Director of Public Prosecutions v Johnson
[2024] VCC 1888
•22 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-24-00818; CR-24-00820
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Kevin JOHNSON Clinton ROSE |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 12 November 2024; 20 November 2024 | |
DATE OF SENTENCE: | 22 November 2024 | |
CASE MAY BE CITED AS: | DPP v Johnson & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1888 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Armed robbery; Theft
Legislation Cited: Sentencing Act
Cases Cited:Bugmy v R; R v Verdins
Sentence: 20 months and 18 month CCO (Johnson); 30 months with a non-parole period of 18 months (Rose)
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms O. Sparrow | Office of Public Prosecutions |
For Mr Johnson For Mr Rose | Ms R. Boreham Ms C. Pezzimenti | Rebecca Boreham Barristers & Solicitors Middleton Maisner Legal |
HER HONOUR:
SUMMARY OF OFFENDING
1Each of you has pleaded guilty to one charge of armed robbery and one charge of theft.
2On 26 January 2024 the two of you and one other man, alleged to be a Mr Kelly, agreed to commit an armed robbery at a shop called Tuyet Mai 2 Asian Grocery, which is on San Mateo Avenue, in Mildura.
3Mr Rose told the police that it was Mr Kelly’s idea. Mr Kelly had said that you should all run into the store and force everyone back from the counter. One of you was to grab the money, while the other two men would keep watch. Mr Rose told the police that it was a clear part of the plan that no one was to get hurt.
4Mr Kelly drove a stolen Mazda 3, with Mr Johnson in the front passenger seat and Mr Rose in the back seat.
5As part of the plan you all covered your faces, and wore clothing that could be discarded. Mr Rose got an orange fluoro hi-vis jumper, and had some bandanas which you all used to cover your faces.
6Mr Kelly drove you all to the store. Mr Johnson went in first. He was holding a long shiny knife, like a machete. The blade was described as being 70-80 cm long. When he went into the store, the owner and his wife were working, and there were around five to seven customers in the store.
7Mr Johnson, went up to the counter, and brandished the weapon he was holding at the owner, Mr Phan. He told him “get out, get out” and swore. Mr Phan told him to take what you wanted. Mr Johnson, jumped over the counter.
8As Mr Johnson was doing this, Mr Rose entered the store. He was carrying a knife, with a blade about 20 cm long, and what looked like a sword, although it had a cover on the blade. Mr Rose walked around the store, knocking things down and swearing. Mr Phan felt that he was behaving like this to keep everyone scared. He was frightened, and told his wife and employee to move to the back of the store.
9Mr Kelly remained near the door of the store. He was also holding a knife.
10Mr Johnson ransacked the area under the counter, finding a metal box with cash in it. He took two containers of cash, and tried to take a third, which was holding coins, but these spilled onto the ground. All told, around $4,000 was stolen.
11Having taken hold of the container, Mr Johnson moved around the counter to the door. Although Mr Kelly said there was still money there, all three of the men left, running back to the Mazda.
12The armed robbery lasted in the range of three to five minutes. Mr Phan, his wife, and his employee were all very frightened by what happened.
13Once back in the car Mr Kelly drove you all to a location where one of you bought some heroin, which it seems all three of you used. It is unclear but it appears that Mr Johnson retained most of the money which was stolen.
14The charge of theft relates to the car used in the armed robbery. This car was stolen from an address in Mildura overnight between 22 and 23 January 2024. It is not alleged that either of you actually stole that car – the charge is put on the basis that you were passengers in that car, knowing it was stolen, on 26 January 2024.
15The investigators first identified Mr Kelly and you, Mr Johnson, from the CCTV footage. Mr Kelly was arrested on 27 January 2024, and the following day made a statement in which he admitted involvement, naming you, Mr Johnson, as one of the co-offenders. He asserted he only took part because he had been threatened by both of you.
16Mr Johnson, you were arrested on 9 February 2024. You were too intoxicated to be interviewed. Once you had read Mr Kelly’s statement, you also made a statement, saying you had no memory of the offending. You said you did recall waking up with around $3,000 and were told by Mr Rose that you had committed an armed robbery with him and Mr Kelly, at the store next to the victim’s business. You said you had increased your use of illicit drugs in the two months before the offence, linking that to your partner moving away and the recent murder of your half-brother. You also said that before the offending you had consumed Xanax and GHB, for the first time.
17Mr Rose, you were then arrested on 1 March 2024. After initially denying the offending, Mr Johnson’s statement was read, and then you admitted your part in the offending.
Timing of Pleas
18Both of you resolved your matters at committal mention stage. Thus each of you pleaded guilty at an early stage, without witnesses being cross-examined at a committal. Your pleas have saved the victims the stress of giving evidence, and time and expense in the prosecution of these matters.
Kevin JOHNSON – Personal Circumstances
19You are now 34 years old. You have one full sister and eight half or step-siblings. You grew up with your older sister, and an older half-brother. The rest of your siblings live throughout SA and NSW, and you have contact with them from time to time.
20One of your half-brothers was given a “hot-shot” in the weeks or days prior to this offending, causing his death. I was told that this was being treated as a murder. You were not able to attend his funeral, because you were in custody.
21You lived, with your parents, in Broken Hill until you were around six. Your family then moved to Dareton, living at the Namatjira Avenue Mission. Your father’s parents and other family lived there, also. Life there was very difficult indeed. You and your parents lived in a shed without electricity or plumbing for around eight years. It was only when your mother was able to get a house there that you moved into a better living situation.
22Your father and older brother were often in gaol or in trouble with the law, for drugs, dishonesty and serious family violence. You recall regularly travelling with your mother to visit your father when he was in prison, in NSW, or travelling with your dad to visit your older brother when he was in prison. You say that this was what was normal for you, then, although now you can see the tragedy of their lives, and the impact on you.
23You describe frequent serious family violence between your parents, which was frightening, and your parents both would beat you on a regular basis. You were witness to other violence in the community around you, with brawls between two warring families, involving members of your father’s extended family. You were living at the mission in 2002, when you were around 12, when a toddler went missing, who was later found dismembered.
24Because of your parents drinking you often had no supervision and would have to find what refuge you could with other families. Drinking and violence were all around you, you were often unsafe and had no one who could protect you. The only safe person was your father’s mother, whom you were left with, sometimes for months, with other cousins. When you were in her care you did attend school, you would be fed properly and able to shower regularly. This lady passed in 2006, which upset you very much.
25Your schooling was limited – you did not attend school in Broken Hill, and your time at school when at Dareton was limited to the times you lived with your grandmother. You attended Year 7, but do not think you ever attended school for a full year and you did not think that you ever attended school for a full year. When you were 13 to 15 you did try to attend KODE School at Mildura TAFE, but your attendance was not regular. You report you did learn to read and write whilst in custody, as a teenager, and then in adult prison.
26Your mother is a Ngiyampaa woman, and your father is a Baarkindji man. You did not learn much about your Aboriginal culture from your parents, or grandmother. They were part of the stolen generation which had lost that knowledge. The culture which was instilled in you as a child and teen was survival, in the tough and dangerous situation you were living. You report that you have learnt more about your Aboriginal culture whilst in custody than you had before.
27A stable and good influence in your life has been your partner, Natalie, whom you have been with since you were only 13. You have three children together, a son aged 10, a daughter aged 12, and now a baby who was born in June this year. You have only been able to see your baby twice – once at the first listing of this plea in August, and then again in the hearing this month.
Mental Health
28You were assessed, for the purposes of the plea, by a psychiatrist, Dr Jindal, in November 2024. In the history he took, he noted a particularly violent incident between your parents, which you witnessed when you were nine years old. You reported being fearful at that time that you would die, and frightened when you were left at other homes, which were also not safe.
29You experience fear, the shakes, anger, paranoia and negative thoughts about yourself. Often your nightmares are based upon violent incidents in your past. You are easily startled, and are almost always on the alert for danger. The Seroquel you had been prescribed in the past helped calm you, when you were suffering such experiences. That Seroquel appears to have been prescribed in respect to a prior diagnosis of schizophrenia, which diagnosis Dr Jindal was apparently unaware of, and did not make himself..
30Although you have previously had thoughts about suicide, you did not have any current thoughts of that nature at the time of Dr Jindal’s assessment.
31Dr Jindal diagnosed you as suffering from PTSD and Substance Use Disorder. He thought the psychotic symptoms you have experienced related to drug use.
Drugs and Alcohol
32You starting drinking and smoking cannabis when you were 11, and then started using amphetamine type substances and opiates from the age of 15, after your first time in custody. You say using drugs and alcohol helped you block out all the terrible things that had happened to you. You have been addicted to heroin for around 20 years. You report that after your grandmother died in 2006, when you were around 16, you started using more drugs to cope, and got into trouble committing offences.
33You have completed a four month period of residential rehabilitation, at Yitjawaddick in 2019, after which you were able to stay clean for nearly 12 months, with the assistance of opiate replacement therapy. Unfortunately you were not able to collect your dose for four days, because you were on remand, and then you could not get anyone to re-prescribe the Suboxone for you. You report that you stopped drinking alcohol many years ago.
34During your current period on remand you have continued with Seroquel, and are on the methadone program. Furthermore, you have started a program directed at drug abuse.
Criminal History
35Your criminal history shows appearances in the courts in NSW and Victoria, with some regularity, since 2010. You have multiple dishonesty priors, for which you have received gaol sentences on several occasions. The longest sentence was 18 months, imposed in 2018 in NSW, for aggravated burglary. The materials provided to me on the plea indicate you were in trouble with the law from at least the age of 14, although that does not form part of the formal criminal record.
Culpability
36Dr Jindal noted that the symptoms giving rise to the diagnosis of PTSD were present long term, and also at the time around your offending. He said that in addition to you experiencing those negative symptoms, your drug use would have made you impulsive and impaired your judgment. He said that “all of these factors would have made [you] more likely to misinterpret situations and take impulsive actions without adequate judgment and forethought.”[1]
[1]Dr Jindal [35]
37Your lawyer submitted that Dr Jindal’s report was evidence that the PTSD symptoms would likely have been present at the time of the offending, and were part of the cause of your clouded thinking, admittedly in combination with the drugs.
38She also submitted that I should have regard to the impact of your childhood on you generally, and on why you began to take drugs so early in life, and then continue to do so. You were not someone who turned to drugs later in life, such as a social user who becomes addicted. Rather, the circumstances of your childhood, and the normalised use and presence of drugs when you were young were significant reasons for you becoming addicted.
39She submitted, therefore, that whilst usually there would be no reduction in culpability where an offender was affected by drugs and committing the offence to get money for more drugs, in your circumstances the combination of your PTSD and childhood as motivators for your drug taking, I should mitigate your sentence to an extent on the basis that your capacity to exercise judgment was impaired.
40The prosecutor submitted that where the effect of drugs was strong, as here, and could not be disentangled from the impact of an underlying mental health condition, then the impact of the first limb of Verdins is significantly reduced.[2] She noted that you voluntarily took the drugs affecting you that day, knowing that you had committed offences whilst drug affected in the past. Indeed, she submitted that this aggravated your offending.[3]
[2]Additional Prosecution Submissions dated 19 November 2024, [25]
[3]Ibid [26]-[30]
41The traumatic experiences you were exposed to, and the lack of safety, education and care that marked your childhood are fundamental reasons for your mental health issues, and drug taking. To the extent that your mental health increases the likelihood of you engaging in “impulsive actions without adequate judgment and forethought” this is linked with your childhood and mental health concerns. I accept that your moral culpability is reduced for this reason in accordance with the principles of Bugmy.[4] This moderation of your culpability captures the impact of your childhood and consequent mental health issues on your long term addiction, of which your drug use at the time of the offending was a part.
[4]Bugmy [40], [43]
42Having had regard to your traumatic and deprived childhood in this way, it seems to me that it would be “double counting” to then also rely on those same facts and connections to give weight in mitigation under the heading of what is referred to as the first limb of Verdins.
43I do not accept that your culpability is aggravated by your drug use, as was submitted by the prosecutor. Your criminal history includes only one charge of assault and one of assault police. I note the charge of reckless conduct endangering serious injury, but this appears to be a driving matter. There is insufficient basis for me to find that you knew that being drug affected, particularly with the new use of Xanax and GHB, that this would cause you to commit a violent offence such as this armed robbery.
Sentencing Conversation
44You took part in the sentencing conversation on 12 November 2024. Aunty Sandra Stewart and Uncle Pete Peterson were the Elders who spoke to you.
45Also present were your partner, Natalie, your children, mother, and Terry Brennan and Ray Wise, from MDAS.
46Aunty Sandra emphasised that you are at a point where you can choose to focus on your family, that you have been on a learning curve, and have the opportunity now to be there for your partner and children, not taking drugs and getting into trouble. She said you had good support and were fortunate that your partner was willing to be here for you.
47Uncle Pete focussed on the terrible impact drugs have on people, how taking drugs and drinking is not part of your culture. He urged you to work on changing your life, to be the better person you can be when you are not using drugs.
48Ray Wise, who works at MDAS, said he has known you since you were a boy and that the door is open for him to help you getting linked in with support services.
49I thought you participated well in the conversation and were open to what the Elders and others said. You said, and I accept, that you had thought in the past that you could sort yourself out without help, but you now realise you do need to get the assistance and support of others. That is a hard lesson to learn, and I hope that it means that you are more open to reaching out and taking the help that can be provided to you.
Prospects of Rehabilitation
50Dr Jindal considers your risk of further offending was largely linked to your drug use. He noted your desire to reduce your use of drugs, and to engage in psychological therapy.
51Whilst I accept this very succinct summation by Dr Jindal, it does not fully articulate the issues that you need to address, in order to remain drug free. You will have to work on dealing with your trauma responses, finding better coping mechanisms, finding activities and purpose in your life that give you meaning and structure. You will need to learn to prefer that way of living rather than your habitual and destructive habit of turning to drugs in the face of things going wrong in life and your mental health. You will need to find new people to turn to, rather than people who are still caught up in drugs.
52You have the past experience of residential rehabilitation in 2019, and staying clean for a period of time after that, so you know that it is hard work to keep on that path. The fact that you have made that past effort shows that you can get clean, and it is a positive indicator for your prospects. Falling off the wagon has led to significant consequences for you on this occasion.
53It is also of benefit that your diagnosis is now of PTSD, rather than schizophrenia, which I anticipate will lead to more appropriate and targeted treatment.
54I accept that your prospects for rehabilitation are fair to moderate. You do have a significant criminal history, and some profound issues to address in dealing with your mental health issues and addiction. But you have started the long road to addressing your addiction and its underlying issues, with some success in the past.
55Specific deterrence does remain a significant part of sentencing, although to a lesser degree than if you were at an earlier stage in addressing your addiction.
Experience of Custody
56Because of your history of escaping custody, you are held as a maximum security prisoner at Port Phillip Prison, and due to some incidents you have sometimes been put into segregation. No issues have arisen so far, in relation to the statement you made to police, but whether this stays the same after you are sentenced is unknown.
57You have started painting, whilst on remand, and find this helpful in managing your anxiety and sadness whilst in custody. You paint every day and have finished eight art works, two of which have been sent to the Torch Program.
58Your lawyer relied on Dr Jindal’s opinion that your PTSD would make your time in custody more difficult, reducing your ability to cope with the stresses and rigors of that environment, and with the potential for deterioration of your mental state. He noted that you were also more likely to be able to work on your addiction, in the controlled environment of prison, which might help you cope better.
59The prosecution accepted that your mental health may make your time in custody more difficult.
Factors in Mitigation
60Your lawyer raised the following factors in mitigation, which I take into account.
61First, you pleaded guilty at a very early stage, and are entitled to a real discount in your sentence for the utilitarian value of those pleas.
62Secondly, I accept that you are remorseful for your offending. I have regard to the pleas of guilty, your statements to police, in which you said:
'I want to apologize to the victim and speak to them in person and say sorry because it would have been scary. They are good people. I got to that store pretty much every day. I regret what I have done and it would never happen again.'
I also have regard to the sentencing conversation in this respect.
63Thirdly, you are entitled to a further reduction in sentence due to your assistance to the police in making a statement identifying the third co-offender. The courts provide an incentive to offenders to assist the authorities by mitigating sentences for that reason. Furthermore, I have regard to the impact that making such a statement can have on you, both in custody and also in your personal life. This is particularly an issue because your partner, Natalie, is Mr Rose’s sister. You have a network of connections here in the community, and are concerned about the impact on your relationship with Natalie, and her family.
64Fourthly, I have regard to the impact of your extremely difficult and deprived childhood upon you, generally, and also in accordance with the principles in the case of Bugmy v R.
65Fifthly, I take into account your participation in the Koori Court Sentencing Conversation. It is a more difficult plea process, as you expose yourself to direct confrontation and discussion with the Elders, and are also asked to speak yourself. I thought that although you were clearly nervous and stressed, you were focussed on what people were saying, and did your best to speak from the heart.
66Finally, I have regard to the risk that custody will be more onerous for you than for a person not suffering from PTSD, and mitigate your sentence to a degree for this reason.
Other matters raised on the plea
67I do not accept that your mental health reduces the need for specific deterrence. As I have already indicated, I consider specific deterrence has some weight in the sentencing discretion, moderated to an extent by your prior and ongoing efforts at addressing your mental health and addiction.
68I do not consider that you are an inappropriate vehicle for the full weight of general deterrence. Your counsel submitted that your, “Aboriginality and personal circumstances and background are relevant to an assessment of the weight to be given to both general and specific deterrence”. I have had regard to your personal circumstances and background, both generally, and in accordance with Bugmy.[5] Your circumstances are reflective of Aboriginal disadvantage and historic and systemic forces, which are undoubtedly a reason for the over-representation of Aboriginal people in custody, but being an Aboriginal man is not a separate or additional basis for mitigation of either type of deterrence.
[5]Bugmy v The Queen (2013) 249 CLR 571
Clinton ROSE – Personal Circumstances
69You are a member of one of the oldest Aboriginal families in this area, the Lawson, Rose and Mitchell families. You were raised by your mother, together with numerous other siblings. Your father left when you were nine months old, and you had no contact with him until you were around 15. Your large family is supportive of you.
70You describe your childhood as pretty good. You are close to your brothers and sisters. Whilst your father was absent your Uncle Harper took on the role of father figure, in your life. Sadly your uncle recently passed, due to cancer, which was a source of great grief for you. You grew up at Dareton Mission, and despite your mother’s best care of you and your siblings, there was violence, drug use, and alcohol use around you in the community, and you witnessed violence towards your mother on occasion by a partner.
71You and your partner have been together for a long time, since you were 16. You have three children together, the eldest is 21, and the others aged four and five. Marita has made it clear to you that you need to stay clean and out of trouble if you want to have a role in your children’s lives. You want to be a positive example for your children, which is a motivator for you to stay on the straight and narrow.
72Around the time your oldest son was born, in 2002, a toddler in Dareton went missing. You were one of the people trying to find him, but he was not found alive. This was hard for you not only because of your normal human reaction to such a tragedy, but also because your own son was still so young. Another source of grief in your life was the death of your sister, who was murdered in March 2013, when she was 24. She was the next child born to your mother after you, and you were close with your sister. Her three children are being raised by your mother. Your partner writes that you blame yourself for your sister’s death, as you were not there to help her.
73Your mother wrote a letter for you, for the plea. She wrote about your family and growing up, and the powerful grief you all experienced following the murder of your sister. You mother also sat with you during the sentencing conversation.
74The court also received a letter from your partner, Marita, who wrote about your childhood, and relationship with her. She says you have a heart of gold. She feels you get drawn into bad behaviour, and drug use, but you always protect her and the kids by keeping away from them when you are using. Marita said, at the sentencing conversation, that she felt bad about urging you to come back to Mildura, when you were working, in NSW. She wishes that she had met you halfway. She emphasises how devoted you are to your children, and that you are very good at supporting and helping your youngest child, who has special needs. It has been harder for her, without you there to help care for your kids.
75When you were a teenager you started dancing with the Baarkindji dancers. You danced with them for five to six years, travelling around sometimes. You had a photo, at the sentencing conversation, of you dancing at Lake Mungo. You have been teaching this skill to others, while you were on remand. You also like to make things, out of wood, carving and painting items for family. You have also spent time, on remand, drawing and being creative. You have also learned to cook, and presently have a kitchen billet whilst on remand.
Employment history
76You liked school, where you had friends and routine, but you found it hard to learn to read and write, and you had a hearing problem in one ear, making it harder for you to pay attention and learn. You finished school at Year 7 level, and although you have a patchy work history and you were able to get a Certificate II in Civil Construction. You are looking at working in landscaping in the future, and now have the further skill of cooking, and have got your Victorian White Card whilst on remand.
Drug History
77You started using cannabis and alcohol after you finished school, when you were around 13. From age 13 to 16 you were chroming petrol, and then from age 16 to your early 20’s you were drinking vast amounts of alcohol. You started using methylamphetamine in 2020, and this quickly escalated to daily use. You have also tried heroin, using it to sleep after using meth, and you have also tried GHB.
78You report using a significant amount of methylamphetamine around four days before this offending, and had not slept for three to four days. You say you are easily “talked into things” when drug affected. You were talked into this offending, by one of the others who wanted money for heroin, and you wanted money for methylamphetamine. Shortly after the offending for which I must sentence you, you and your co-offenders purchased heroin and used it together.
79You are still waiting to get into the Ice and Me program on this period of remand, having been on the waiting list for some time. You are clean whilst in custody, and have also stopped smoking cigarettes. You say you regret the lost time with your kids, and are determined to put drugs behind you.
80You have taken steps to get admitted into the Impact Recovery residential rehabilitation program, which is based in Bendigo. It is not clear when a bed will be available, but this is an extended program, of 12 months, or however long it takes to get to a point where you are able to return to the community with a grip on your addiction. According to the letter provided to me, this will be an intensive supervised period to help you address your addiction and its causes.
Mental Health
81You were assessed by Dr McConchie who thought you had a prolonged grief reaction to your sister’s death, and also that the years of chroming, and presence of a possible learning disorder warranted further investigation. You reported some feelings of depression to Dr Borg, but not to the extent you were seeking help for your mental health.[6]
[6]Dr Borg [16]
82A report was then sought by your lawyers from a neuropsychologist, Dr Borg. She got you to take various tests to assess your cognitive strengths and weaknesses. These confirmed that your capacity to understand and process verbal information was very low[7] as was your ability to read and write.[8] You did better with visually presented information, with your scores in that area being in the average and low average ranges.[9] Regarding your executive function, your non-verbal reasoning was functional, but you tended to be a concrete and linear communicator. You showed reasonable impulse control.[10]
[7]Borg [30], [31]
[8]Borg [30],
[9]Borg [32] - [35], [39]
[10]Borg [36]
83Dr Borg assessed you as having a language and specific learning disorder, in respect to reading and writing, and also a mild neurocognitive disorder, linked to your history of drug abuse.[11]
[11]Borg [42]-[43]
84Dr Borg did not link your learning disorder to the offending. She and Dr McConchie both thought your drug abuse was the primary driver of the offending.[12]
[12]Dr Borg [44], McConchie page 4
85I do not accept your counsel’s submission that your culpability is lessened by reason of a mental health issue. Whilst drug abuse is described as a “stimulant use disorder” this does not enliven the principles in Verdins. Furthermore, whilst you started using drugs when still only about 13, your use of methylamphetamine and heroin is much more recent – 2020 – and no particular trauma or event was nominated to indicate that you commenced using those drugs due to a mental health issue.
86I also do not accept that there is an evidential basis to conclude that your mental health will make your time in custody more difficult, nor that there is a substantial risk that your mental health will suffer whilst in prison.
87I do accept that the information provided in Dr Borg’s report, about your difficulty in taking in verbally presented information, will be of assistance to you and those seeking to help you in the future.
Sentencing Conversation
88You also took part in a Sentencing Conversation with Uncle Peter Peterson and Aunty Sandra Stewart, on 12 November 2024. Your partner was there, and your sister Natalie, as well as your mother, and your three children.
89Aunty Sandra said that it was good to hear that you have clear plans for the future, in addressing your drug use, and working and being with your family. She spoke of your need to be a good role model for your children – with your eldest son being 21 – and to others in the community. She pointed out that as a man now 40 years old, you were at a fork in the road, where you can sort yourself out and be there for your family, or keep using and ending up in prison.
90Uncle Pete also focussed on family, urging you to change your lifestyle and to treat the sentencing conversation and your sentence as a basis and motivation for change for the better. He spoke of the evil that drugs can cause, making good people selfish and violent, causing great harm to themselves, their family and the community.
91Several other people present spoke, too. Mr Brennan, who has known you for a long time, spoke about driving the streets looking for you when you had fallen back into drug use, and how hard that was for your mother and partner. He believes that you are a good man, who fell into bad company and got into drugs, leading you further away from a healthy life with those who love you. He explained how once you are sentenced, you can formally engage with MDAS, who can provide help for you before and after release, for example, helping you find work, and making sure you have housing.
92Ray Wise, also from MDAS, has also known you for many years, and has seen the toll drugs have taken on you. He said that now you look and sound like a completely different person. He said he was willing to help you with support and referrals. He said he would like to see you getting into dancing again, and that it would be great to see you teaching that to others. He spoke of the pride you and others in your dance troupe had, and would be great to see you taking that pride in yourself again.
Rehabilitation and Specific Deterrence
93When assessing your prospects for rehabilitation, I must look at the past, including your criminal record, but also at what is going on in your life now, and what you have in place to help you stay clean and out of trouble in the future.
94You have a long criminal record, with some serious offending in it, including armed robberies, and past times in prison. You have a longstanding drug abuse issue, especially related to cannabis, with meth and heroin more recently. It will be hard work for you to overcome those addictions, and to keep out of the company that will entice you back to using drugs.
95On the other hand you are now 40 years old. You have three boys. Your eldest son needs to see his father as a person he can respect. Your younger boys need your presence, and your practical care and support. Your partner needs you too. She is a loving support for you, and sets good boundaries. You have the support of your mother, siblings and your community.
96Furthermore, there are the supports which MDAS can offer to you, before and after your release from prison, as well as the Impact resi rehab, if you can get a bed there. You also have work qualifications and experience, and getting a job and providing for your family can be a stabilising factor for you.
97You impressed me in the sentencing conversation as wanting to sort yourself out. I hope that you can take the helping hands offered to you, and become the person you want to be.
98Having regard to all of these matters, and others I have not mentioned, I consider your prospects are effectively the same as Mr Johnson’s, that is fair to reasonable. Like him, you have work to do which will be hard, but you also have started that work before, and have the foundations to keep going.
99In light of that finding, specific deterrence does have some weight in the sentencing discretion.
Factors in mitigation
100First, you are entitled to mitigation of your sentences by reason of your early pleas of guilty, and the real utilitarian benefits of that.
101Secondly, I accept that you are remorseful. You said in your statement
'I feel terribly disgusted in myself. If had a button to rewind everything, then I’d do that.”
'I’d like to deep deep say sorry to the victims. If I was in the right state of mind I wouldn’t have done it. I go and get $1 smokes all the time and she’s a lovely lady.
'I went to get smokes from the [victims’] store the other day and I was worried they might recognize me but I wanted the smokes and she was really nice, asking how I was. I didn’t want to be there long or look her in the eyes as I was disgusted by being in there.'
102You also expressed regret for scaring the victims, to the psychologist who assessed you, and also to Dr Borg.
103Thirdly, I have regard, in accordance with the case of Bugmy, to the circumstances of your childhood, which were difficult and exposed you to violence, drug and alcohol abuse from an early age. I accept, as I did for Mr Johnson, that the impact of your childhood is ongoing, and that your culpability for this offending is somewhat reduced on that basis, despite the fact that drug intoxication and seeking were the principle cause of these offences.
104Fourthly, you are entitled to the mitigating effect of having taken part in the sentencing conversation with the Elders. You spoke at the sentencing conversation, and I observed you throughout. You seemed to me to be open to what people were saying and sincere about your desire to sort yourself out.
Other Sentencing Factors – Both Offenders
Sentencing Act Provisions
105Armed robbery is a category 2 offence, so that a sentence of imprisonment, not combined with a CCO, must be imposed unless one of the legislative exceptions applies.
106Mr Johnson’s lawyer submitted that the exception in s5(2H)(a) applied, which was accepted by the prosecution.
Gravity of Offending
107Mr Johnson took the active role in the offending, once in the store. He entered first, threatened the owners with his machete, jumped the counter, and then searched for cash behind the counter. Kelly and Mr Rose backed him up. This was a planned offence, with a stolen car as the transport, to the store and as the getaway car. All three offenders wore something to cover their face, and carried a bladed weapon.
108Whilst this was not a sophisticated instance of armed robbery, it was not a lower level of a spontaneous offence with little planning or premeditation.
109The charge of theft is not a serious instance of that offence, but is also not at the lowest end of the scale.
General Deterrence, Denunciation, Just Punishment, protection of the community
110Each of these factors has a significant role in sentencing both of you. As I have discussed earlier, I do not think that the weight to be given to these, particularly general deterrence, is reduced for either of you.
Victim Impact
111Whilst no victim impact statements have been provided, as both of you accept, this would have been a very frighting event for the victims, and indeed anyone else present.
Parity and totality
112Both of you pleaded guilty to two offences which overlap in time. It is not alleged that either of you stole the car, only that you were passengers in it knowing it to be stolen. I will not order any cumulation between the sentences on Charges 1 and 2.
113
Whilst each of you participated in these offences, in very similar ways, there are differences in your personal circumstances and thus the matters in mitigation, which will lead to a different sentences being imposed on each of you. Whilst
Mr Johnson had a more active role in the actual offending, in the store, the prosecution position was that each of you was effectively as culpable as the other, in view of the planning and preparation for this as a joint offence.
114Mr Johnson can rely on a significant factor in mitigation that you, Mr Rose, cannot. In addition to the mitigation afforded by reason of Mr Johnson’s assistance to the authorities, my sentencing discretion regarding him is not fettered by the legislative requirements of s5(2H) of the Sentencing Act, whereas for you, Mr Rose, I could not impose a combined sentence, even if I thought that was within range.
CSP
115I was not provided with any comparable cases by the parties. I have had regard to the summaries prepared by the Judicial College of Victoria, to assist me with an appreciation of the range of sentences imposed for armed robbery, since 2020. Obviously, each case turns on its own facts, both in respect of the offending and personal circumstances of the offenders.
Disposition
116
Mr Johnson, your lawyer urged me to impose a sentence that combined imprisonment with a CCO. She noted that when taking into account your time on remand, I could impose a further period of imprisonment of no more than
12 months on top of what you have already done, and them combine that with a CCO. She submitted that such a disposition would ensure that you are released with supervision and support to assist you in reintegrating and working on your rehabilitation. She also submitted that a CCO would be appropriate for Charge 2.
117Mr Rose, your lawyer accepted that in view of the Sentencing Act provision, and the circumstances of the case, that a jail sentence with a non-parole period would be the result.
Kevin JOHNSON
118Charge 1 – theft – 3 months' imprisonment.
119Charge 2 – Armed Robbery – 20 months' imprisonment.
120I declare that you have already served 287 days on remand, and I direct that that declaration be entered into the records of the court. I note that that 287 days amounts to nine months and 13 days.
121
The sentence on Charge 2, that is 20 months, will be combined with CCO of
18 months duration, with the following conditions:
· Section 48D(3)(a) - Treatment & Rehabilitation in respect to drug abuse;
· Section 48D(3)(e) - Treatment & Rehabilitation regarding your mental health;
· Section 48D(3)(f) - Treatment & Rehabilitation in terms of engaging any programs to reduce reoffending directed by the Community Corrections Officer, and also supervision.
122I state that pursuant to s6AAA if you had not pleaded guilty I would have sentenced you to four years' imprisonment with a non-parole period of two and a half years.
Clinton ROSE
123Charge 1 – theft – three months;
124Charge 2 – Armed Robbery – 32 months;
125Total effective sentence is 32 months, with a non-parole period of 20 months.
126I declare that you have already served 267 days of pre-sentence detention, and I direct that that be entered into the records of the court.
127I state if you had not pleaded guilty I would have sentence you to four years and three months' imprisonment, with a non-parole period of three years.
128I will disqualify each Mr Rose and Mr Johnson’s from obtaining a driver’s licence for a period of three months from today. That means that that disqualification will have finished by the time each of them is either released or is able to be paroled.
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