Director of Public Prosecutions v Johnson

[2015] VCC 1478

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

AT MILDURA
CRIMINAL JURISDICTION

CR-15-00754

DIRECTOR OF PUBLIC PROSECUTIONS

v

LYNDON JOHNSON
OWEN FANGAAKE

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Mildura
DATE OF HEARING:	28 September 2015 and 15 October 2015
DATE OF SENTENCE:	16 October 2015
CASE MAY BE CITED AS:	DPP v Johnson
MEDIUM NEUTRAL CITATION:	[2015] VCC 1478

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For Accused Johnson	Ms E. Ramsay	Victorian Aboriginal Legal Service
For Accused Fangaake	Ms J. Fallar	Martin, Irwin & Richards

HIS HONOUR: 

1Lyndon Johnson and Owen Fangaake, you have both pleaded guilty to one charge of Aggravated Burglary contrary to s.77(1) of the Crimes Act, 1958. The maximum penalty for that offence is 25 years' imprisonment. You have also both pleaded guilty to one charge of Recklessly Causing Injury, contrary to s.18 of the Crimes Act 1958. The maximum penalty for that offence is five years' imprisonment.

2You both pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence. 

3Lyndon Johnson you have admitted four previous court appearances in the Children's Court for offences including burglary, assault, a fray and intentionally causing injury.  You have been the subject of youth probation orders.

4Owen Fangaake, you have also admitted four previous appearances in the Children's Court, for offences including burglary, armed robbery, robbery and assault in company.  You have also been the subject of youth probation orders, and you have served terms of youth detention and a youth attendance order.

5A prosecution opening was read to the court and your offending may be summarised as follows –

6On 13 January 2013, the victim of your offending who was 16 at the time of the offences was at home watching television.  You both entered the premises and located him, after he hid in his bedroom, having become aware that you were in the premises.  You forcibly removed him from the premises, placed him in a car, and drove him to a location nearby.  The victim was then punched repeatedly in the face and head by Johnson who also demanded that he repay an outstanding drug debt.  The victim was then left to make his own way home.

7Johnson was arrested by investigating police on 14 January 2015 and made no comment to questions put to him.  Fangaake was arrested on 15 January 2015 and made full admissions in respect of his role in the offending.

8In my opinion, your offending is serious in nature and offences like this are all too prevalent.  Your victim as a teenager who was forcedly removed from his home and assaulted in a drug related incident. 

9The sentence I impose must be calculated to deter you and others from offending in this matter.  You must also be punished for what you have done.

10I now turn to your personal circumstances. 

11Lyndon Johnson, you were born in New South Wales on 25 April 1995, and are now aged 20.  You are of indigenous heritage and are the second eldest of a family of six children.  You reside with your mother in Mildura.  Your father resides in Robinvale.  You were educated to Year 10 level and were a talented footballer until you were seriously injured in an accident at the age of 15.  Following this, you developed polysubstance abuse disorder which led to your prior offending.  You are currently the subject of a 12 month community corrections order which commenced on 29 July 2015.  Prior to being placed on this order by the Koori Court in Mildura, you undertook a four month residential detoxification and rehabilitation program at the Wiimpatja Healing Centre in Wentworth, New South Wales.

12I accept that you have the support of a strong family and your mother is employed in indigenous, cultural education.  Your rehabilitation is now well underway.  You are abstinent from drugs and alcohol and are undertaking an employment traineeship.

13Owen Fangaake, you were born on 4 July 1995 in New Zealand are now aged 20.  Your family moved to Australia when you were seven years old.  You are the third eldest in a family of six children.  You reside with your mother in Mildura and your father resides in Port Hedland in Western Australia.  Your childhood and developmental years were severely disrupted by your parents' unhappy marriage and your father's alcoholism and abusive behaviour towards you, your siblings and your mother.

14You completed Year 10 at Mildura Secondary College and after leaving school your offending behaviour commenced.  You abused alcohol and illegal drugs of dependence, but it would appear that you have not developed a dependency in relation to those substances.

15I have received in evidence a psychological report of Dr Mirabel McConachie, a consulting forensic psychologist, setting out your developmental history and psychological profile.  You do not suffer from any current mental illness, but I accept that you require ongoing support and counselling to reduce your risk of reoffending.

16You are both youthful offenders, and whilst your offending is clearly serious in nature and would generally attract the imposition of a term of imprisonment, your youth means that all available sentencing options must be considered, in order to support and further your future rehabilitation.

17Accordingly, I had you both assessed for suitability for a Community Corrections Order.  This course was not opposed by the prosecution.  I have received reports in relation to both of you, stating that you are both suitable for such dispositions. 

18Accordingly in result the sentence of the court is as follows - 

19Lyndon Johnson, in relation to the charge of Aggravated Burglary and the charge or Recklessly Causing Injury, you are convicted and sentenced to a Community Corrections Order for a period of two years, on the core conditions contained in the Sentencing Act, and on the following special conditions, that you be under the supervision of a community corrections officer for the period of the order, you undertake treatment and assessment for drug abuse or dependency, you undertake assessment and treatment for alcohol abuse or dependency and you participate in programs designed to address factors relating do your offending.  Do you consent to entering such an order?

20OFFENDER JOHNSON:  Yes.

21HIS HONOUR:  Owen Fangaake, in relation to the charge of Aggravated Burglary and the charge of Recklessly Causing Injury, you are convicted and sentenced to a Community Corrections Order for a period of two years on the core conditions contained in the Sentencing Act and on the following special conditions, that during the order you be under the supervision of a community corrections officer, you undertake assessment and treatment for drug abuse or dependency, you undertake assessment and treatment for alcohol abuse or dependency and your participate in programs to address factors relating do your offending.  Do you agree to entering such an order?

22OFFENDER FANGAAKE:  Yes, sir.

23HIS HONOUR:  I have made the forensic sample order sought by the Prosecution in the case of Lyndon Johnson.

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