Director of Public Prosecutions v Johnson

[2017] VCC 345

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02182

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE JOHNSON

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 March 2017
CASE MAY BE CITED AS:	DPP v Johnson
MEDIUM NEUTRAL CITATION:	[2017] VCC 345

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten
For the Accused	Mr Tovey

HIS HONOUR: 

1Jake Johnson, you have pleaded guilty to one charge of causing serious injury recklessly.  You have admitted your criminal record, which reflects an appearance at the Melbourne Children's Court on 27 August 2014 for affray and recklessly cause injury, for which you were placed on a good behaviour bond without conviction.  The bond was to finish on 26 August 2015.  Within a year you are indulging in this sort of behaviour. 

2It is a relevant criminal history for the purposes of sentencing here.  Basically, you attended on 10 September 2016 a function run by the Laverton Football Club.  You were asked to leave, no doubt because of your drunken behaviour.  I am now informed that you had also been using MDMA.  As a result of that, you during the course of the evening grabbed a pot glass off a table with your right hand and smashed it into the left side of Mr Fear's face.  Prior to that he had walked towards you with his arms slightly out as if to say, "What's going on?", the precursor being some mild verbal altercation between groups of people.  You were then escorted outside, you re-entered, and further matters occurred.

3You pleaded guilty to Summary Charge 9, fail to leave licensed premises, and Summary Charge 7, behave in a riotous manner.

4The full facts of the matter are set out in the summary of prosecution opening for plea, Exhibit 1.  I will not refer to them in any greater detail, they are accepted by your counsel.  Any reader of these reasons can refer to that exhibit to place the sentence in its complete factual context. 

5Mr Fear made a victim impact statement which I have read. You caused serious injury to him, including permanent scarring on the left side of his face.  He was in court yesterday.  I take into account the matters that he has set out.  On your behalf your counsel filed an outline of submissions, called your uncle, tendered some references and made some oral submissions.

6At the time you were aged 20.  You are now 21, you are an apprentice carpenter.  You clearly have a problem with alcohol.  For you to say that you struggle to recall large portions of what occurred on that night, particularly in respect of your behaviour, with respect, is pathetic.

7In sentencing you I take into account a number of matters, including all the matters mentioned by your counsel, and they include your plea of guilty, which is an acceptance of responsibility by you and I accept it was done at the first reasonable opportunity. It has also saved the victim the stress and trauma of giving evidence in front of a jury.

8Your age is a matter I have had to consider.  The law is that young people are almost in a special category as far as an assessment of rehabilitation is concerned, but the more serious the offence the less significance I place upon your age.  Take it from me, the fact that you are a young person is the only thing that saved you from a much longer time in gaol than what I am about to impose.

9The basic purposes for which a court may impose a sentence are punishment, general deterrence, both specific and general, 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.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure as far as possible offenders are rehabilitated into society.

10I expressed my denunciation of the behaviour and I trust you heard what I said during the course of the plea.  Glassing at football club nights by people who are affected by alcohol is far too common an occurrence in our society and has been for a long period of time.  People who do such things must expect to receive a substantial period of a term of imprisonment.  You also have a prior appearance for a related matter in the Children's Court.

11You have a trade that if you complete you should be able to earn good money and have constant work.  You have the support of your mother and your uncle.  I was impressed by his evidence.  He struck me as the sort of person who was prepared to try and assist you as much as he can.  They are both loyal people and have had to put up with a lot from you, I suspect.

12Taking all those factors into account, I impose a sentence of nine months' imprisonment and upon release a community corrections order for a period of two years, with conditions for treatment and rehabilitation for drugs and alcohol and programs to reduce offending.   The alcohol exclusion is not in the terms that I want as set out in the report.  What I actually want is a special condition that you are not allowed to consume alcohol, not a restriction upon you going to premises, so that will be a special condition

13That will now be prepared and you will be asked to sign that if you consent to it.  The CCO report, which I will now make Exhibit 4, from Eva Kafkalas, dated 28/03/2017 will be Exhibit 4.  In that report you are assessed as being at a low risk of reoffending.  Just take a seat for a moment, thank you.

14I make an order pursuant to s.464ZF(2) of the Crimes Act for the taking of a forensic sample.  Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied that in all the circumstances the making of the order is justified for the following reasons: the seriousness of the circumstances of the offending.  I grant the order and it is not opposed.

15What that means, Mr Johnson, is that someone will come around and take a forensic sample from you, probably a scraping of the mouth.  Through your counsel you have indicated you do not oppose that.  If you decide to change your mind, I tell you that police may use reasonable force to enable that forensic procedure to be conducted.

16Mr Tovey, if you would like to take that up to your client and ask him if he understands it and consents to it, please.

17MR TOVEY:  Your Honour, that community corrections order has been signed by Mr Johnson.  In doing so he accepts the terms and conditions as Your Honour has outlined them.

18HIS HONOUR:  Mr Johnson, can I just leave you with these thoughts.  You are going to gaol for a period of nine months.  It is a matter for you how you handle that.  You are going to be offered drugs and possibly alcohol whilst in gaol, you will be mixing with all sorts of people who will want to engage you in criminal activity inside and outside of gaol.  It is a matter for you.  If you succumb to that you will be back in court, times of gaol will get longer and longer.  Otherwise you can stay out of trouble in gaol, come back and try and get your life in order.

19Think about not only yourself, but the victim here.  He has permanent scarring.

20Thank you, you may remove Mr Johnson.

21MR TOVEY:  Your Honour, if I could just prior to the matter rising ask Your Honour to note one matter.  I just ask for one matter to be noted on the custody warrant.  Your Honour will see he has got a cast on his wrist, and if there could just be an indication that he be assessed at the earliest opportunity by a doctor with respect to that.

22HIS HONOUR:  My associate will put that on the warrant.  Thank you.

23MR TOVEY:  As Your Honour pleases.

24MR BATTEN: Will Your Honour give an indication under s.6AAA.

25HIS HONOUR: Yes, thank you, I forgot that. Pursuant to s.6AAA of the Sentencing Act, if the matter had proceeded to trial and you were convicted, it is always a speculative guess by me as to what I would impose, but it would have been at least in the order of five years with a non-parole period of three, if not more. 

26Thank you, you may take him out now.

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