Director of Public Prosecutions v Johnson
[2023] VCC 810
•16 May 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01662
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT JOHNSON |
---
JUDGE: | Her Honour Judge Gaynor |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 April 2023 |
DATE OF SENTENCE: | 16 May 2023 |
CASE MAY BE CITED AS: | DPP v Johnson |
MEDIUM NEUTRAL CITATION: | [2023] VCC 810 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Misconduct in Public Office
Legislation Cited: Sentencing Act 1991
Cases Cited:The Queen v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169
Sentence:6 months’ imprisonment and 10 Community Corrections Orders to be served concurrently for a period of 2 years upon release
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms B. Bleazby | Office of Public Prosecutions |
For the Accused | Ms A. Roodenburg | Tony Hargreaves & Partners Lawyers |
HER HONOUR:
1Brett Johnson, you have pleaded guilty before me to one charge of misconduct in a public office. The facts underlying your offending are as follows.
2You are a former member of the Victorian Police force, which you joined in March of 2006 and from which you resigned as a result of the charges on
27 August 2021.3In broad terms, during your employment, you pursued intimate personal relationships with three vulnerable women you met in the course of your work and created a conflict by seeking each relationship and concealing this from your superior duties. This was in dereliction of you sworn duty. Further, you utilised the Victorian Police Law Enforcement Assistance Program (the LEAP program) and conducted unauthorised entries on vulnerable women that you met through the course of your duty as a police officer as well as two women you met socially.
4As a background, each time a Victoria Police member accesses the police database they are required to read and respond to a series of questions which set out the basis on which police are bestowed the privilege of seeking this background material stored on their LEAP database.
5I now turn to the specifics of the offending, beginning with Charge 1.
6Charge 1, relates to the complainant, Molly Orde[1], who was in an intimate relationship with you for four to five months in 2010, after she met you through her sister. After that relationship she only had sporadic contact with you and she deleted your number once the relationship ended. An audit revealed that you had conducted unauthorised entries on Ms Orde, using the LEAP databases on eight separate occasions, between 12 October 2010, and
30 December 2016. This comprised numerous entries, for example there was seven entries on 12 October, there were nine entries on9 October 2015 and so forth.[1] A pseudonym.
7On each occasion you accessed Ms Orde’s licence details which displayed her current address and photograph as well as her LEAP history containing involvements with police and her current telephone number. There was no legitimate basis for these searches.
8Charge 2, relates to Ms Orde’s sister, Toni Orde[2], whom you met sometime in 2010 and with whom you formed a friendship in 2012 and 2013 and with whom you had sporadic contact over the years. You sought an intimate relationship with Toni Orde, which she did not reciprocate. An audit revealed that you had conducted unauthorised checks on Ms Toni Orde using the LEAP database on 25 separate occasions, between 5 July 2011 and 25 July 2017. These checks were often done a number of times on a day, for example, on 24 June 2014 there were 16 entries by you making an unauthorised check on the LEAP database.
[2] A pseudonym.
9On each occasion you accessed Ms Orde’s licence details which displayed her current address and photograph as well as her LEAP history in relation to involvements with police including family violence incidents and her current telephone number. You had no legitimate basis for doing this.
10Charges 3 and 4, relate to the complainant, Ms Reilly[3], who you met in the course of your employment while she was working as the manager of a brothel in Richmond. She was a witness in relation to an employee's stolen laptop that had been reported to police. You were involved in the investigation and you contacted Ms Reilly, telling her she was lucky not to be charged with receiving stolen goods and she told you to 'Get fucked.' You said you would park a marked police car out in front of the brothel to affect business, and Ms Reilly then apologised to you and about a week later you went to the brothel to take a statement from her about the stolen laptop. Ms Reilly was using drugs at the time.
[3] A pseudonym.
11Later that night, you started texting Ms Reilly, using your personal phone and she, flattered by the attention of a police officer, offered you and your 'police friends' a discount on services at the brothel. You began a sexual relationship with Ms Reilly about a week after taking her statement which you did not reveal to your supervisors. On one occasion Ms Reilly went to the Richmond police station where you were working and met with her. You told colleagues you were photographing her car as it had been in an accident when in reality the two of you engaged in sexual activity in the car park at the police station. On two other occasions, Ms Reilly attended the police station after being told by you that you were there on your own and the two of you had sexual relations in an interview room while you were on duty.
12During 2012, you told Ms Reilly you were getting engaged to your partner. Ms Reilly at the time was experiencing suicidal ideation and had been diagnosed with depression and she thereafter made three attempts on her life in a one-month period. Ms Reilly was the subject of a mental health transfer on 9 April 2012 and was objectively a vulnerable person due to her history of mental health issues, drug abuse, and family violence. At some stage after the two of you began a sexual relationship, Ms Reilly told you about the extent of the problems in her life, including her drug abuse, child custody issues and attempts on her own life.
13On 31 July 2013, you took Ms Reilly to the pictures and then engaged in sexual activity with her. Throughout the relationship you and she exchanged explicit text messages which included naked photographs and she also detailed an assault perpetrated upon her.
14In 2015 during a text conversation, Ms Reilly detailed she was losing her children the next day to the DHHS and expressed suicidal ideation, you responding with a text, 'Wanna fuck?' Other materials were discovered such as an email chain in 2015 between the two of you relating to an assault committed upon Ms Reilly during which you asked for and received sexually explicit pictures from Ms Reilly, you continuing to pressure her to send more.
15Ms Reilly estimated that the last sexual encounter between the two of you occurred in 2017 and that the two of you had had sexual interaction
15-20 times. You also conducted unauthorised LEAP entries of Ms Reilly through the course of the relationship you had with her between 4 October 2012 and 9 October 2017. These included multiple entries by you on particular days, for example, on 16 October 2016, you made 10 entries in relation to Ms Reilly on the LEAP database system. There was no legitimate purpose for you accessing the LEAP records in this way.16Charged 5, relates to the complainant, Ms Calombaris[4], who was in a short relationship with you in 2009. On 2 October 2015, you accessed LEAP records relating to Ms Calombaris, including her licence details which also included her current and previous addresses and phone numbers. You opened a folder relating to an incident where Ms Calombaris had her wallet stolen from the Doncaster Shopping Centre, even though you had no involvement in the investigation of that incident. You again accessed personal details of Ms Calombaris on the LEAP database on 5 October 2015 without any legitimate basis.
[4] A pseudonym.
17Charge 6, relates to the complainant, Ms Piri[5], who at the time was aged 19. You were working at the Fawkner police station at which time police, including yourself, were alerted to a family violence incident involving Ms Piri. From about 10.25 am you began messaging Ms Piri using your personal number before attending her home. She reported to you that she was in fear of her ex-partner and a family violence safety notice was obtained by police and served on that ex-partner. You continued to text and call Ms Piri from your personal phone, including when you were off duty and the messages became flirty in nature.
[5] A pseudonym.
18You asked to meet her off duty and tried to pursue an intimate relationship with her, asking if she would like you to attend her home for a welfare check, which Ms Piri however, rebuffed. She stopped returning your messages in June 2019. You sent her approximately 917 texts, she replying approximately 576 times. Between 18 and 21 March 2019 you were on nightshift with another officer and attended Ms Piri’s street patrolling the area telling the other officer you were patrolling for drug activity even though the street was quiet.
19By seeking an intimate relationship with Ms Piri who was a vulnerable member of the community, who you met through your employment as a police officer, you created and concealed a conflict of interest from your supervisors and you also accessed LEAP database to view her personal details on
5 September 2018, totalling seven entries. You had no legitimate business purpose for accessing those records.20Charge 7, relates to the complainant, Ms Hardy[6]. On 7 October 2018 another police officer was investigating a family violence complaint regarding Ms Hardy and requested that she attended the Fawkner police station to provide a statement. That officer was not available so you conducted the interview. Following your involvement in the report you conducted unauthorised LEAP entries of Ms Hardy which were not relevant to the investigation on five occasions between 1 December 2018 and 15 July 2019. You had no legitimate purpose to access Ms Hardy’s LEAP history.
[6] A pseudonym.
21Charge 8, relates to the complainant, Ms Barea[7], who reported her ex-partner for breach of an intervention order to the Moonee Ponds police station.
Ms Barea had a significant family violence history which included assaults committed upon her. You attended with another officer and spoke to her and later that day texted her from your personal number to arrange taking a statement. Ms Barea did not attend at the time arranged and you contacted her 34 times by text and one phone call during 13 January 2019 and 17 January 2019. You sent most of the text messages while off duty, then performed two unauthorised LEAP entries on Ms Barea on 11 February and 5 July 2019. You had no legitimate purpose for accessing her LEAP records.[7] A pseudonym.
22Charge 9, relates to the complainant, Ms Lees[8], who reported on bail at the Fawkner police station on 2 June 2019 at 8.50 pm. You attended at the desk and chatted to her as she signed on and told her that other officers were laughing about your moustache. About an hour after her attendance at the Fawkner police station Ms Lees received a text message from you, which read, 'Thanks for liking my moustache. Brett'. She replied to the text and then discovered that you had added her on Snapchat and sent a message saying, 'Hi'. She did not know, and who it was asked that person who they were. You told her that you were the guy with the moustache and asked her to catch up.
A conversation then continued on Snapchat during which Ms Lees felt intimidated and uneasy and tried to keep the conversation to a minimum.[8] A pseudonym.
23The next day you sent more messages on Snapchat and these continued throughout the day, you telling Ms Lees you were bored and you asked her to come to the police station and her to say hello. Ms Lees stopped responding and also did not sign on at Fawkner that day, which was in breach of her bail conditions. On 4 June 2019 you continued to send her messages via Snapchat of a flirty nature asking for photographs and what she was doing, and said you would be out on the van during your shift, between 3 and 11 pm that day. You also sent Ms Lees a picture of yourself in a police uniform.
24At 5 pm you called from a private number and met Ms Lees who asked who it was and then felt intimidated and began to panic when she realised it was you. You reminded her of her obligation to sign on for bail and that she could get into trouble if she did not do so. A short time later Ms Lees received another call from a private number which she answered, you telling her that you were Brett and that she needed to use her Snapchat more regularly. Her description of this encounter to police was that you used an aggressive tone. Ms Lees hung up feeling intimidated, opened Snapchat and there found a message from you asking her what she was wearing. You then sent another message asking what she was doing that night. Ms Lees replied that she was spending time with her son and you told her you were finishing work at 11 pm and would contact her after that.
25Ms Lees continued to receive calls from a private number which she did not answer and at 10.50 pm saw a message from you asking her to come downstairs, saying you were in the café below the building. Ms Lees replied, 'You've got my address, LOL' adding the LOL to make sure she did not upset you but said she was not coming downstairs. You replied, telling her she should come down now as you did not have much time. Ms Lees continued to insist she was not coming down, but as you persisted, you causing her to fear you. You told her you were knocking at her door, to hurry up and open it and Ms Lees then locked all her doors and turned off the lights believing you to be at another unit as she could not hear knocking. She told you to go home and you eventually left. Ultimately, Ms Lees reported what had happened to her Court Integrated Services worker on 5 June 2019.
26On 6 June 2019, you continued to send messages to Ms Lees via Snapchat telling her that you were working and asking her to tell you when she was signing on for bail, so you could come out and speak to her. Ms Lees replied that she was shy and embarrassed but was concerned about seeing you. Ms Lees also asked that if she came in now, would she avoid seeing you, and you told her you would see her. At that point she was crying and distressed. Ms Lees waited until 8 pm to sign on and took her son with her. She received messages from you from 4 pm until midnight and around 10 pm, Ms Lees checked her Snapchat and saw that you had sent several messages at around the 4 to 4.30 mark, telling her to come in and that you were bored. On 7 June 2019, Ms Lees was arrested and on the way to the Fawkner police station had a panic attack and reported your behaviour to another officer.
27An audit of your phone revealed that between 2 June and 11 July 2019 you had made 10 calls to Ms Lees and that there had been 68 text messages between the two of you. You also conducted unauthorised LEAP entries on
Ms Lees on the 2nd, 3rd and 11 June 2019, comprising 15 entries over all. You used your position to access to LEAP database to find out personal details about Ms Lees and pursued a relationship with a vulnerable community member in breach of your duty. You also created a conflict of interest which you concealed from your supervisors and you had no legitimate purpose for accessing the LEAP records in relation to Ms Lees.28Charge 10, the final charge, relates to another complainant, Ms Johns[9]. On 19 June you were working at the Sunshine police station with another police officer, and at about 7.15 you and another officer, Constable Harkin attended a family violence incident involving Ms Johns. Ms Johns was wearing a dress and told police in her statement that you stared at her, making her feel uncomfortable. The day after your attendance there, you began messaging Ms Johns using your personal phone number. You asked her if she had Snapchat, she replied she did not. You messaged her again on 21 June 2019 from your personal number to which Ms Johns replied and you sent a message with a red heart and Ms Johns then blocked your phone number.
[9] A pseudonym.
29Call charge records indicated that between 20 June 2019 and 21 June 2019, there were 20 text messages between yourself and Ms Johns the majority of which were conducted while you were off duty. You also conducted unauthorised LEAP entries on Ms Johns accessing her personal information on three occasions, on 23 June, 27 June and 18 July. You had no legitimate purpose for accessing the LEAP records of Ms Johns.
30The maximum penalty for misconduct in a public office, is 10 years' imprisonment and/or 1200 penalty units.
31I now turn to the victim impact statements.
32It was quite clear from the victim impact statements that were read out during the plea that you caused immense distress to your victims. Ms Reilly wrote that she felt very betrayed by your conduct. She said you were someone she trusted. She believed that because you were a police officer you were a decent and honest person and that you were there to protect people. She said that your actions caused her to develop severe mistrust in relation to other persons in her life including subsequent partners. It also affected her capacity to parent her children. She stated,
'I am frustrated that I never saw the real Brett Johnson over 11 years and I am ashamed that as a grown woman I couldn't recognise lies being told to my face. I am disgusted that he used and abused his position of public policing to gain sex.'
33She said, she had moved a number of times in fear of you learning her new address, and worried about you taking payback given your position as a police officer.
34I also received a victim impact statement from Ms Calombaris, who I accept has been massively affected as a vulnerable person by your actions. She stated that she lives in hypervigilance, is suspicious of men, and has developed PTSD. She has relentless depression in relation to PTSD, suffers panic attacks, has days where she cannot leave the house during anxiety and that at one stage saw all men as predators. This affected the way she dressed, making sure that she did not dress in anything she would have described as remotely feminine in fear of attracting unwanted attention. She said she is now wary of policemen, does not trust them, gives them a wide berth in the street, gets anxious when she see them. She said, very sadly, in my view,
'Growing up, I was always taught that if you're good, good things will happen to and for you. This is apparently called a just world view. I was raised to believe in the best in people in redemption and in forgiveness. I was taught that forgiveness sets us free and holding onto wounds only hurts ourselves. What I have experienced from the defendant has overhauled everything I was taught to believe as a child and an adult. I haven't been able to find forgiveness in my heart, which has challenged the way I view myself and the world around me and question myself as a good person.'
35I also received a report from Ms Calombaris’ psychologist who has confirmed Ms Calombaris’ post-traumatic stress disorder for which she has been receiving treatment since March of this year. The psychologist noted the symptoms associated with PTSD specifically panic symptoms, anxiety, emotionless, dysregulation and disassociation which she said were triggered by reminders of, and in speaking and thinking about the accused. Ms Calombaris has spoken about incidents in which you looked up her personal details including her address and that of her family's address using a police computer system without her consent.
36I now turn to your personal circumstances.
37You are 42 years of age and have no prior convictions. You are the elder of two sons born to your parents. You told the psychologist Patrick Newton whose report dated 22 March 2023 was tendered on the plea, that you had a normal and happy childhood. Your father worked for the Gas and Fuel Corporation for many years. Your mother had the occupation of home duties. You described your family as a closeknit family unit. You still enjoy the support and love of that closeknit family unit.
38You completed Year 12 and joined the Royal Australian Airforce where you worked for six years, based mainly in Darwin and Townsville.
You entered the Police Academy in 2006, some weeks after leaving the
Royal Australian Air Force (RAAF). You left the RAAF, it would seem as a result of a breakup between yourself and your then fiancé who you discovered had been unfaithful to you. It would appear from both the reports of Dr Newton and the reports of the personal psychologist on whom you have been attending on and off for some years, that the breakdown of that relationship caused a serious fracture in your personal self-esteem and it was the view of Mr Newton that you suffered from a, what he described as a ‘perennially fragile self-esteem.’ I will revisit the diagnoses of both psychologists a little later in these sentencing remarks. Returning to your personal details.39You were a member of the Victoria Police force between 2006 and 2021 achieving the rank of Leading Senior Constable and at times working as an Acting Sergeant. You were stationed at Eltham police station to late 2010, then transferred to Richmond police station where you remained for four years. You then went to a one-man station at Pyramid Hill. You suffered some bullying within the police force at the time and after some years transferred to Fawkner police station. You resigned from the police force in August 2021 in the context of being charged. You are now in the final year of a four-year adult plumbing apprenticeship which you have been undertaking in your brother's business.
40Returning to Mr Newton's report, he stated that you reported a severe emotional response to the end of your relationship with your then fiancé and suffered depression and anger which caused you to leave the RAAF. You then had a number of short-term relationships with other members of the police force until you met your now wife who is also a police officer. The two of you met in 2010, your marriage remains on foot and you have two children, a son aged 10 and a daughter aged five. Stressors came into your relationship with your wife very early in the relationship around reproductive problems where your wife suffered multiple miscarriages between each successful birth. This it appears, caused continual stress and anxiety which you dealt with by withdrawing and immersing yourself in work-related activities. That also led to you turning to other women and extra-marital affairs to gain, what Mr Newton called, short-term gratification through flirtatious banter and opportunistic sexual contact. He noted that the more you did this, the more this affected your marriage and the problems there became worse. Mr Newton stated,
'In turn this led to recurrent problematic behaviour on Mr Johnson's part. On his report such dynamics underpinned much of his offending conduct.'
41It was Mr Newton's view that you have suffered a depressed mood since the early 2000s essentially after the breakup of your engagement. You became further depressed from 2010 in the context of the multiple miscarriages suffered by your wife. As I have said, in 2016 you were bullied at work at Pyramid Hill, in the context of you taking a lot of time off work due to your wife's miscarriages. You were reprimanded by a senior officer in terms of, 'Don't blame the Victorian Police force because you can't get your wife pregnant', and you then attempted suicide by overdose. You also have suffered resurgent suicidal thoughts since being charged with this offending.
42In 2005, after your relationship broke down you began experiencing sleeping problems for which you were prescribed the medication Stilnox. You also used Stilnox when you joined the police force and undertook night shifts. Eventually you formed a reliance on this medication, eventually using it every night and in larger than prescribed doses. By 2009, you had become dependent, you were using up to seven tablets a night and in 2011, sought psychological assistance from Dr Gurtman. You continued to work with him until 2013, when you entered the Albert Road Clinic and withdrew from Stilnox under medical supervision.
43Mr Newton diagnosed you as I have said, suffering from a perennially fragile
self-esteem, which he said had existed since the end of your relationship in the early 2000s. He said that since 2005, you have essentially questioned your personal attractiveness and become sceptical of the ability of any intimate relationship to withstand stress. So, therefore when stress arose you would withdraw into yourself as a protective means and seek validation from external sources, such as casual sex.44In relation to the offending, Mr Newton, stated that,
'While the short-term interactions provided a brief boost to Mr Johnson's self-esteem, their superficiality did little to address his needs for intimacy and connection.'
45He said you engaged in repeated offending in a ‘near compulsive’ search for gratification. It is only since your arrest that you have engaged in treatment to break this cycle, a matter noted by Mr Newton. Mr Newton said it was clear that you were prone to depressive reactions to a wide variety of life stressors over many years. He diagnosed you with a Major Depressive Disorder of mild to moderate intensity, compared to other depressed patients. He also diagnosed you as presenting with prominent traits of a Narcistic Personality Disorder which he said heightened your depressive reaction.
46It was his view that the conditions from which you suffer would lead you to experience frequent and more intense experiences of anxiety and depression in custody, than a prisoner not affected by these conditions. He noted that those conditions would of course be exacerbated by the fact that you were a police officer meaning that you would probably have to be held in what is called ‘a Protection within a Protection system’ involving 23-hour lockdown and limited access to programs. It was also the view of Dr Newton that your mental health would be likely to deteriorate as a result of being placed in custody.
47I also received a number of reports from your treating psychologist,
Dr Clint Gurtman. He saw you between 17 February and 30 August 2010, in relation to your dependence on sleeping medication. Dr Gurtman also saw you between 25 June 2012 and 29 January 2013, again in relation to your sleeping problems, at which time as I have said, you entered the Albert Road Clinic to withdraw from Stilnox medication.48In relation to your current circumstances, you again began attending on Dr Gurtman on 21 October 2021 about two months after you were charged in relation to this offending. You have attended 17 sessions upon him, one of them with your wife. Again, it was his diagnosis that the breakup of your engagement in the early 2000s predisposed you to relationship insecurity which you coped with by engaging essentially in extra-marital affairs. He said, that your insecurity was also triggered by the multiple miscarriages suffered by your wife and these extra-marital affairs became a coping mechanism for your depression and poor self-esteem.
49It was Dr Gurtman's view that the charges laid against you had a profound impact on your mental and physical health and that you began engaging in suicidal ideation, at one stage engaged in binge drinking which you have now abandoned, but said you had been in a state of constant worry and rumination ever since you were charged. It was the view of both Dr Newton and Dr Gurtman that you are unlikely to reoffend in the future. It was Dr Gurtman's view that the impact of the charges upon you were a strong indication of a reduced likelihood of reoffending in a similar way in the future. You have other protective factors noted by both psychologists essentially relating to the close support you enjoy from your parents, your brother, your wife who continues to stand by you and immediate friends.
50I was informed by your counsel that you have become very involved in the care of your children, in particular of your son who has been diagnosed fairly recently with Attention Deficit Hyperactivity Disorder (ADHD), that you pick up your children from school, drop them off in the morning, spend a great deal with them.
51Your counsel submitted and I accept there has been a fairly high degree of what is called extra-curial punishment attending your case. By extra-curial punishment, I mean adverse effects which could be described as punishment arising from the fact of you being charged, which occurred prior to you coming to court and being dealt with by the court for your offending. You were charged in August 2019 and on 27 August 2019, there was a filing hearing following which there was widespread media reporting of the charges you faced. I should note that initially you faced literally hundreds of charges which also included charges of rape and other serious sexual offending. Those charges have since been withdrawn.
52Defence counsel submitted examples of some of the media coverage which I accept was of a spectacular nature and which I accept caused you great humiliation and distress. Obviously through your own actions you lost your career in the police force. Another effect of being charged and the reporting were that you were asked to resign from the CFA which you had joined in 2017, you fighting in the Cann River fires. You were also forced to withdraw as a coach for your son's football team. You were also at the time working for a labour hire company, in the wake of your resignation from the Victorian Police force, and within four weeks of the media reporting any work available to you dried up. It was then that you began working with your brother undertaking the adult apprenticeship in plumbing which I have referred to.
53I should note that there has also been a considerable amount of delay in your case which is a strong mitigatory factor. The way in which the charges against you unfolded related back to your time at Pyramid Hill. On that occasion, whilst you were working at Pyramid Hill you dealt with an outstanding warrant in relation to a woman you had arrested 20 or 30 times. Ultimately, she complained about you to the Ethical Standards Department of the police force. She was picked up again by police after you left Pyramid Hill. I should add that I was informed that this woman had threatened to report you on many occasions.
54You were first interviewed by police on 29 July 2019. That related almost solely to complaints made by that woman. You then engaged in a second record of interview on 27 August 2019, and that related to the majority of other charges and other complainants involved in your offending. You heard nothing from the police force until 4 August 2021 when you were served with the criminal charges in the original form I have described.
55I accept that in the four years since you were first asked to attend upon police, (that is since the first record of interview) these matters have hung over your head and have caused you great psychological distress and to an extent that this has had a grave impact upon your mental health. The delay in investigation and then charging you has had a serious deleterious effect upon you which I regard as a significant mitigatory factor in your case. I also accept that in that time you have engaged in psychological counselling and commenced the apprenticeship with your brother, in other words, that you have undergone an amount of rehabilitation that I take into account.
56I accept that the delay was not attributable to you. The first plea offer made by you was made on 7 March 2022 and was largely in the form of the indictment that was ultimately brought against you. This was not resolved until
6 September 2023. In other words, I accept and I note the prosecution also accepts that in the circumstances of this case you entered a relatively early plea. I also accept that pursuant to the Court of Appeal authority Worboyes,[10] you are entitled to a significant discount for entering a plea of guilty at a time when the courts are still dealing with the backlog caused by pandemic restrictions affecting its operation.'[10]Worboyes v The Queen [2021] VSCA 169
57I also take into account the support that you enjoy in the community which I regard as a strong protective factor. I received a number of impressive references from family and friends and it is clear you continue to enjoy the support of a pro-social family and circle of friends. I also accept that you have good prospects of rehabilitation and that in my view it is unlikely that you will offend in the future.
58It was the submission of your defence counsel that I should deal with you solely by way of a Community Corrections Order. I have had you assessed for a Community Corrections Order and you have been found suitable for placement on such an order. The prosecution has also conceded the mitigatory factors, that I have outlined, but submitted that I should deal with you by way of a combination disposition. That is a disposition that involves both a term of imprisonment with you followed by release on a Community Corrections Order. It was the submission of the prosecution that your offending involved a gross breach of trust which was placed in you by both your employer, Victoria Police and the community.
59It was pointed out by the prosecutor that police have considerable power and that public confidence in the police force rests on police carrying out the sworn duties of its members, which you betrayed. The prosecution pointed out that in seven of the 10 charges, you were only able to have contact with the complainants because of the power you exercised as a police officer, both in terms of direct contact with those women and because of your access to the LEAP system.
60It was submitted and I accept that Charges 3, 6 and 9 were the most egregious charges involving three vulnerable women and two of whom were seeking police assistance in relation to family violence. It was conceded by the prosecution that your accessing of the LEAP data system was not at the upper end of this offending but still involved you accessing personal details of vulnerable women you had met through your work when they sought police assistance.
61It was submitted that in Charges 1, 2 and 5, you did nothing with the information you accessed, but it still related to women you were seeking a relationship with and that you had no right to invade their privacy in that way. The prosecution submitted that your moral culpability in relation to this offending was very high. There was an imbalance of power which you held as a police officer in relation to their vulnerability and it was submitted that you abused that power for your own gratification.
62Whilst Ms Churchill for the prosecution accepted that you had made an early plea and were remorseful for your offending - and I do accept that you are remorseful for your offending, which I have gleaned from your plea from the psychological material and the references that were submitted on your behalf. However, whilst this may mean that the principles of specific deterrence and community protection loom less large in the sentencing exercise before me, it is still the situation as the prosecutor submitted, that the principles of general deterrence, just punishment and denunciation are prominent in this sentencing landscape.
63It was also accepted that limbs 5 and 6 of Verdins[11] were applicable in your case. I should also note that it was a submission of the defence that your offending did not fall at the higher end of moral culpability. It was submitted that there are worse examples of police abuse of their power, such as police who have used their position to engage in drug trafficking, to abuse children and the like. Ultimately, I agree with the prosecution submissions that your offending (notwithstanding that it might not be the worst example of abuse of power that the court has seen) is still serious offending. It is very clear that throughout an extended period of time, you continued to prey upon vulnerable women you met in the course of your employment for your own gratification.
[11]The Queen v Verdins (2007) 16 VR 269
64The fact that the distressing demise of your engagement led to an ongoing fracturing of your self-esteem such that you were then unable to cope with the stressors you and your wife faced in your relationship, considerable though they were, in no way justified the continuous exercise of abuse of power that you executed over many years.
65I accept the strong mitigatory factors that I have previously outlined. Those mitigatory factors simply serve to save you from a sentence comprising a maximum and a minimum term. As I have said, you preyed upon the very people you had sworn to serve and protect. Your actions caused immense and ongoing distress to vulnerable, frightened women who were forced to seek assistance and protection from the police force. They faced domestic violence in many cases in their own lives, such that they took that final step of contacting police and seeking police intervention and you utterly betrayed that trust.
66In relation to the charges involves Ms Reilly, I do note, your counsel's instructions that sexual contact between you was limited to essentially 2012 and 2014 although there was one occasion in 2017, and accept that you were not necessarily aware of the extent of her mental health issues and her suicide attempts, particularly in the wake of you announcing your engagement. Nevertheless, the fact of the matter is that this behaviour of yours continued for years. You may have the support of a family and friends who have come forward in your time of need, these women did not. They had to turn to the Victoria Police force for that assistance.
67In the circumstances, I am satisfied that you should serve a term of imprisonment combined with a Community Corrections Order. In my view only the imposition of a term of imprisonment properly expresses the gravity of your offending. I note that I was referred to the decision of another judge of this court in a similar case, involving offending police officers, that is the case of Forae which was presided over by His Honour Judge Holding. That involved four charges only, one of them was an attempt to pervert the course of justice. But in my view, his offending was far less extensive than yours. The problem with the offending Mr Johnson, is that no matter that there may be an explanation for it in terms of your psychological make up it went on for many years. It involved many women and it caused widespread damage.
68It must be made very clear to the community, particularly the community of police officers that the power they hold is a privilege, one which should be honoured, and that they have a sworn duty to protect those and serve those who come to them in the circumstances that these women did, circumstances which involved fears around their personal safety. I should note that a combination sentence, if I can put it that way, involves a maximum term of
12 months, in combination with a Community Corrections Order. You will not be receiving 12 months; I accept that service by you of a term of imprisonment as a former Victoria Police officer is going to be far more difficult for you and I have taken that into account in determining the appropriate sentence which is much less than it would be otherwise.69I also accept that the mitigatory factors I have outlined should serve to reduce that sentence. I therefore sentence you as follows.
70What I am simply going to do is because it involves a number of Community Corrections Orders, I am not going to go into the conditions of those, until I have gone through all of the sentences.
71Charge 1, you will be placed on a Community Corrections Order for two years.
72Charge 2, you will be placed on a Community Corrections Order for two years.
73Charge 3, you will be sentenced to six months' imprisonment and then placed on a Community Corrections Order for two years.
74Charge 4, you will be placed on a Community Corrections Order for two years.
75Charge 5, you will be sentenced to a Community Corrections Order for
12 months.76Charge 6, you will be sentenced to six months' imprisonment then released on a Community Corrections Order for two years.
77Charge 7, you will be placed on a Community Corrections Order for two years.
78Charge 8, you will be placed on a Community Corrections Order for two years.
79Charge 9, you will be sentenced to six months imprisonment, then released on a Community Corrections Order for two years.
80Charge 10, you will be placed on a Community Corrections Order for two years.
81All of those orders will be served concurrently. The conditions of each Community Corrections Order vary.
82I cannot place you on a Community Corrections Order without your consent, the conditions are. You must report to the Community Corrections Office within two working days of the making of the orders. The orders will not commence until six months from today. Each of the Community Corrections Orders will commence on 15 November 2023.
83Whilst you are on the orders you must not commit any offence punishable by imprisonment. You must report any change of address or occupation within
48 hours of the making of that change. You must report to and receive visits from Community Corrections. You may not leave Victoria without the permission of the Community Corrections Office. You must not attend upon the Community Corrections Office without being under the influence of drugs and alcohol and you must obey all lawful directions of the Community Corrections Office.84There will be special conditions attached to each of the Community Corrections Orders.
85On Charge 1, you will undertake 150 hours of unpaid community work. You will undergo assessment and treatment for mental health difficulties. You will undergo programs designed to reduce reoffending.
86In relation to Charge 2, those same conditions will apply.
87In relation to Charge 3, those conditions will apply with the difference that you will serve 300 hours of unpaid community work.
88On Charge 4, those conditions apply but you will undertake
200 hours of unpaid community work.89On Charge 5, the order will last for 12 months as I have said, those conditions apply but you will undertake 70 hours of unpaid community work.
90On Charge 6, the conditions apply but you will undertake 300 hours of community work.
91On Charge 7, conditions apply, you will undertake 150 hours of unpaid community work.
92Charge 8, will be the same, in the same form as Charge 7, 150 hours of unpaid community work.
93Charge 9, same conditions, but will undertake 300 hours of unpaid community work.
94Charge 10, you will undertake 150 hours of unpaid community work.
95The effect of the order will be that when you are released from prison, you will undertake a two-year Community Corrections Order involving 300 hours of unpaid community work, treatment for mental health difficulties and undergoing programs designed to reduce reoffending. This is because all the Community Corrections Orders are concurrent. All right, are you prepared to sign these orders Mr Johnson?
96OFFENDER: Yes, Your Honour.
97HER HONOUR: Yes, thank you. I think we just print them out now, you can have a seat Sir, thank you.
98Thank you very much. Pursuant to s6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of two and a half years and ordered that you serve a minimum term of 12 months' imprisonment. Thank you. Anything else I need to attend to?
99MS ROODENBURG: No, Your Honour.
100HER HONOUR: All right. Thank you, we'll get you to sign those, thank you,
Mr Johnson. Thank you. Yes, we'll stand down until 11 o'clock, thank you, I thank counsel for their assistance.
- - -
3
0