Director of Public Prosecutions v Johnson

[2024] VCC 1484

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-24-00081

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHEYANNE JOHNSON

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2024
DATE OF SENTENCE:	25 September 2024
CASE MAY BE CITED AS:	DPP v Johnson
MEDIUM NEUTRAL CITATION:	[2024] VCC 1484

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Arson (Charge 1) – plea of guilty

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Anderson v the Queen; Smith v the Queen [2019] VSCA 42; R v Dowell (1982) 6 A Crim R 113; McPadden v R [2018] VSCA 57; Tannous v R [2017] VSCA 91; Bugmy v the Queen [2013] HCA 37; R v Mills [1998] 4 VR 235

Sentence:                  18 month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T Glass	Office of Public Prosecutions
For the Accused	Ms M Brown	Victorian Legal Aid

HER HONOUR:

1Cheyanne Johnson, you have pleaded guilty to one charge of arson contrary to sections 197(1) and 197(6) of the Crimes Act 1958. The maximum penalty for this offence is 15 years imprisonment.

2In sentencing you, I have taken into account all of the written material tendered as well as the oral submissions of counsel.[1]

[1] Summary of Prosecution Opening for Plea dated 27 May 2024, Outline of Submissions for Accused dated 5 June 2024, Neuropsychological Report of Ms Jane Lofthouse dated 21 February 2024 and Department of Families, Fairness and Housing Report generated 18 December 2023.

3I note that the first part of the plea hearing was adjourned on 12 June 2024 so that your suitability for a Community Correction Order (CCO) and a Justice Plan could be assessed by the relevant bodies. The remainder of the plea hearing proceeded once those reports were obtained by the Court and provided to the parties.

Circumstances of offending

4The circumstances of your offending are set out in the Summary of Prosecution Opening dated 27 May 2024, which was accepted by your counsel, and I sentence you on the basis of the facts set out in that document. I summarise the offending briefly.

5On Thursday 23 March 2023, you were at your home, which is owned by the Victorian Department of Housing. You had an argument there with your cousin, Christopher Collins. When your mother and step-father arrived at the house you ran out and told them Mr Collins tried to set you alight. Your mother could hear Mr Collins shouting threats from inside the house. Your mother and step-father went into the house and saw that the bed in the front bedroom was waterlogged but smouldering. Your mother poured water onto the bed and put out the fire. She told Mr Collins she was going to call the police. Mr Collins pushed your mother to the ground and held a pair of scissors to her neck. He threatened to kill her, then instead punched your step-father to the head, knocking him unconscious. Your mother intervened to protect him, and Mr Collins pushed her into a glass wall unit and then pushed the unit on top of her. He left the house after threatening to kill them.

6Your mother said she was going to report Mr Collins to police. You told her that if she did so you would kill her by setting her on fire. You were holding a bottle of lighter fluid. You broke a window near the front door of the house and sprayed the window frame with the fluid, then ignited it.  

7Your mother went inside to rescue your step-father, who was still unconscious.

8You then broke another window on the house and set fire to the lounge room floor. As your mother and step-father exited the house, the entire lounge room was on fire. You ran away, yelling to your mother that you hated her.  

9Witnesses called emergency services, and the fire was put out by them. However, there was significant damage to the property.

Arrest and Record of Interview

10On 29 March 2023, you handed yourself in to the Broadmeadows Police Station. You were arrested and interviewed.

11In your record of interview you admitted to using methylamphetamine, marijuana and cocaine around the time of the offending. You said that you lift two fires in the house, and that you knew your mother was in the house when you started the second fire.

12You spent one day in custody, and were released on bail on 30 March 2023.There is one day of pre-sentence detention.

Plea of guilty

13You pleaded guilty at an early stage, prior to a contested committal.

Personal circumstances

14Your personal circumstances were set out in the detailed neuropsychological report from Ms Jane Lofthouse, dated 1 March 2024[2] which was tendered by your counsel.

[2] Exhibit B

15You were born seven weeks premature in March 2004 and required resuscitation at birth. There was concern expressed that you were developmentally delayed as a child but there was no formal assessment. Your mother suffered mental health issues, abused drugs, had poor hygiene and neglected you. Your parents separated when you were a child.  Child Protection became involved in 2007 and 2008 in the context of family violence and the behaviour of your step-father, who also had mental health issues. You had a good relationship with your mother, but not with your stepfather. You spent long periods living with your sister when your mother could not provide care for you. You engaged in risky behaviours.

16You struggled at school and had a teaching aid. You also had behavioural problems and were expelled in Year 9.

17You have been in two long-term relationships, one with your cousin Mr Collins which ended as a result of the current offending. The second relationship was with another person which lasted 6 months and ended in late 2023.

18You started drinking alcohol at age thirteen and would drink two bottles of wine over a weekend about once per month until your arrest. You have remained abstinent since your release. You started smoking cannabis and using methamphetamine casually at the age of twelve and by the age of fifteen you were using methamphetamine daily and smoking one gram of cannabis per day. You reduced your intake of methamphetamine after six months, but continued using both drugs until your arrest. Since that time, you have not used either drug. You have used cocaine four times since the age of 16 but not since your arrest. You also used GHB a few times. You have not abused prescription drugs.

19You have had good health apart from suffering a heart attack in 2024 after accidentally overdosing on GHB.

20Ms Lofthouse formally assessed you as having an IQ of 61, falling in the extremely low range which indicates significant and global intellectual impairment consistent with a mild intellectual disability. She noted that you have moderate to severe executive dysfunction for verbal and nonverbal material, and will struggle to problem solve, develop appropriate plans or control your impulses. She noted that your problems will lead you to miss or misunderstand information, be confused, be irritable and at times, angry. She concluded that the impairment is “developmental in nature”[3], was present at the time of your offending, was likely to have been a significant contributing factor to your offending, and is likely to permanently affect your functioning. She noted that you reported social anxiety since childhood as well as a split personality. She considered that you presented with depression and anxiety as a result of exposure to long term trauma and neglect and were likely to be suffering from these psychological symptoms at the time of your offending.

[3] Report of Jane Lofthouse, dated 1 March 2024, 13

Defence Submissions

21It was conceded by your counsel that arson is a serious crime,[4] often associated with mental impairment.[5] It was submitted that in considering the objective seriousness of the offending, the court ought to take into account the following:

(a)   Your offending was not premediated but an emotional and impulsive response to a distressing situation;

(b)   Financial gain was not a motivation to your offending, in contrast to insurance fraud by way of example;

(c)   Comparative cases often involve far more serious circumstances and/or offending:[6]

[4] Anderson v the Queen; Smith v the Queen [2019] VSCA 42

[5] R v Dowell (1982) 6 A Crim R 113 at 116

[6]Anderson v R; Smith v R [2019] VSCA 42; McPadden v R [2018] VSCA 57; Tannous v R [2017] VSCA 91

22In mitigation, your counsel relied on a number of matters.

23Firstly, you had an unsafe and deprived upbringing, enlivening the principles of Bugmy.[7] Your mother’s mental health issues and substance abuse involved multiple hospital admissions. She was unable to maintain a safe, clean home. Rather, you were surrounded at home by rubbish, animal faeces, and mouldy food. Your step-father’s mental health was also poor. In spite of Child Protection involvement between 2007 and 2020, you were provided with little support.  You only recently obtained a birth certificate and so were not yet receiving Centrelink payments. You only recently received a Medicare card after being charged with this offending.  

[7] Bugmy v the Queen [2013] HCA 37 [43]-[44]

24Secondly, your early plea of guilty was made prior to the cross-examination of any witnesses, which should be seen as an indication of your acceptance of responsibility for your conduct and for your remorse. Your plea also has significant utilitarian value in that it saved the court and the community the cost of a trial.

25Thirdly, you have an intellectual disability, with an IQ of 61, which will be present throughout your life and puts you at risk of “poorly considered decisions, impulsive responses, being slow to respond and, at times, not fully understanding situations leading [you] to periods of confusion and frustration”.[8] It was submitted that this ought to reduce the weight given when considering general deterrence as a sentencing principle. Now that you are in contact with Centrelink, your claim for a disability pension will be able to be pursued once you have a case manager.  

[8] Report of Jane Lofthouse, dated 1 March 2024, 16

26Fourthly, you are currently 20 years old, having just turned 19 when you committed the offence. Accordingly, you fall to be sentenced as a youthful offender, for whom rehabilitation is the paramount sentencing consideration.[9]

[9] R v Mills [1998] 4 VR 235

27Finally, you have no prior convictions.

28In all the circumstances, your counsel submitted that the appropriate disposition was one of a CCO with a Justice Plan Condition pursuant to section 80 of the Sentencing Act 1991.

Prosecution Submissions

29Counsel for the prosecution did not file written submissions. In oral submissions the prosecution submitted that your offending was objectively serious, given that the fire was lit when people were in the house, and that the damage caused cost about $300,000, and that ordinarily youth detention might be an appropriate disposition. However, the prosecution conceded the mitigatory matters relied upon by your counsel and did not press this matter or request a pre-sentence report.

Community Correction Order

30An assessment of your suitability to undertake a CCO was conducted on 31 July 2024 by Corrections Victoria, and it was determined that you are suitable to undertake a CCO. You were assessed as being at medium risk of general reoffending. You admitted to lighting the fires and expressed remorse for your offending. You have found semi-stable accommodation at a women’s refuge share house and report that you have stable income through the Centrelink Jobseeker Program. You have emotional support from your sister Kerrie. The report recommended conditions of supervision, drug assessment and treatment, mental health assessment and treatment and being subject to a Justice Plan.

Justice Plan

31On 13 June 2024, a request was made pursuant to section 80 of the Sentencing Act 1991 to the Department of Families, Fairness and Housing (DFFH) to prepare a pre-sentence report to assess your suitability for a justice plan condition to form part of your sentence.

32On 23 July 2024, DFFH issued you with a statement of intellectual disability.

33On 4 September 2024, DFFH provided a Disability Overview report and a Justice Plan report.

34The Justice Plan report outlines the recommended services that will address your offending behaviour and reduce the likelihood of your re-offending. It was recommended that you engage with a Disability Justice Coordinator from DFFH for the duration of the order. This is to ensure you get access to forensic disability supports and treatments to assist you in developing skills, improving your quality of life and reducing your chances of reoffending. Disability Justice will be able to assist you in obtaining an NDIS plan and choosing a support coordinator who can address your personal goals and disability needs. It was further recommended that you engage with the Disability Justice Coordinator for the purposes of supervision,  guidance, assessment and referrals to support services or allied health professionals to reduce your risk of reoffending and improve your quality of life.

35The report also recommended that you engage in offence-related treatment. This can be facilitated by way of referral to the Youth Forensic Disability Clinical Service (YFDCS). YFDCS will be able to provide you with specialist support and interventions to address your criminogenic needs. It will also undertake further assessment to determine if alcohol or drug treatment is necessary.

Analysis

36Although your offending is objectively serious, I accept the matters put on your behalf by way of mitigation. You are a young offender with an intellectual disability, with an appallingly deprived background,  with no prior convictions, and no proper support structures in place prior to your offending. I accept that your impulsive, offending behaviour began as a row, but was causally linked to your intellectual impairment, your severely impaired executive functioning, your compromised psychological state, and your complex relationship with your mother and step-father. All of these factors were exacerbated by your drug taking in the days leading up to the offending.

37In all the circumstances, having regard to your disadvantaged background, youth, intellectual impairment, absence of prior convictions, plea of guilt and expression of remorse, as well as the overwhelming need for extensive rehabilitative services, I consider it appropriate to impose a non-custodial disposition in the form of a CCO with a Justice Plan condition.

Sentence

38Would you please stand.

39On charge 1, you are sentenced to an 18 month Community Correction Order.

40The conditions of the CCO will include supervision, drug treatment and rehabilitation, mental health treatment and rehabilitation and a justice plan that adopts the recommendations outlined in the report.

41In addition to these conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Correction Orders. These are: that you must not commit any other offences during the period of the order being enforced - that is, 18 months from today- for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Corrections officer. You must report to the Community Correctional Services at Moorabbin within two clear working days, which will be Monday 30 September 2024. You must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Corrections officers.  Do you understand all the conditions I have imposed and the general terms that apply?

42Before you consent to the making of such an order, you must understand that contravening any condition attached to the Community Correction Order, except for a contravention of a direction of the Secretary, is itself an offence punishable by three months’ imprisonment. Contravention of a Community Correction Order also carries with it the prospect that you will be brought back before me and resentenced for the original offending. Do you consent in these circumstances to the imposition of the Community Correction Order?

43Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty I would have sentenced you to two years’ imprisonment.

Ancillary Orders

44I grant the disposal orders sought by the Prosecution.