Director of Public Prosecutions v Johnson

[2025] VCC 185

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-24-01096

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAHMAL JOHNSON

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2024
DATE OF SENTENCE:	27 February 2025
CASE MAY BE CITED AS:	DPP v Johnson
MEDIUM NEUTRAL CITATION:	[2025] VCC 185

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Home Invasion (steal) with Firearm; Common Law Assault; Reckless Conduct Endangering Serious Injury; Prohibited Person possess of a Firearm

Legislation Cited:      

Cases Cited:DPP v Armstrong [2022] VCC 1862^; DPP v O’Kelly [2017] VCC 240; Clark v The Queen [2020] VSCA 125; Jackson v The Queen [2020] VSCA 95; DPP v McQueen [2019] VCC 916; DPP v Scandolera [2021] VCC 1688; DPP v Heaven [2022] VCC 473; DPP v Nazeer [2020] VCC 1789; DPP v Bayamis [2020] VCC 566; DPP v Yeoman [2019] VCC 781; DPP v Alecsa [2019] VCC 163; Kelly v The Queen [2020] VSCA 171; Cooper v The Queen [2020] VSCA 288; Rule v The Queen [2022] VSCA 162; Leslie v The King [2025] VSCA 13; R v Verdins [2007] 16 VR 269; Bugmy v The Queen [2013] 249 CLR 571

Sentence:                  4 years and 9 months with a non-parole period of 3 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. O'Doherty Ms S. Thomas	Office of Public Prosecutions
For the Accused	Ms J. Ellis	Giorgianni & Liang Lawyers

HER HONOUR:

1Jahmal Johnson, last year you pleaded guilty to four offences.  The most serious of these offences was home invasion.  Having pleaded guilty on 11 November 2024 the sentencing conversation in the Koori Court at Mildura took place, and then your plea was adjourned to this year for further submissions.  I will now set out my reasons for the sentences I will impose.

Circumstances of the Offending

Incident 1 – Charges 1 and 2

2At 2:49 am on Tuesday 6 February 2024 you went to the home of Mr Kwok Chan and Ms Keli Li, who were the victims in this matter. You arrived in a Holden Commodore sedan accompanied by an unknown co-offender.

3Whilst the victims were sleeping this unknown co-offender jumped over the fence and entered the property by the back door. You also went into the house and at the time you went in you had in your possession a firearm which was described as being 40 centimetres long.  Entering the house with the firearm whilst your co-offender was inside constitutes Charge 1, home invasion with intent to steal whilst being armed and being in company with one other person.

4Mr Chan woke up and saw you in his bedroom. You had formerly been to his house regularly and he knew you as 'Mati' or 'Mathide'. He had last seen you in November 2023.

5Mr Chan and Ms Li cowered in the corner of their bedroom while you and your co-offender searched through their belongings. Among their belongings you found the following items which you placed in a bag:

(a)   $3,000 in Australian currency

(b)   A Westpac Bank card in the name of Kwok Chan

(c)   Victorian drivers' licenses in the names of Kwok Chan and Keli Li

(d)   Two house keys for their home, and

(e)   A Toyota car key

6The charges to which you have pleaded did not include a charge of theft of those items.  Whilst you were putting these items in the bag the co-offender punched Mr Chan in the head. That conduct constitutes Charge 2, common law assault, to which you have pleaded guilty on the basis that you were complicit in your co-offender's actions.

7You and the co-offender then left the property in the same car that you had arrived. The victim did not report the matter to the police at this time.

Incident 2 – Charges 3 and 4

8At 10:52 pm on Tuesday 6 February 2024, which was later in the same day as Incident 1, you went back to the victims' home. At the front door you yelled out 'uncle, uncle'.

9From inside the house the victim observed you through the front security door.  He recognised you and your voice, and he also recognised you as the co-offender with the firearm in the earlier incident.

10You were about a metre away from the door. You had the same gun with you which you pointed at the victim and said 'where is your money? So we don't have to search'.

11Mr Kwok feared for his life, and he told you he would get a key for the door. He then went to the rear of the property where he called the police. You discharged the firearm into the front room of Mr Chan's house. The window was smashed, and the loungeroom walls and door were impacted, as was a tree at the front of the property. Firing the gun at the house constitutes Charge 3, reckless conduct endangering serious injury.  Your possession of that firearm, both before and after the shooting, gives rise to Charge 4, possession of a firearm by a prohibited person.

12After you had fired at the house, you left.

13You were arrested on 9 February 2024.

Personal Circumstances

Family and Upbringing

14You were born on 2 November 1996. You were 27 at the time of the offending and you are now 28.

15Your parents are both from New South Wales and they lived in Robinvale for most of their lives. They now live in Mildura. You identify with the Wiradjuri community on your mother's side.

16Your father suffers from a number of health conditions, some dating back to his childhood. I am told that your mother is presently in good health, and she is working.

17You are one of five children. You have two younger sisters and an older brother and sadly your elder sister passed away in 2020 from a heroin overdose. Your elder brother shares a cell with you in custody and he is your carer there.

18You describe your childhood as good but stressful. You say that you felt loved by both your parents and that they are supportive of you. Your parents have never separated.  You are close to them and to all of your family.

19You also report that violence was a frequent event in your childhood. Your father drank heavily and often assaulted your mother. Your father was imprisoned on multiple occasions on family violence charges, among others. You say that you were physically punished by your father for misbehaving. For a time when you were a child you were placed by Child Protection with your aunt, who lived in Mildura. 

20As well as the violence happening in your home, the community around you in Robinvale was also violent, with brawls in the street and home invasions going on.  Having no other experience to compare with you thought your childhood was normal.

21You report that more recently your parents have not abused alcohol for two to three years, and I was told that their relationship has improved over the last few years and your home life with them is much more settled.

Education

22Regarding your education, you went to Robinvale Primary School, apart from one year when you attended primary school in Mildura. You finished Years 7 to 9 at Robinvale Secondary College and then completed Year 11 at Mildura Secondary College. You struggled with reading and writing through school and continue to have poor literacy.

23You say that sometimes you caused trouble at school because you were not able to do the work. You were also suspended several times for fighting with other students and for your behaviour towards the teachers. Some teachers thought you might have been suffering from ADHD, but you were not tested for that.

24After school you did some months in a generalist program at TAFE, but you stopped attending due to lack of interest in studying.

Culture

25An important part of your life is your connection to your culture.  Throughout your childhood and early teen years you helped your mother, your uncle, and your grandmother in making artifacts. You remember this fondly and you state this is your strongest connection to your cultural background. You would play with your cousins and family in the bush while you helped to collect and cut wood. You would watch family members make and shape artifacts such as boomerangs and didgeridoos. The passing of your grandmother and your uncle, with whom you did this work, was a source of profound sadness for you.

26While you have been in custody you are in a unit with other Aboriginal men, including your brother.  A letter from the manager of Aboriginal Programs at Ravenhall describes you as a proud and respected part of your community. You want to be involved in the Dardi Munwurro program, which is a type of men's behavioural change program.  Her letter also notes your contribution to events and your community while you were in custody.

Addictive Behaviours

27A problematic issue in your life has been your abuse of drugs.  You began drinking alcohol at when you were 16, which was common amongst your peers, but you report that you eventually stopped drinking alcohol. You began using cannabis at 14, but later, following your doctor's advice, you stopped using cannabis due to your heart condition. You used MDMA at the ages of 24 and 25.

28You began using methylamphetamine when you were 20. You used this drug regularly until your arrest. You continued to use methylamphetamine each time you were discharged from hospital, although you did not use that drug when you were in hospital. You used methylamphetamine for the last time at the time of your arrest.

29Your use of methylamphetamine has caused you to experience psychosis, including visual hallucinations. This occurred partly when you have remained awake for extended periods of time. Whilst in custody you have completed the Ice and Me program. You did not describe to Ms Cidoni any coping strategies, or plans for managing your drug use when you are released, but I note that she spoke to you before you had done the Ice and Me program. 

Medical History

30You state that you suffered from some sort of injury when you were a child and your brother assaulted you, and then you required surgery in Adelaide. You broke your hip when you were age 14.

31In 2023 you were hospitalised in Adelaide for a blood clot. You underwent surgery and then were transferred to the Alfred Hospital in Melbourne for care after that. You suffered a broken leg after a fall in Mildura in that year. You were treated in Adelaide and underwent a hip replacement at the same time. You spent three weeks in hospital to recover.

32Also in 2023 you had severe heart problems. You needed surgery at the Alfred Hospital, and you spent two months in the ICU there, including two weeks in an induced coma.

33You were involved in a car collision that left you unconscious, although you did not suffer any other significant injuries. You report physical fights between yourself and your father and your brother when you were young.

34You say that you avoid seeing doctors. The only medication that you take now is for your heart condition.

Mental Health

35You were assessed by Ms Cidoni, a psychologist, and she did some testing on you. You scored 58 on the Verbal Comprehension Index, which places you in the 'extremely low' range, with a percentile rank of 0.3 per cent. Your Working Memory Index score was 80, which puts you in the 'low average' range and has a percentile rank of 9 per cent.  Ms Cidoni thought that this meant your ability to understand verbal information is limited, which reduces your decision making skills and capacity for logical thinking.[1]

[1]Cidoni [65]-[66].

36Your symptom checklist indicated elevated levels of distress, especially relating to low mood and anxiety. You described to Ms Cidoni persistent feelings of sadness and hopelessness. Ms Cidoni considered that this emotional state makes it challenging for you to engage in your daily tasks. You also described high levels of worry and nervousness, and an inability to concentrate. Ms Cidoni was of the opinion that these symptoms make social situations uncomfortable for you and interfered with your overall sense of wellbeing.

37Ms Cidoni assessed you for the presence and severity of Post Traumatic Stress Disorder symptoms. You reached the threshold for significant Post Traumatic Stress Disorder. Ms Cidoni noted that your tests reflected a number of persistent symptoms such as intrusive thoughts, flashbacks, or distressing memories related to past trauma. You experience moderate avoidance behaviours, negative alterations in your thinking and mood, and hyper-arousal.

38In summary, Ms Cidoni considered that you suffer from:

(a)   Substance Use Disorder (which is in remission in a controlled environment)

(b)   Post Traumatic Stress Disorder (PTSD)

(c)   Persistent Depressive Disorder (PDD) with anxious distress, and a

(d)   Neurocognitive Disorder (Provisional)

39After the hearing in Mildura last year, your plea was adjourned so that your solicitors could get a neuropsychological report, in view of the testing by Ms Cidoni, but no report was ultimately provided. 

40You have taken part in a men's group in Mildura, but you have not accessed community support services or any services through the NDIS. You have not previously engaged in programs for your mental health whilst in prison.

Priors

41Your criminal history is for much less serious matters than the offending for which I must sentence you, and you have never before received a sentence involving imprisonment.  You have two matters involving assaulting or resisting an emergency worker on duty and one prior matter of affray and damaging property.  Any appearances in the Children's Court are more than 10 years ago, and have not been alleged by the prosecution as priors.

42I was told that you have some outstanding charges, which have not resolved, and so I am not having any regard to them.

Sentencing Conversation

43When you entered the pleas of guilty when you were arraigned in November last year at Mildura, there was a sentencing conversation which followed.  Elders Aunty Ada Peterson and Aunty Colleen Johnson spoke to you and with members of your family.  Your mother and father, your Aunt Della, your sisters Annabelle and Shyanne were present, as well as your cousin Charlie, his partner, your cousin Lewis and his partner and Danielle, who is another cousin's partner.

44Other people were also there for the sentencing conversation whose names I have not mentioned. 

45It was good to see your support network present at the sentencing conversation, and to hear how positively they all spoke about you.  For example, Danielle spoke about how you always made sure you were not using when you visited her family, and how you were loved by her family and her child.  Your family is clearly important to you, and you have missed a lot of family events and celebrations while you have been in custody.  When Aunty Colleen asked you about your happiest memories, they were all about family events.

46When you were younger you always took part in the Robinvale Easter Camps, a big part of connecting you with your extended family and culture.  You spoke about that and about going on Country with your Uncles.  You learnt about making artifacts like tapping sticks, boomerangs and digeridoos, collecting the wood, and decorating.  You have taught these skills to other Aboriginal men while you have been in custody.

47During the sentencing conversation the Aunties tried to show you your own value, that you have a place in your family and your community, and that you have a lot to offer other people. 

48You spoke about the courses you have been doing while you were on remand and about teaching other men to make cultural items.

49You also spoke about how you would tell other young men in Mildura not to use drugs, and that you would point to yourself as an example of why not to use.  Your cousin spoke during the sentencing conversation about this, too.  Your plan, when you are released, is to get into a drugs and alcohol program, to do the rehab to stay clean, and to link in with the many services that MDAS can provide to you.

50You spoke about how losing your sister, in 2020, to a drug overdose really threw you off the rails.  Then in 2021 your aunt Vickie also passed, from cancer.  She was a very important part of your life also.  You started using drugs a lot more and you stopped going to the Easter Camp.  It was clear that those losses had affected you and all your family.  You say that your auntie who had died would have given you an earful about your offending behaviour.

51You loved sport, but following the hip injury and the many complications and hospital stays after that, you cannot run and be as active as you were.  You still love taking part in sport to the best of your ability and are a good goal scorer in basketball. 

52You did your best to be positive and open in the sentencing conversation.  You were willing to listen to the Elders who spoke to you, and you were respectful to both them, and to me.  It was very positive to see and hear from your family who spoke about you.  While you, Mr Johnson, might sometimes find it hard to see that you have value, and the things that you have to offer, everyone who was in court that day for you sees more in you than you see in yourself.  It is to be hoped that you can accept their support and guidance and get to a better place in your life, where you are clean and being the person that they can see.

Factors raised in mitigation

53Your counsel raised the following factors in mitigation, each of which I take into account in your favour, at arriving at the sentences.

Pleas of Guilty

54You indicated you would plead guilty at an early stage, at the committal mention. You are entitled to a real discount because of these pleas, which have saved the time and effort of both witnesses and the Courts and the prosecution.

Sentencing Conversation

55I also take into account your participation in the Koori Court sentencing conversation. It was an emotionally difficult process in which you opened yourself up to confrontation by, and discussion with, the Elders. You were confronted with your offending and asked to speak for yourself. You were willing to discuss yourself and to hear what the Elders and others had to say, and you appeared to find value in the process. 

56I take into account, in mitigation, both the fact that you were willing to take part in the sentencing conversation, and your engagement in the process.

Bugmy & Verdins

57Your experiences as a child, being exposed to unsafe environments at home and in the community, are relevant because they are part of the many personal and other circumstances which I have regard to when sentencing you.  Your childhood is also relevant because of the impact of those experiences on your choices and behaviour as an adult. The violence and abuse of alcohol and drugs you were exposed to are fundamentally tied to your mental health and your use of drugs.

58Whilst the authorities provide different frameworks to assess a person's culpability, by reference to the case of Verdins and Bugmy, that process of disentangling can be very difficult.  Bearing in mind the interrelationship between your childhood, your present mental health including Post Traumatic Stress Disorder and persistent depression, and your drug use, I accept that your capacity to exercise sound judgment, and to think things through before acting, was reduced, in part due to your early experiences and your mental health now. 

59I accept that your mental health may cause a sentence of imprisonment to weigh more heavily on you than it would for a person not suffering from those conditions, and so I give limb 5 of Verdins moderate weight in mitigation. I also accept that there is some risk that continued imprisonment will be detrimental to your mental health, and accordingly I give limb 6 of Verdins modest weight.

Prospects of Rehabilitation

60Your counsel submitted that I can be optimistic about your prospects of rehabilitation. She pointed me to a number of factors including

(a)   the support of your family

(b)   your relative youth

(c)   the deterring effects of this prison sentence

(d)   the lack of serious priors

(e)   your participation in programs whilst in prison aimed and drug and alcohol abuse

(f)    your abstinence from substance abuse and good behaviour whilst in prison

(g)   your recent work as a billet whilst on remand

(h)   your interest in cultural engagement, particularly with Dardi Munwurro men's program; and

(i)    your willingness to engage in the Koori Court sentencing conversation

61I consider that you have moderate prospects for rehabilitation, but it is critical that you engage with services, such as those provided by MDAS, upon your release.  You need to stay clean of drugs, particularly methylamphetamine, you need to find ways to spend your time that make you feel valuable and useful to your family and your community. 

62If you can build on being drug free, which you are while in custody, and if you set up contact with MDAS or some other similar organisation before you are released from custody, this will help you stay drug free, and it will significantly reduce the chance of you getting into trouble with the law again.

63I consider that specific deterrence does carry weight in the sentencing discretion.

Other Sentencing Factors

Gravity of the Offending

64Home invasion is a serious offence.  The maximum penalty of 25 years' imprisonment demonstrates how seriously Parliament views offending which involves entering another person's home, to commit an offence, armed and in company.  The offending you committed is made more serious by the fact that the weapon you had with you was a gun.  Whilst I accept that you are not a clear‑thinking planner, this offending did involve some planning, and it was targeted at Mr Chan, to get money from a person you believed would have cash in his house.  I consider that this was a moderately serious instance of a serious offence, being Home Invasion.

65You then went back to the house, within a day.  You again deliberately took a gun with you, and again you were there to try to get money from Mr Chan.  You fired this gun at the house, breaking a window which is clearly dangerous conduct.

Other Sentencing Purposes

66General deterrence is a strong factor in sentencing for these type of offences.  A sentence must demonstrate that people who engage in offences of this nature face real consequences.  Furthermore, the sentences must reflect denunciation of the conduct and give rise to just punishment.  Given your personal history, I will give somewhat less weight to general deterrence.

Totality

67I accept that there should be a degree of cumulation between the various sentences.  That said, you went to the victims' home twice in a 24-hour period, each time with intent to get money, and with a firearm.  Both attendances involved significant offending, and there must be a reflection of this in the overall sentence imposed.

Current Sentencing Practice

68Defence counsel referred me to two sentences by judges of this Court, one in respect to a charge of Home Invasion,[2] and the other for a charge of reckless conduct endangering serious injury.[3]  As counsel submitted, there are relevant differences between the facts of those cases, and yours.  I have also reviewed the case summaries prepared by the Judicial College of Victoria, to gain an appreciation of current sentencing practice,[4] - - -

[2]DPP v Armstrong [2022] VCC 1862.

[3]DPP v O’Kelly [2017] VCC 240.

[4]Home Invasion:Clark v The Queen [2020] VSCA 125; Jackson v The Queen [2020] VSCA 95; DPP v McQueen [2019] VCC 916; DPP v Scandolera [2021] VCC 1688; DPP v Heaven [2022] VCC 473; DPP v Nazeer [2020] VCC 1789; DPP v Bayamis [2020] VCC 566; DPP v Yeoman [2019] VCC 781; DPP v Heaven [2022] VCC 473; DPP v Alecsa [2019] VCC 163; Reckless Conduct:  Kelly v The Queen [2020] VSCA 171; Cooper v The Queen [2020] VSCA 288.

69MS ELLIS:  Excuse me, Your Honour.  I believe we just lost my client on the link.

70Sentences imposed in other cases are a relevant factor to consider, insofar as they indicate current sentencing practice, but they do not provide upper or lower limits of the sentencing discretion. 

Sentences

71Having regard to all the various matters raised on the plea, I sentence you, Mr Johnson, as follows:

Charge	Maximum Penalty	Sentence	Cumulation
1. Home Invasion	25 years	4 years	Base
2. Common Law Assault	5 years	3 months	1 month
3. Reckless conduct endangering Serious Injury	5 years	1 year 3 months	6 months
4. Prohibited Person Possess Firearm	10 years	18 months	2 months
Total Effective Sentence – 4 years 9 months

72I set a non-parole period of three years.

73I declare that Mr Johnson has already served 384 days of pre-sentence detention and I direct that that declaration be entered into the record of the court.

74I state pursuant to s6AAA that if Mr Johnson had not pleaded guilty, I would have sentenced him to seven years' imprisonment with a non-parole period of five years.

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