Director of Public Prosecutions v Johnson

[2024] VCC 192

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-02427

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAROLD JOHNSON

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 23
DATE OF SENTENCE:	9 February 2024
CASE MAY BE CITED AS:	DPP v Johnson
MEDIUM NEUTRAL CITATION:	[2024] VCC 192

REASONS FOR SENTENCE

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Subject:Criminal Law – sentence – guilty plea

Catchwords:              Sentencing – aggravated home invasion – theft – possessing cannabis – willing participant in violent offending – drug use in the lead up to offending – lower moral culpability due to difficulties with responding under pressure and consequential thinking – limited criminal history – chronic alcohol and drug use problem – meaningful admissions at interview – early plea has utilitarian value – moderate risk of re-offending – reasonable prospects of rehabilitation – need for ongoing drug rehabilitation and counselling

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

Cases Cited:Verdins v R (2007) 16 VR 269; Brown (aka Davis) v The Queen [2020] VSCA 60

Sentence:Total effective sentence 4 years imprisonment with a non-parole period of 3 years; 561 days reckoned as already served; 6AAA: 6 years imprisonment with a non-parole period of 4 years 3 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	S. Tatas (at sentence) D. O'Doherty (at plea)	OPP
For Accused	G. Davis	Hilton-Wood Solicitors

HIS HONOUR:

1Harold Johnson, you have pleaded guilty to aggravated home invasion, theft and possessing cannabis, all occurring on 26 to 28 July 2022.

Summary of offending

2The agreed basis for your guilty plea is set out in the prosecution summary dated 3 April 2023.

3In summary, at about 930 pm on Tuesday 26 July 2022, you, Jeremy Murphy, Alisha Khan and Romana O'Neil, and an unknown offender, drove in O'Neil's wagon to Roy Braunack's and Timothy Bourke's house on Hornsey Park, Mildura. Four of you got out of the wagon with weapons, you, a machete, and went to the front door. O'Neil was the driver and stayed in the vehicle.

4Murphy and the unknown man kicked and hit the front door with a tomahawk and another machete. Ms Khan ran back to the wagon, and you stood by and watched the other two.

5Mr Braunack and Mr Bourke were inside the house. Hearing the commotion, Mr Bourke came to the front door only to see the tomahawk used by your co-accused come through the top panel. He tried to brace the door and stop you all getting in, while Mr Braunack watched the CCTV footage on his phone from his bedroom.

6While the one with the tomahawk kept hacking at the door, the one with the other machete kicked the bottom panel in, stuck his head through and said, 'C'mon brother, let us in'. You kept just watching.

7Ms Khan was yelling from outside for another woman to come outside and argued with Mr Bourke through the closed front door about whether she was there.

8The man with the other machete swung it through the broken door panel at Mr Bourke, who retreated to the bedroom with Mr Braunack.

9You and the other two at the front door then entered the house with your weapons, knowing there were people inside. Your intention was to assault them, steal from them and damage their property (Charge 1, aggravated home invasion).

10One of you demanded that Mr Bourke and Mr Braunack come out of the bedroom. Someone hit the bedroom door, someone smashed the TV in the loungeroom.

11You all then left the house, got into the wagon and were driven away. The co-accused with the tomahawk was carrying a guitar that he had stolen from inside (Charge 2, theft).

12Two days later, on 28 July 2022, police pulled over O'Neil's wagon in which you and Khan were passengers and arrested you. You had a small quantity of cannabis on you (Charge 3, possess cannabis).

13Neither of the victims have made impact statements. Nevertheless, I find the incident would have been terrifying and likely to have had long-lasting impacts on them both.

Procedural history

14Following your arrest police interviewed you and you admitted to being at the Hornsey Park incident, you identified yourself on the CCTV footage, and you said you were there to collect possessions for a mate. You otherwise made no comment.  I find those to be meaningful admissions.

15You have remained in custody since your arrest.

16You agreed to plead guilty at a mention on 21 December 2022 at an early stage in the case. Your plea indicates that you have accepted responsibility and are willing to cooperate with the justice system. It also means you have helped the court get on with a backlog of trials due to Covid.

17I accept that you are sorry for what you did. You were honest with police to the extent that you answered questions and you pleaded guilty.

Personal circumstances

18You grew up in Mildura with your mother often working in Melbourne and your father at home. You have a younger brother and two younger sisters, and you were 27 at the time of this offending . You are now 28.

19You went to school in Robinvale where you did okay with a bit of tutoring, but it was not easy. You were suspended a few times since about Year 9 when you started getting into fights, but you kept on trying and after leaving school in Year 10. You went back and completed Year 11. You then went on to TAFE and got qualified for work in construction and cooking.

20You have taken on jobs in mining and then farming but have not had a job since about 2018 when you were about 23.

21Healthwise, you have diabetes, you need Ventolin for your asthma and you take medication for blood pressure.

22As to your mental health, you were admitted to Mildura Hospital for a few days in June 2020 for treatment of what they described as a first episode psychosis (Exhibit 2). You were discharged home after a few days on medication. You did not follow up your treatment and the working diagnosis of your treating team was drug-induced psychosis.

23Then in 2021 you went to the hospital and then Mallee District Aboriginal Service again reporting, among other things, paranoid delusions.  But you did not engage with their attempts to assess you or treat these symptoms.

24Since you were about 20 you have increased your drinking and it had become a big problem by July 2022. The same went for smoking cannabis. Since you were about 24 you have also used ice and in the lead up to this offending you say you were using about half a gram a day. This helps to explain why you might have gotten involved in this caper, but it does not make it any less serious.

25You have a limited criminal history. You were given a bond in 2015 for dealing with proceeds of crime and deception. In 2017 you were convicted and put on a CCO for assault, affray, damaging property and being drunk in public. None of that makes this case any worse and nor will it tend to make the sentence I impose any longer.

26Psychologist, Gina Cidoni, assessed you and provided a report dated 15 December 2022 (Exhibit 1). She stated that thinking things through, keeping your attention up, remembering things and making decisions when you are under pressure, or when things are complicated, are all difficult for you, through no fault of your own. She stated that you sometimes struggle with anger and depression. All of this gets worse, she stated, when you drink and use other drugs, even if they feel good to you at the time.

27Ms Cidoni assessed your risk of getting into further trouble and said you were only a moderate risk of doing so – not low, but not high. She also recommends that you get some support from the NDIS. You will need to apply for this. She also stated that you would benefit from drug rehab and counselling to help you manage your feelings and solving problems in day- to-day life.

28Finally, Ms Cidoni said prison will probably be harder for you because of the difficulties I have just spelt out and that you are at risk there.

29Due to concerns raised by Ms Cidoni, neuropsychologist, Dr Loretta Evans, assessed you and provided a report dated 18 August 2023 (Exhibit 3). After formal testing she stated that while you have challenges in the area of organising your thoughts and thinking about consequences, you do not have an intellectual disability or any other neurocognitive disorder. She stated you may have a learning disorder when it comes to reading and writing. You do not have a traumatic brain injury and any changes to your mental capacity due to your drug use have been mild and you have improved when you are free of drugs. These results are good news for you personally in that you do not have any of these serious disorders.

30Dr Evans reported that you were not experiencing prison to be more onerous and that you appear to have adapted well to that environment. Your mental state has indeed improved there, she said, perhaps due to keeping away from drugs and eating more healthily. Of course, there is a risk of you finding it harder if your mental health declines but at the time of the assessment that was not currently on the cards.

31I accept Dr Evans when she says that the challenges you face with thinking things through will make it harder for you to make your way without support – both with life's complexities generally and more particularly with generating achievable goals to guide your rehabilitation. Without such support, tailored to the needs set out by Dr Evans, your prospects will be seriously compromised.

32Psychiatrist, Dr Elena Bhattacharya, also assessed you, your records, including medical and mental health records in custody and provided a report dated 19 January 2024 (Exhibit 4). You engaged well with her. Dr Bhattacharya has stated that your time in custody since mid-2022 has provided a significant opportunity to assess your mental health. During that time your drug use has very much reduced, if not to nothing. Your mental state has been observed to be stable and there has been no evidence of psychotic symptoms. You have not suffered any relapse or deterioration in your mental state. Based on her assessment, your previous instability in 2020 and 2021 is likely to have been due to your drug use and not any enduring mental illness such as schizophrenia. Again, this is good news for your future health. I accept Dr Bhattacharya's opinion.

33In custody you have spent your time well and you should be congratulated for that. You have occupied your time painting, walking and talking with friends and going to the gym. You have engaged with drug and alcohol, mental health and cultural programs. You have contact with the prison Koori liaison officer and regular contact with your mother and brother, which is very positive.

Sentencing issues

34The maximum penalty for aggravated home invasion is 25 years' imprisonment. For theft it is 10 years and for possessing a small quantity of cannabis it is five penalty units - that is, a fine only.

35Breaking into someone's house is terrible. It is not hard to imagine the fear it creates in anyone who is inside. The prosecutor said you only stood by and watched while the damage was done to the front door, but you were carrying a machete; you were effectively there for back-up; and you followed the other two inside and could no doubt see and hear what was going on, even if you did not do everything or anything that is alleged in there. That makes you responsible alongside them for what they did. The fact that you personally did not damage the door and the prosecutor cannot be sure if you caused any other damage means your role in what happened was a little lower. However, you were a willing participant in this violent offending.

36Due to the seriousness of this type of offence, aggravated home invasion is a Category 1 offence under the Sentencing Act. This means you must receive a prison term and a non-parole period of at least three years unless there are special reasons for not doing so. The law defines 'special reasons' in a very, very restrictive way.

37Your counsel, Mr Davis, submitted that if you had an intellectual disability or a mental illness, this could be a special reason to avoid the three-year non-parole period. However, as is conceded, after the in-depth testing of Dr Evans and Dr Bhattacharya, he agreed that on those results the law prevents me from doing so, and I accept this.

38I will, however, give some weight to the opinions of Ms Cidoni and the two doctors when deciding what your sentence should be. I find that you have relevant difficulties in dealing with complex or highly charged situations and with thinking things through and the likely consequences of your actions. This is relevant in deciding what the law describes as your degree of moral culpability.[1]

[1] Verdins v R (2007) 16 VR 269.

39Accordingly, I find that there are no special reasons as defined in s10A of the Sentencing Act in this case and that I must impose a minimum non-parole period of three years in relation to Charge 1.

40The sentence I impose, however, is aimed not only to deter you from getting involved in this kind of behaviour again, but to deter others and to show the community's denunciation of the offending. Given your relatively short criminal history I have not attached much weight to the need to protect the community from you and I find that your prospects for rehabilitation are reasonable if provided proper supports when you are released.

41It is important that you face up to the fact that you need these supports if you are to overcome your drug problem and to develop your own abilities to think better in the future. You can do these things, I am confident of that, if you work with those who are there to help you, and I encourage you to do that.

42From the reports I have about your time in custody so far, you have a good attitude about this change, and I want to encourage you to keep doing that.

43You have been in custody since July 2022 and during that time there have still been restrictions in gaol due to Covid-19, making your time so far harder than it should have been. I have reduced your sentence for that reason,[2] and, as I said previously, for your guilty plea during the wash-up of the pandemic.

[2] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].

44You can stay seated, and I sentence you as follows:

(a)   On charge 1, aggravated home invasion – 4 years.

(b)   On charge 2, theft – 2 months.

(c)   On charge 3, possess cannabis, you are convicted and discharged.

45The total effective sentence is 4 years imprisonment.

46I fix a non-parole period of 3 years' imprisonment which is the mandatory minimum that I must not go below.

47I declare that you have served 561 days (28 July 22 to 9 February 2024) by way of pre-sentence detention and I direct that this be reckoned as a period already served under this sentence.

48In accordance with s6AAA of the Sentencing Act 1991, but for your guilty plea, I would have imposed 6 years and fixed a non-parole period of 4 years and 3 months.

Ancillary orders

49I am satisfied in accordance with s78 of the Confiscation Act 1997 that the part hockey stick found at the scene and the cannabis and alprazolam seized at your arrest be forfeited and destroyed.

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