Director of Public Prosecutions v Johnson

[2016] VCC 1229

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00087

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS JOHNSON

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June & 11 July 2016
DATE OF SENTENCE:	22 August 2016
CASE MAY BE CITED AS:	DPP v Johnson
MEDIUM NEUTRAL CITATION:	[2016] VCC 1229

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 D. Cordy
For the Offender	Mr N. Brown

Pages 1 - 12

 

 

1Thomas Johnson, you have pleaded guilty to nine charges of intentionally causing injury, one charge of threatening to inflict serious injury, one charge of making a threat to kill and one charge of persistent contravention of a family violence order.

2The circumstances of your offending are set out in the prosecution opening and they are not in issue.  No point is served in my reading them at this time. 

3The victim of this offending was your partner. 

4All the offending is appropriately categorised as involving domestic family violence.  During the course of your offending:

·at various times your partner fled from the residence she occupied with you in response to the violence and abuse you visited upon her; and

·returned on numerous occasions to cohabit with you only to be exposed to furthers incidences of family domestic violence.

5During the duration of your offending your victim was cohabitating with you. The offending, given its sustained nature and the number of incidents involved, satisfies me that it carries with it a considerable level of culpability.  You have been in prison on remand since 30 September 2015.During this period your victim has clearly forgiven you.  Only a month ago she penned a letter to you declaring her love for you and seeking to re-establish a relationship.

6Regardless of the attitude of your victim, domestic violence is an all too common occurrence in our community.  It operates as a scourge on our community.  For years the courts have issued warnings that such behaviour will not be tolerated.  In 2010 the Victorian Court of Appeal commented,

"This court has said on many occasions that domestic violence will not be tolerated and that general deterrence is a very important sentencing principle in the sentencing disposition which must be seen to be condemned by the court." 

7That statement applies to each of the charges in this case which you committed against your then partner and the nature of your offending requires me to place significant weight on my role to deter both you and other members of the community from engaging in conduct of this type.

8Your personal history is as follows.

9You are currently 23 years old.  You are an Aboriginal man of the Yorta Yorta people. 

10When you were ten years of age your parents separated.  Whilst they continued to support you individually you spent a considerable time with your grandparents until they passed away when you were 14 years of age. 

11Before your parents separated you witnessed both your mother and father abusing alcohol, cannabis and other drugs and frequent physical and verbal abuse by your father against your mother.

12You were educated at the Echuca Primary School until Year 8, at which time you left school.  You have not really engaged in formal employment since leaving school. 

13You are the father of a five year old son.  You met his birth mother whilst you were at school.  You separated shortly after the birth of your son.  Both your son and his birth mother now live in Queensland.  You wish to re-establish your relationship with them.

14At the age of 13 you commenced using and abusing alcohol and cannabis.  From the age of 17 you have been a habitual user of methamphetamine. 

15You have a relevant history of offending which involves previous convictions as set out in Exhibit 1 including convictions for assault and breaching a family violence intervention order.

16Ms Gina Cidoni, a consultant psychiatrist, assessed you on 26 May 2016.  You told her that your relationship with the victim is over.  You acknowledged to her the problems with that relationship and your intention to put that relationship behind you.  Having administered a number of psychological tests in the course of her examination Ms Cidoni described you as presenting with a lack of insight, a violent ideation and a mood disorder involving depression and psychosis. 

17She described you:

·as having an extremely low intellectual function, with an IQ scale of 65 which placed you at the first percentile with respect to intellectual function;

·as presenting with persisting challenges in thinking and decision making in respect of which she commented:

“With this level of functioning his ability to exercise appropriate judgment and make calm and rational choices (to think clearly) is impaired.

The personality assessment revealed concerning results with evidence of psychotic processes, depression, obsessions and compulsions, anger control issues and maladaptive coping.

Methamphetamine abuse seems to be the major contributing factor in the offending against Ms X.  He claimed he was using a gram daily that had resulted in severe insomnia, major mood swings, delusional behaviour and extreme paranoia.  Some of these symptoms were still present at the interview, suggesting he is suffering from the effects of drug-induced psychosis.”

18Ms Cidoni concluded her report commenting:

“There is no doubt that imprisonment in this case would be a greater burden on him due to his low intellect (and concerning mental health) than a person with higher functioning.”

In the course of her assessment Ms Cidoni placed you at a high risk of violent reoffending but commented that this risk would reduce with effective treatment of your mental health problems, the cessation of your drug use and instruction in effective coping skills in the face of adversity and problematic situations.

19Given the matters raised by Ms Cidoni in her report, at my direction a Forensicare assessment was undertaken upon you by Dr Daniel Shea, a clinical forensic psychologist.  He reported on 17 August 2016. 

20In the course of that report Dr Shea stated that he had formally assessed your intellectual functioning as falling within the low to moderate range and commented that while this was inconsistent with Ms Cidoni's assessment of that function this inconsistency was probably explained by the fact that you may have been suffering from residual drug effects at the time of Ms Cidoni's assessment.

21Dr Shea commented that while you have a history of depression he found it difficult to disentangle the effect of that depression upon you from the effect of your drug use. 

22He expressed the opinion that you pose a high risk of violence over the medium to long term and considered it most likely any future violence would occur in the context of a return to substance use or as a response to perceived provocation. 

23Dr Shea commented that your family environment which was categorised by violence and substance abuse, predisposed you to violent and anti-social behaviour.  He described your formative years as involving chaos and danger and commented that it was not surprising in these circumstances that you had difficulty in maintaining harmonious close relationships and respecting appropriate interpersonal boundaries.

24Dr Shea described you as having poor insight into the likelihood of relapse or the important factors, other than substance abuse, in respect of the risk for your future violence. 

25He said that you present with, mild depressive symptoms, commenting that you are well-adjusted to your prison life and that:

·you responded well to the structured environment involved in that life;

·you have enjoyed participating in programs related to literacy and numeracy and Koori art;

·you have achieved your longest period of abstinence from substance abuse to date.

26Dr Shea recommended that your rehabilitation would be assisted by a period of significant supervision upon your release from prison given that a key dynamic factor in your offending was your substance abuse. 

27There is a conflict between the opinions expressed by Ms Cidoni on the one hand and Dr Shea on the other as to:

·the burden which imprisonment imposes upon you; and

·the level of your current anxiety and depression. 

Given that Dr Shea assessed you most recently and that he had the benefit of the report of Ms Cidoni at that time which allowed him to compare and consider the way in which you presented to her in May and to him in August, I find the opinions expressed by Dr Shea to be more persuasive than those expressed by Ms Cidoni as to:

·the way you are coping with your imprisonment; and

·your current level of anxiety and depression.

28Given the detail of the psychological testing administered by Ms Cidoni when compared to Dr Shea however, I prefer the evidence of Ms Cidoni as to your general intellect and the challenges you face in processing and thinking clearly. 

29I am satisfied that:

·your lack of positive role models and the domestic violence and substance abuse which were features of your formative years, together with

·the difficulties with which you present as identified by Ms Cidoni which she describes as resulting in challenges for you in exercising appropriate judgment and making calm and rational choices by thinking clearly

operate to reduce your culpability for your offending to some extent, notwithstanding the obvious interplay of your methamphetamine abuse in that offending.

30Since your arrest with respect to this offending you have spent numerous days in pre-sentence detention. 

31It was put in the course of your plea that through no fault of your own the first 128 days of that detention involved you spending long periods in lockdown conditions and that the hardship involved in that process should be taken into account in the sentence which I impose in this instance.  I accept that position.

32Whilst you have served periods of imprisonment previously, your detention to date with respect to these charges represents the first substantial sentence you have served.  I give due weight to that fact in sentencing you in this instance. 

33You are a young man with a long history of substance abuse and a criminal record as I have previously commented involving contraventions of community corrections orders, numerous assaults, causing damage to property, recklessly causing injury and other incidents of violence.  I have little doubt that this history was contributed to by your history of substance abuse. 

34It was put on your behalf that you are currently drug free.  I am satisfied that this is a positive factor and it should be given appropriate weight in my sentencing.  Your most recent letter which has been received by me this morning and has been tendered confirms the view that I have just expressed.

35It is clear from the letter of Mr John Mitchell that assistance and support is available to you upon your release from prison.  There is no evidence before me which convinces me that you have chosen to access that support in the past.  Whilst it is clearly in your interests to do so in the future whether you choose to seek that support is in your hands. It is clear that prior to your current term of imprisonment you had chosen to live a life in which you did not employ effectively or at all that support in seeking to control your drug use or your tendency towards violence.

36In sentencing you I am satisfied that:

·general deterrence, that is, making statements to deter others from offending of this type;

·specific deterrence, that is, the necessity to make sure that you understand that you must not act in this way or offend;

·your rehabilitation; and

·the need to impose a sentence which involves just punishment but gives appropriate weight to your rehabilitation as a relatively youthful offender

are of primary importance in this instance.

37I recognise the critical importance of rehabilitation of youthful offenders into the community and the benefit which the community gains from that process. 

38Given the positive attitude you appear to have taken to your imprisonment which has involved you engaging in the programs to which I have referred and ceasing your illicit use of drugs, I have some cautious optimism as to your prospects of rehabilitation.

39I cannot be confident at the present time however that upon your release from prison you will not reoffend should that release occur in the immediate future. 

40I make this statement on the basis of the risk assessment undertaken by Ms Cidoni in which she described you as being at high risk of violent reoffending in the absence of you seeking help and intervention which you have not sought to date, and the identical opinion expressed by Dr Shea.

41I am satisfied that the sentence which I impose should be discounted significantly to take into account your plea of guilty.  I am satisfied that your plea was entered at the earliest possible opportunity and that this is not only an indicator that you now accept responsibility for your behaviour but that it has saved the community significant expense associated with the preparation and conduct of a trial.

42The matters to which I have referred in my sentencing comments which speak in your favour must be weighed against the violence which you visited upon your victim time and time again in the course of your relationship with her which not only caused physical injury but were such that it was abusive and degrading of her. 

43Further, notwithstanding your plea of guilty, I have no real confidence as to the level of the insight you have as to your offending given the comments you made in the course of your community corrections order assessment in which you sought to minimise the seriousness of your offending. I find those comments however to suggest that you were being brutally honest with your assessor rather than attempting to be manipulative and that those comments are consistent with the issues with which you present as identified with Ms Cidoni in the course of her testing of you.

44In the course of your community corrections assessment you provided a history to the assessment officer that you have been sentenced to imprisonment on five occasions but you have not served any periods of parole and that you have been the subject of two community corrections order, both of which you have contravened either by non-compliance or further offending.  Again this was a brutally honest statement by you.

45Notwithstanding that history and the conclusion of the assessing officer that you remained at a high risk of general reoffending, you have been assessed as being suitable for the imposition of a further community corrections order.

46In my opinion given the certainty that the imposition of a community corrections order firstly would be associated with your supervision for the duration of the order upon your release from imprisonment; and secondly would require you to engage in specific programs designed to:

·remain in control of your tendency to resort to illicit use of substances; and

·help you deal with your tendency to act violently in response to situations in which you find yourself in,

I am satisfied that I should impose such an order in this instance.

47I am nevertheless satisfied that your offending is such that it requires you to serve a significant period of imprisonment given the nature of your offending and the type of that offending, and taking into account that your offending needs to be considered in the context of your criminal history and your failure to learn from the sentences imposed upon you as demonstrated by your repeated reoffending.

48In all the circumstances though I should impose the following sentences upon you in this instance. 

49You are to be sentenced to a period of imprisonment of 22 months in combination with the imposition of a community corrections order, the duration of which will be 24 months.

50Your community corrections order will be subject to the following conditions; 1) you will undertake unpaid community work for a total of 100 hours; 2) you will be supervised pursuant to s.48E of the Act; 3) you will undergo the treatment and rehabilitation programs recommended by those supervising the order, including being referred to a program designed specifically to address male violence.  Your attendance of such programs will be credited against the unpaid work aspect of this order; 4) you will undergo judicial monitoring by myself, a first session of which will take place within 14 days of your release from prison.

51It has been recommended that you be assessed for your suitability for the implementation of a youth justice plan.  Gentlemen, with respect to that recommendation, is that a recommendation that can sit with a community corrections order?

52MR CORDY:  I don’t believe it is, it's a youth justice plan, Your Honour.

53HIS HONOUR:  Yes, it seemed to me that notwithstanding that recommendation given, for the reasons I have indicated, a community corrections order should be made and I should not impose that if it is going to cut across that process.

54MR CORDY:  I think that’s right.

55HIS HONOUR:  So I think I need to explain the reason why I have taken that course having regard to the recommendation that was made.

56This community corrections order will commence when you are released from prison.  You will be required to report to the Bendigo Justice Service Centre at 81 Bull Street in Bendigo.  Pursuant to the provision of the Sentencing Act I declare that you have spent a period of 327 days including today by way of pre-sentence detention and that period will be reckoned as time served and noted in the records of the court.

57I am going to make the forensic sampling order sought under s.464ZF of the Crimes Act.  In this instance but for your plea of guilty I would have imposed a sentence of imprisonment of four and a half years with a non-parole period of three years.

58With respect to the process that is going to be employed I have sentenced you to a period of 22 months imprisonment so you are going to be detained for that time.  You will then be the subject of a community corrections order and that is going to involve you in undertaking courses, being supervised with respect to your rehabilitation, being assisted with respect to your attitudes towards violence and your drug addicted behaviour.  You are going to be supervised in that program not only by those managing the course but by myself. 

59Now you need to understand that for two years after your release if you commit any offence which is an indictable offence, drug use or violence that will be a breach of the order and you will come back to me and I have a number of options including resentencing you with respect to these offences.  So you are going to have process which involves considerable supervision and real obligations on you.  If you go down the path that you have previously gone down you will be back before me and you will be sentenced. 

60Now all of these things you need to think about and you will have some time to think about them before your release.  The question is whether you are going to control your life or continue down the path you have continued to date.  You have got some people in the community, that is in your community, who will assist you but you need to decide whether you are going to seek that assistance.  If you can remain drug free that is going to be a very important factor but it is not the only factor for you and you need to focus upon the fact that you should not make excuses for your offending.  You are responsible for it and when you accept that that will be start of your potential for improvement.

61Is there anything else that I need to do in terms of a ‑ ‑ ‑

62MR CORDY:  Just in relation to the sentence of imprisonment, Your Honour, and the CCO, I take it that it expresses an aggregate sentence of imprisonment.

63HIS HONOUR:  It is.

64MR CORDY:  Yes, thank you. And it's a CCO in respect of all charges?

65HIS HONOUR:  It is.

66MR CORDY:  Thank you.

67HIS HONOUR:  Mr Cordy, I have the - I should say I need to explain the forensic sample process.  I have made an order that a forensic sample will be obtained.  It will be obtained by way of a mouth swab which is really non-invasive but if you fail to cooperate then appropriate force can be applied to obtain a blood sample.  Do you understand that?

68OFFENDER:  (No audible response.)

69HIS HONOUR:  We will need to prepare the community corrections order.  I should mark the Forensicare report as a further exhibit on the file.  I will mark it as a prosecution exhibit, so it will be the next prosecution exhibit.  I probably should also mark the community corrections order assessment.  So I will mark both of those as sequential exhibits.

70Mr Johnson, with respect to your judicial monitoring the first day of your judicial monitoring by me is going to be 14 days after your release because I am going to monitor you very carefully.  You are not coming to me to see me because that imposes further punishment that is not the case.  The Community Corrections office and myself in terms of our monitoring are there to try and assist you, so the reason you are coming to me 14 days after your release from prison will be to have a chat about the fact that you have responded to the community corrections order by going down there and introducing yourself and receiving appropriate instructions and equally being able to tell me about what you are doing and what your plans are so that I can, if possible, assist you through that process.

71MR BROWN:  If I may just be excused from the Bar table so I can attend to my client to sign this order, Your Honour?

72HIS HONOUR:  Of course.  Is there anything else that I need to attend to before we adjourn?

73MR CORDY:  No, Your Honour.

74MR BROWN:  Was there a specific date for the returning of the judicial monitoring or we're just noting that it was
14 ‑ ‑ ‑

75HIS HONOUR:  We will work the date out when we - on my reckoning Mr Johnson is about halfway through his sentence.

76MR BROWN:  Yes.

77HIS HONOUR:  It is about 660 days and he has served 327 odd days, but I think when we find - when we are advised as to the release date we will notify Corrections as to the date.  The order at the moment, the community corrections order that I have signed, the date of review is 29 August 2017 but we will confirm that date.

78MR BROWN:  Thank you, Your Honour.

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