to kill, which carries a maximum penalty of ten years' imprisonment. 

5Charge 6 alleges an offence of intentionally causing injury, which carries a maximum penalty of ten years' imprisonment.

6At the time that you committed these offences you were 24 years of age, you are now 25.  The circumstances in which you came to commit these offences to which you have pleaded guilty, are set out in the detailed prosecution opening dated 21 February 2018, a copy of which was tendered as Exhibit A on the plea hearing.  I will not recite the full circumstances of your offending.  It is sufficient for present purposes to provide only the following, brief outline.

7You were in a relationship with the complainant, whom I shall refer to as K for reasons of privacy and anonymity, for some 18 months prior to this offending.  K was the aggrieved family member in relation to a family violence intervention order issued against you at Shepparton Magistrate's Court on 10 May  2016.  The assaults to which I will shortly describe, all constitute a breach of this intervention order in circumstances where you knew that your conduct would probably cause physical or mental harm to K. 

8This constitutes Charge 2 of the contravening family violence intervention order.  On 21 March 2017 you and K were arguing outside the IGA supermarket on Numurkah Road, Shepparton.  You blamed her for losing a pouch of tobacco.  The argument escalated to the point where you punched her to the side of the head.  This caused her to feel pain and tingling down her neck.  A week later on 28 March 2017 you attended K’s residence in Mooroopna, armed with a knife.  K was not home and you questioned her mother as to her whereabouts.  You advised her that if she, "Talked shit", you would burn down her parent's house in Cobram.

9K returned home and was surprised to find you present inside.  You apologised to her about the incident outside the IGA a week earlier and stated, "We will work things out.  I will get help, I promise".  You then suggested that you should both travel to her mother's address in Cobram and, trusting in you, she agreed. 

10Whilst travelling to Cobram you took her phone from her and examined its contents, observing that there was a photograph of another male saved onto the phone.  This caused you to become angry and you questioned her repeatedly about the male.  By the time that you had arrived at the Cobram address you had become significantly more angry and aggressive towards her.  You told her, "You're nothing but a putrid slut", before placing her in a headlock, choking her to the point of near unconsciousness while she pleaded with you to stop.

11Eventually you did stop.  You handed her the knife and instructed her to, "Cut your arms as deep as I do, to prove you love me".  K feared that if she did not carry out your proposal then you would inflict the injury upon her yourself.  She took the knife and cut her own forearm as you had demanded, before you eventually instructed her to stop. 

12The following day on 28 March you both went in search of drugs.  You injected methadone into her, and later forced her to inject air into her body using a syringe.  You instructed K, "I'm T and you're L".  I note that both T and L are pseudonyms, which I have used, again, for reasons of K’s privacy and anonymity. This comment was significant to the complainant as her father T is serving a term of imprisonment for killing his partner, L. 

13Throughout the day you continued to question K about the photograph of the male and continually called her a "putrid, lying rat", amongst other names.  You also placed her in a headlock and choked her until she became unconscious again.  Sometime later K awoke on the floor.  She asked you in tears, "What did you do that for?" and you replied, "I'll show you what I did that for".  You approached her and then said, "'Cause you’re gonna’ die", before you bit her right ear.  This caused significant pain and bleeding.

14On 30 March you were arrested by police and remanded in custody.  On that same day you participated in an interview which was recorded at the Cobram police station.  Aside from admitting the assault against K outside the IGA in Shepparton on 21 March, you largely denied the offending. 

15These offences carry the maximum which I have outlined before.  They are serious examples of these offences.  The assaults and injury charges were perpetrated against a domestic partner.  This is an aggravation of the offending in my view and render your moral culpability high indeed, as it is for all offences.  There was no victim impact statement provided but I can reasonably infer that your victim would have been terrified and the assaults would have caused her ongoing trauma and hurt. 

16Violence and threats and the infliction of injuries in a domestic situation are totally unacceptable and behaviour which not only affects the victim, but the community who is perturbed and rightly looks to the court to denounce violent, aggressive behaviour towards vulnerable domestic partners, particularly women and to deter such conduct. 

17You have prior criminal history, some 18 pages long, both covering matters in Victoria and interstate.  You are 25 years old but despite that age your priors commence in the Children's Court in 2008 with dishonesty and driving offences and a youth supervision order.  Similar offences appear every year.  A further youth supervision order was imposed by this court in December 2010 on appeal, for burglary and criminal damage and other matters.  Then in February 2012 more dishonesty offences were dealt with by imprisonment.  These offences including a person present, aggravated burglary and unlawful imprisonment. 

18In May 2012 you received another six month term for dishonesty matters, as well as in October 2012 when your record shows another 13 months received.  You escaped from legal custody in 2013.  In 2016 you were in court for driving, dishonesty and dangerous driving and 123 days were imposed as pre-sentence detention with a community corrections order for 18 months.  The usual conditions were imposed.  That was an opportunity given by the court to you.  You breached that order, you were fined and it was varied.  A second chance on the order to be extended on to 8 November 2017.  These offences were committed during the duration of that order and shows your complete disregard for the court's sanctions.

19In May 2017 you were convicted and sentenced to four months' imprisonment on breaching the orders, on breaching offences, the order was cancelled and two months were imposed for the breach.  I repeat these priors not because I will punish you again for these matters, that would not be appropriate, but because they highlight the nature of the prospects of your rehabilitation, which must be very guarded. 

20I was told that you have been in custody since March 2017.  Your record also covers offences and court appearances interstate from 2007, where you appear for aggravated breaking and entering in company, a series of driving offences for which you were placed on a control order and fined.  In 2008 another such order was imposed for driving offences and further orders were made in 2009 for reckless wounding in company and aggravated burglary.  The District Court in November 2009 reduced the non-parole period but another control order was made in 2010 and 2011 after resisting police, driving recklessly and in a dangerous manner.  In 2011 you were imprisoned for assault and in December 2016 fined for driving offences. 

21You were born in Finley and raised in Tocumwal, the youngest of three children.  You have three older half-siblings.  Your parents divorced when you were about seven.  Your father re-partnered with a woman of whose murder he was later charged and convicted.  Your mother too, re-partnered with a violent man and their relationship has been unstable.  You would witness your mother's bashings and would see her bloodied from time to time. 

22Your schooling was not one of academic achievement.  You were, on your report, diagnosed with ADHD and medicated.  You were a bully at school and at age 12 you entered the juvenile justice system.  A few months of high school were marked by truancy and disruptive behaviour.  You did not return to your mother's care after entering the prison system.  When you were released you lived with another family.  You are functionally illiterate although you did complete many vocational courses while in the juvenile system.  However, you have not had full-time work at any stage.  Since age 15 you have worked on and off as a shearer and other labouring jobs which you have not kept more than a few weeks, and have been in receipt of welfare benefits. 

23You told the Forensicare psychiatrist registrar, who wrote a report for the Magistrate's Court in 2016, Dr Chapman, that you have had unstable relationships and friendships.  Before the remand in the year 2016 you had been in the community for some nine months, but had no stable accommodation.  Those October 2016 charges involved the burglary and theft to buy drugs, at a time when you had used methamphetamines.  Police ended up chasing you with cars and in cars twice.  A month before going into custody you were taken to hospital after cutting yourself but when you got there, you pushed past security, stole a car from the hospital car park and left. 

24I should note that your mother drank heavily, often to the point of being unable to care for her children.  Your brother has been in and out of prison.  Your half-sister on your father's side has been admitted to a psychiatric unit.  You used cannabis at age 13 and at 15 commenced using ecstasy until 18 years old, by that time you were using methamphetamine.  After you were released in 2015, your drug use increased significantly and it appears to be a refuge when things get hard to handle.  You have been given methadone in prison. 

25You have had self-harm attempts as well as other contact with mental health services.  At age eight, you report having been diagnosed with ADHD by a paediatrician and treated with Dextroamphetamine, with good effect.  After a suicide attempt at 15, you were an in-patient for a month.  In 2012 there were incidents of self-harm while at Loddon.  Prior to the 2016 incarceration you swallowed razor blades and cut your arm.  You then attempted hanging yourself twice. 

26After an overdose attempt in November 2015 you were seen by a psychiatrist, who diagnosed you with schizophrenia and prescribed Olanzapine.  You told Dr Chapman you were diagnosed with an acquired brain injury due to occasions when you, outlined to her in her report, you had head injuries.  Dr Chapman examined you and found you to appear to be in the low-end of normal range of intelligence but she found no evidence of a mental illness or psychotic illness or depression.  Rather emotional instability and maladaptive coping strategies, low tolerance for frustration and polysubstance abuse.

27You have had little age-appropriate interpersonal and social learning.  She found you to be probably be in a chronic institutionalised state, which impairs any attempts at rehabilitation.  Abstinence and psychological treatment of an intense nature is required, with a neuropsychological assessment to investigate acquired cognitive impairments.  Dr Chapman opined that given your difficulties in functioning in the community, you require a highly structured living environment, group based anger management and substance abuse programs. 

28A neuropsychologist report was received following an assessment by Dr Bourke, a clinical neuropsychologist.  You were assessed while in prison, he measured your IQ at 73, you have an extremely limited vocabulary and grade 1 reading and spelling.  Your numeracy skills are poor at grade 2 equivalent.  Your overall intellectual functioning fell in the borderline range and in the context of essentially normal cognitive functions.  You have a specific learning disorder, developmental in nature, contributing to limited educational achievement.  Test performances are not highly suggestive of an acquired brain injury. 

29He says because of your diminished cognitive functions and learning disorder, your imprisonment will continue to be more difficult than for others and render you more vulnerable to the influence of others.  A highly structured routine, predictable environment will enable you to function best, however.  I take these matters into account and I take the principal of totality into account for a person of your age, who is already probably institutionalised.  It is a sad reflection on how your last 15 years have gone.

30I take your plea into account.  It was made at an appropriate time and will attract an appropriate discount on your sentence.  It has a utilitarian value of having avoided a trial.  I do not have enough material before me to be persuaded it is accompanied by any remorse.  The material in the brief rather, suggests the opposite especially in the record of interview.  As the assault amounts to breaches of family violence orders, I repeat that they are aggravated by this.  You have spent some two months in 23 hour lockup or lockdown and I take this harsh regime of restriction, even in reclusion, into account.

31I accept you are now abstinent and are on methadone and intend to live with an aunt in Cobram and find some stable work when you are released, however your prospects for rehabilitation are grim.  Though the court should be slow to continue a long period of imprisonment for a 25 year old who has had years of reclusion, other considerations of denunciation, general deterrence and specific deterrence are very relevant.  There is room for concurrency in the sentence to some extent, and the pre-sentence detention period will be declared and noted by the court. 

32It was rhetorically suggested that time served may be sufficient to deal with these offences.  I cannot accept that submission and though it is always difficult to see a young man on the verge or already institutionalised, the objective gravity of the offences require a term of imprisonment to be imposed, which can be adequately reflective of the gravity as well as not extinguishing hopes of reclamation in the longer term. 

33Please stand.

34On the assault Charges 1, 3 and 4, you are convicted and sentenced to one year imprisonment on each;

35On the contravention of a family violence intervention order, you are convicted and sentenced to nine months' imprisonment;

36On the threat to kill, you are convicted and sentenced to one year imprisonment;

37On the intentionally cause injury, you are convicted and sentenced to 16  months' imprisonment, the base sentence;

38I order that three months, on Charges 1, 3 and 4; two months on Charge 2 and four months on Charge 5 be cumulative on Charge 6, the base sentence.

39That makes 31 months or two years and seven months.

40I order a non-parole period of one year and eight months, or 20 months. 

41I declare that you have spent 250 days excluding today, is that correct?

42MS CAMERON:  It is 262 days.

43HIS HONOUR:  262?

44MS CAMERON:  Yes, including today.

45HIS HONOUR:  Right.  Well I will make it 261, excluding today. Mr Johnson you have spent 261 days, excluding today, in custody for these matters. This will be declared as days of pre-sentence detention and that number will be noted in the record of the court.  So you have served probably a little more than eight and a half, or close to nine months.  So you have about one year or a bit less to go. 

46Are there any other ancillary orders?

47MS CAMERON:  No, ancillary orders, Your Honour, just a 6AAA.

48HIS HONOUR:  Yes.  Mr Johnson, but for your plea I would have sentenced you to three and a half years imprisonment, with a non-parole period of two and a half years. 

49Yes thank you, you can remove Mr Johnson.

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