Director of Public Prosecutions v Johnson
[2023] VCC 127
•8 February 2023
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-01765
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZACHARY JOHNSON |
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JUDGE: | HIS HONOUR JUDGE M.P BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 8 February 2023 | |
CASE MAY BE CITED AS: | DPP v Johnson | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 127 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | |
| For the Accused | Mr M. Radzaj |
HIS HONOUR:
1 Zachary Johnson, you are to be sentenced for one charge of burglary, two charges of theft and one charge of theft of a firearm under s74AA(1) of the Crimes Act. The applicable maximum sentence for each offence is 10 years' imprisonment.
2 You have pleaded guilty to these offences at the Koori Court sitting at the County Court in Mildura. You were arraigned on both 14 December 2022 and before me on 17 January. When interviewed by police on 12 July 2022, you exercised your right to silence. In September of 2022, you were committed to trial. Committal went by hand up brief, therefore without the need to call witnesses. The matter resolved in November 2022 and, as stated, you were arraigned and pleaded guilty.
3 You receive the benefit of your plea of guilty and that level of cooperation in the proceeding. Your plea, which can be seen as early, has facilitated the interests of justice, accepted responsibility and expressed remorse. That assistance and the utilitarian benefit of the plea is the greater, given the impact of ongoing COVID-19 upon the criminal justice and correction system. I find that you are genuinely remorseful.
4 At your plea hearing on 17 January, Mr O'Doherty for the Crown tendered a written Crown opening and the victim impact statements of Mandy and Romany Bowen. Mr Radzaj for you provided a written outline of the plea submissions.
5 On 17 January, I adjourned the matter part-heard to today 8 February. I have now received the Community Correction assessment report of Glen Bellini dated 23 January. Mr Bellini also attended the Koori Court on 17 January.
6 The circumstances of your offending are set out in the tendered Crown opening, which is Exhibit A. My own summary may therefore be shorter. It is also informed by matter put on your behalf, not challenged by the Crown.
7 In the morning of 11 July 2022. Your victim, Mandy Bowen, left her home in Jubilee Drive, Mildura and her motor vehicle there, locked and secured. Upon return that evening, she came upon the evidence and consequences of your burglary. Your co-offender was a young person who is - who I am advised is yet to be dealt with in the Children's Court. At the time of the offending you were 27 years old.
8 CCTV security footages indicates that you broke into the home soon after 12.30 in the early afternoon. You stole firearms and ammunition, which had been stored in a padlocked cupboard, the lock was broken. The firearms are identified as follows at paragraph 10 of the opening. I quote. “One Zombie Air Rifle, 1.3 2 calibre rifle, one Lanver over and under shotgun”.
9 You stole jewellery and other personal items. Ms Bowen discovered the following to be missing, stated at paragraph 11. “One solid gold snake necklace. One gold necklace with a pendant that allows for a photograph. One sterling silver necklace. One gold choker necklace with diamantes. One silver chain bracelet. One black shoulder bag. One fawn sheeted towel. One black hat and two children Razor scooters. He also stole the motor vehicle”.
10 This was found on 12 July, destroyed by fire. A search warrant executed in your name on that day located some but not all of the jewellery taken.
11 The jewellery stolen had strong personal meaning for Mandy Bowen and her family.
12
The tendered victim impact statements, Mandy and her daughter
Romany Bowen powerfully described the emotional and other effects upon them of your offences. Mandy Bowen suffers loss of her sense of safety and wellbeing. An anxiety condition has worsened requiring further medication. This affects a heart condition. Sleep is affected. She is hypervigilant, feels the need and has taken steps to protect herself in her home. She feels anger about what has happened to her. She points at the sentimental value of particularly one piece of jewellery handed down to her by her mother. The vehicle stolen and destroyed was a family car; for example, used to take grandchildren away. She has not been able to replace that. There is a loss of trust and privacy.
13 Her daughter Romany Bowen feels great anger at what you have done to her mother and family. She remembers her mothers' frantic phone call on the night. Both of her parents have become highly security conscious. Romany Bowen explains the emotional value, not only of her mother's jewellery, but also firearms which had been handed down by a family member. She expresses scepticism about the genuineness of your remorse and that the stolen property had not been returned.
14 I am not complete. There has been very considerable victim impact which must be taken into account in my sentence of you.
15 You are a 28 year old Aboriginal man of the Ngiyampaa people. Have I pronounced that correctly?
16 OFFENDER: Nyamba.
17 HIS HONOUR: After arrest on 12 July 2022, you were remanded for about six months in remand. You were released upon my bail and its conditions on 17 January. You are in a long term and what seems a stable relationship with your partner, Shara Mitchell. You have two daughters, aged nine and three years. Your son died of Sudden Infant Death Syndrome in March 2021. This has had of course a major impact upon you and your partner.
18 The second oldest of six children, you have had a deprived upbringing. You did not know your father until adulthood. You think he lives in Wagga Wagga. Your mother was killed when you were 18. You were raised by your aunt and uncle, her partner. Your maternal grandmother also played a part in your childhood. It was a childhood affected by loss, alcoholism and domestic violence. A number of your family members were present in court at the plea hearing. Mr Mitchell states in his submissions document that you developed only a limited traditional connection to your family and culture because your grandmother was reluctant to open up past family trauma.
19
Your grandmother recently suffered a stroke when you were still in custody. Your Uncle, your Auntie's partner, who seems to have been a supportive father figure in your early life, passed away very recently. His funeral was on 18 January. You were able to attend that, having been bailed on
17 January.
20 In the context of that upbringing, you left school after Year 9. You were introduced to alcohol and cannabis early, cannabis at 14. You have continued to use drugs, including methylamphetamine, and you were doing so at the time of your offending. You do not say that you were affected by drug use at the time of the burglary. I find that the burglary was committed and property stolen to fund drug use. You have had limited employment. In remand you received medication for anxiety and depression.
21
You have a substantial criminal record. Between April 2013, when you were 18, and December 2021, I count four adult court appearances in Victoria and nine in New South Wales. I bear in mind some duplication; for example,
non-compliance with community orders requiring re-appearance at court for the same offences. Offences of dishonesty predominate, particularly including burglaries. There are driving offences and some lesser number of violent offences. It is prior offending often similar to this.
22 As I have said, you have spent about six months in remand. My grant of bail, was not only partly based on your close Uncle's funeral. It also provided an opportunity for you to return to the community, to the obligations of your immediate and extended family, and on stringent conditions, including curfew. It was also required that you comply with the support and directions of Aboriginal support worker, Rex Handy of MDAS (Mallee and District Aboriginal Service). I am advised that you have complied with that bail.
23 This was serious offending, an invasion into a person's home without any regard to the integrity of her or that home. That it was drug-related offending offers no litigation. As indicated, there has been serious victim impact. You have relevant prior offences. Such circumstances make relevant sentencing considerations and purposes of your moral culpability, deterrence (both general and specific), the need to condemn the offending and proportionally punish it. There is a need to protect the community from offending such as this by deterring you and others from it.
24 The usual sentence, bearing in mind the circumstances of offending, your criminal history and such adverse sentencing considerations would be a sentence of imprisonment of some significant length.
25 The Crown puts that there should be a head sentence and minimum term.
26 However, there are also important mitigating or moderating factors, mainly personal to you, which should affect both the length of imprisonment, and in my view, the way it is served. They include the following matters.
27 (1) Your plea of guilty and cooperation.
28 (2) Your personal history and circumstances. That includes your past disadvantage and more recent tragedies.
29 Mr. Radzaj raised the principles stated in such cases as Bugmy. I agree that (moderated or adapted to the particular circumstances of your case, your early life and it's likely effect) those principles apply. Here they impact upon, to some extent, although balanced against the adverse sentencing purposes earlier stated, considerations of moral culpability and deterrence.
30 Mr Radzaj specifically directed me to the case of Marrah v The Queen [2014] VSCA 119. Part of the passage he has cited includes the following, I quote,
'They [meaning the circumstances of disadvantage] do not provide an excuse for offending behaviour. They must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all the purposes of punishment. It may so explain the offender's conduct, that the offender's moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community disapproval of the offending.'
31 3. In your case there are also strong indicators of genuine and a developing, inciteful remorse. The format of the Koori Court allowed my close examination of your response to the proceeding and particularly that to the victim impact statements read out in court. I find that, in my view, you were genuinely moved and then spoke with understanding of the harm that you have caused to your victims and failures in respect of your own family. Whilst the hardship to your children and their mother does not meet the test for mitigation in the direct sense, I have no doubt that you have come to feel their difficulties deeply and that they have to a large extent been caused by you. You would continue to feel that, given any further custody. Whilst your rehabilitation is far from guaranteed, I see prospects for it, given assistance.
32 4. The effects and impact of COVID-19 upon those in prison is also a relevant matter, in terms of the risk, anxiety and restriction it causes to be imposed.
33 On 17 January, I requested a report as to your suitability for a Community Corrections Order. That report states you to be suitable. It also features important aspects of remorse and insight consistent with what I have earlier stated.
34 Ultimately, I have decided that the correct sentence is that I impose a combined period of imprisonment and a Community Corrections Order. It will not require your return to prison.
35 That Community Corrections Order should contain rehabilitative conditions to attempt to assist your rehabilitation. It is important that also, in your conversation with the Koori elders, you recognised the value to your future and rehabilitation of a closer connection to your culture and community and to those within it, including Rex Handy, of MDAS who can help you.
36 The Community Corrections Order should also carry punitive aspects, including its duration and community work, to address the serious circumstances and consequences of your offending.
37 After considering and weighing what I see to be the relevant competing matters I sentence you as follows.
38
As to all charges I impose an aggregate sentence of imprisonment of
189 days. I declare 189 days of pre-sentence detention. I also impose on all charges a Community Corrections Order of two years' duration. The usual terms apply.
39 The additional conditions are that you perform 250 hours of unpaid community work, 50 hours of program work to be set off against that, that you be under supervision, that there be assessment and treatment for drug abuse, that there be assessment and treatment for mental health and that you're participating in programs as directed to reduce reoffending that is under s48D(3)(f).
40 Under 6AAA, had you not pleaded guilty I would have imposed a sentence of three years with a minimum term of 18 months before being eligible for parole. Now are there other orders that I need to know?
41 MR O'DOHERTY: Yes, Your Honour, there's an order that you should make in connection with his driver's licence.
42 HIS HONOUR: Yes, now what's the minimum term for that?
43 MR O'DOHERTY: The term is at your discretion, but if you don't fix a term, there's the default position is three months.
44 HIS HONOUR: The car was stolen and destroyed.
45 MR O'DOHERTY: Yes.
46
HIS HONOUR: What do you put about the term, I'm thinking of making it
12 months?
47 MR O'DOHERTY: Well - - -
48 HIS HONOUR: I'm asking Mr Radzaj.
49 MR O'DOHERTY: Sorry, I beg your pardon.
50 HIS HONOUR: That's what I'm thinking about what - - -
51 MR RADZAJ: Your Honour if I could just have perhaps a moment just to - - -
52 HIS HONOUR: What I'd presume that he's - and I don't mean to be disrespectful to him, but I'd presume that he's not - that he's not held a licence.
53 MR RADZAJ: That's correct. If I could just take some (indistinct).
54 HIS HONOUR: All right. Have you got a bit of heartburn.
55 OFFENDER: Yeah, ah feeling a little bit sick this morning.
56 HIS HONOUR: Sorry again?
57 OFFENDER: I've been a little bit sick this morning.
58 HIS HONOUR: Yes, all right.
59 MR RADZAJ: Thank you for that opportunity Your Honour, no observations (indistinct words) - - -
60 HIS HONOUR: Well his disqualification period will be 12 months running from today.
61 MR O'DOHERTY: Your Honour in terms of the maximum penalties that you announced, theft of a firearm I understand, my recollection is it's 15 years, not 10.
62
HIS HONOUR: So, I was going off the - I should correct that, I relied on
the - - -
63 MR O'DOHERTY: It was in the opening.
64 HIS HONOUR: The opening. Just let me check that. I see, it under maximum penalties, it only referred to burglary and theft, and I presumed it was theft including the firearms theft.
65 MR O'DOHERTY: That's a discreet charge, Your Honour.
66 HIS HONOUR: Yes, it is, yes. The higher maximum penalty wouldn't affect my sentence but that needs to be noted. All right. You can come out of the dock now. We're going to prepare the document for you. Will that take some time?
67 ASSOCIATE: No, it won't. It'll take me the printing of it.
68 HIS HONOUR: All right, now stand up, I've got to read this out to you. Now, this is the order. It runs for two years. The usual terms are, that you don't do another offence of which you could be in prison during the time.
69 OFFENDER: Yeah.
70 HIS HONOUR: That you comply with this regulation, that you don't attend any program, appointment affected by alcohol or drugs or in possession of illegal drugs.
71 OFFENDER: Yes.
72 HIS HONOUR: You must report and receive visits from Community Corrections. You must report to arrive at the Community Corrections Centre in Maddon Avenue here, within two days. Today would be a good idea.
73 OFFENDER: Yeah.
74 HIS HONOUR: You must let Community Corrections know within two days of a change of address or job. You must not leave Victoria without first getting permission to do so from them in Mildura discussion leads to something sensible about that bearing in mind, how close to New South Wales you are and you have family and other connections in New South Wales, don't you?
75 OFFENDER: Yes, Your Honour.
76 HIS HONOUR: Discuss that with Mr Belini and Mr Hand. All right?
77 OFFENDER: Yes, Sir.
78 HIS HONOUR: You must obey all of their lawful instructions. In addition you must perform 250 hours of unpaid work over the two years. Fifty hours of program work, the other things that you've got to do, can be set off against that. You must be under supervision. You must undergo assessment and treatment for drug abuse and undergo mental health assessment . You must participate in programs that address factors related to this offending. Now, do you understand that?
79 OFFENDER: Yes, Your Honour.
80 HIS HONOUR: Do you agree to it?
81 OFFENDER: Yes, Your Honour.
82 HIS HONOUR: All right. And I'll get you to sign it, then I'll sign it and then you can go. Right now I'll sign it. And then a copy can be given to you and the parties. All right, that's being done now. There's just one final comment. I've seen a lot of, over many years, I've seen a lot of young men when they go to court or when they get parole, really mean it when they say they're going to get it right. But as time goes on, they fall over. So, you were able to do it for three weeks, but you're now looking at the long haul, aren't you?
83 OFFENDER: Yes, Your Honour.
84 HIS HONOUR: All right. Now my advice to you is the best way of getting through it is to let people who care about your welfare know what's going on, particularly if things start looking bad. Nip it in the bud early. Nip it in the bud early. If you're starting to fall over let people know and do something about it. Don't just let it fester.
85 OFFENDER: Yes, Your Honour.
86 HIS HONOUR: All right. Well I'll adjourn now and resume in a short time.
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