Director of Public Prosecutions v Johnson (a pseudonym)

[2020] VCC 397

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAWN JOHNSON (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2020
DATE OF SENTENCE:	3 April 2020
CASE MAY BE CITED AS:	DPP v Johnson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 397

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  CRIMINAL LAW – Plea of guilty – Rape – Breach of trust 

Legislation Cited:  Sentencing Act 1991 (Vic).

Cases Cited:R v Ibbs (1987) CLR 447-452 - Baski v The Queen [2018] VSCA 83 - DPP v Werry [2012] VSCA 208 - Underwood [2018] VSCA 87 - Turner [2018] VSCA 34 - Macarthur [2019] VSCA 71 - Hassan [2010] VSCA 352 - DPP v Dalgliesh (a pseudonym) [2017] VSCA 360.

Sentence:Six and a half years imprisonment with a non-parole period of 4 years, 17 days declared as time served.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Coombes (For Plea)	Office of Public Prosecutions
Ms R. Barrett
(For Sentence)
For the Accused	Ms E. Anselma	Furstenberg Law Pty Ltd

HIS HONOUR: 

1This plea took place on this Court on 17 March.  On that day Ms Coombes appeared for the Director, Ms Barrett appears today.  Ms Anselma appeared on behalf of Mr Johnson[1].

[1]a pseudonym

2Mr Johnson pleaded guilty to one charge of rape in Indictment No. J11178658.  The seriousness of that charge is amply demonstrated from the fact that Parliament has prescribed a maximum penalty of 25 years' imprisonment for such crime.

3The victim was Tracy Cooper[2].  She was then 17, is now 19.  Ms Cooper, can I indicate to you the use of your name is simply because you are here.  When the record is made of this sentence, your name will be anonymised and indeed, as a matter of law, it is illegal for the press to publish your name, all right?  But I use it because it is appropriate, it seems to me, as you are in the Court.

[2]a pseudonym

4As I said, Tracy was the victim.  The circumstances arose at a New Year's party on 31 December 2016.  That party was at Mr Johnson's home, it was being conducted by his daughter.  At the time he was aged 50; he is now 52, about to turn 53, on the 8th of this month.  He is a fitter and rigger by occupation.

5The circumstances in regard to this crime are stark.  Firstly, Ms Cooper was at the home, as I said, to attend the New Year's Eve party held by her friend, Mr Johnson's daughter.  Mr Johnson was there apparently as a supervising adult, but, as he describes it, he was cooking the barbecue.  Ms Cooper unfortunately had far too much to drink.  She was ill and was put to bed by the prisoner at approximately 12.00 am.  At approximately 2.30 am the prisoner, with the assistance of his daughter, moved Ms Cooper to another bed.  She was apparently during that process unconscious, as was observed by Mr Johnson's daughter and indeed was dropped at one stage.

6Subsequently that night Mr Johnson entered the bedroom and penetrated Ms Cooper both digitally and with his penis.  Apparently the victim was at this stage in and out of consciousness, but observed the above acts occurring.  She was at the time concerned as to confronting her friend's father in such circumstances.  A tampon which she had placed within herself had been removed.  Ms Cooper shortly thereafter complained of being raped.  She then attended the Royal Children's Hospital where swabs were taken, which confirmed that Mr Johnson was the offender, as his semen was detected.

7In the record of interview dated 10 August Mr Johnson denied having sex. The matter was listed on 8 October 2018 as a contested hearing but proceeded as a straight hand-up brief. That meant that no witnesses were called and in particular Ms Cooper was not subject to any cross-examination; however, Mr Johnson did not in fact plead guilty until 14 July 2019.

8This crime is aggravated by the following factors:  firstly, the breach of trust by way of the circumstances where the victim in this matter, Ms Cooper was placed.  She was in the home of the parent of her friend, who was ostensibly the supervising adult. 

9Secondly, she was aged 17 at the time; Mr Johnson was aged 50 and in circumstances, as I say, where he was the parent of Ms Cooper's friend.

10Thirdly, the state of the victim at the time of this offence was that she was not only comatose, but vulnerable. 

11Fourthly, Mr Johnson took no precautions, as the swab has demonstrated.

12In regard to this crime I assess Mr Johnson’s objective culpability as mid to high on the scale of heinousness, see R v Ibbs (1987) CLR 447-452.

13The prosecution put that the only appropriate penalty was imprisonment, a proposition which Ms Anselma in her plea did not cavil with. 

14Insofar as the imposition of an appropriate penalty, I was handed two cases by the prosecutor to consider.  The first was Baski v The Queen [2018] VSCA 83 and, secondly, DPP v Werry [2012] VSCA 208. Both were given to me because an excess amount of alcohol had been consumed by the victim, but in each there were substantially different circumstances. Both involved a trial, and both involved circumstances where the victim was essentially picked up in the street as a stranger. I suppose the only other similarity is that they were both opportunistic.

15As I said at the start of these remarks, I have indicated to counsel that one of the matters that I considered was the sentencing snapshot No. 207 which came out in May 2017, and was taken to the end of 2016.  It seems to me most appropriate given the timing of this offence.  I indicated to counsel that I had considered such and no further submissions were made by counsel.

16It is noted that the median sentence, for rape is five years.  In Werry, [54], heard in 2012, it is noted that the undifferentiated figure of five years for rape does not appear to have changed since 2009. In this regard I should make the comment, as set out in the prosecution opening, that this offending pre-dates the introduction of what is known as a category 1 offence under the Sentencing Act, and the standard sentencing regime. 

17I have also looked at Underwood [2018] VSCA 87, in particular [39], albeit that in that case a large Renzella reduction was appropriate.  I have looked at Turner [2018] VSCA 34 and, further, Macarthur [2019] VSCA 71.

18In referring to both statistics and cases I note the comments in Hassan [2010] VSCA 352 by the Court of Appeal that:

'An examination of comparable cases will then assist the judge to make an objective assessment of the range of sentences applicable in cases where the gravity of the offence is of a similar nature to the particular offence for which the offender is to be sentenced; but the limitations of this exercise must be borne in mind'. [44]

19Equally, at paragraph 45 the Court raised the issue as to the limitations provided by snapshots. At paragraph 54 the Court mentioned the most important repository of sentencing principles', being those set out in the Sentencing Act 1991 (Vic), and in particular s.5(2) of that Act describing such as the 'first among those is the maximum penalty'.

20Sentencing was considered by the High Court in Dalgliesh and in the subsequent decision of the Court of Appeal in Victoria, DPP v Dalgliesh (a pseudonym) [2017] VSCA 360, the Court emphasised the reference to a number of matters and statements of the High Court, but in particular at paragraph 39 summarised one aspect as follows:

'The administration of the criminal law involves individualised justice.  The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case'.

21As was revealed by the High Court in Dalgliesh, current sentencing practice does not in any event require the Court to impose a sentence other than one that is just according to the law.  This Court is free to depart from established current sentencing practice, if the justice of the case demands it.

22Coming then to the victim impact statement, of Ms Cooper, Exhibit B, which was read by the prosecutor to the Court.  Ms Cooper was present in Court when that was read and indeed is present today.  I have since reread that victim impact statement.  Such statement is controlled, detailed and not exaggerated.  It talks of the fears and consequences caused by this crime and the impact upon her insofar as maintaining relationships, her relationship with her family and the difficulties that this has caused.

23If I may, I will read from her final paragraph, which I consider is an apt summation of the consequences for all in this case brought about by Mr Johnson's criminal actions.  She says:

'No amount of words can ever really explain how much damage this has caused me or my parents and only time will tell how I come through this.  I know his life has changed too.  People will know that he is a rapist.  His family will know that he's a rapist.  He will serve whatever sentence is handed out for being a rapist and he may well lose everything he has, but one thing will always remain the same:  unlike me, this was his choice; I didn't get one'.

24I then come to the plea made by Ms Anselma, who put this crime as being a momentary lapse of Mr Johnson, caused in particular on that night by his consumption of alcohol, which was apparently by way of beer and some form of shots.  She further put that such consumption impaired his judgment and that, as a result thereof, Mr Johnson is to pay a huge price. That price brings with it ramifications not only for himself, but his family and indeed the victim.

25Ms Anselma accepted the matters of aggravation of the offending that I have detailed and that this offending, given such aggravation bespeaks therefore of the need for a sentence, which effects denunciation, just punishment but general deterrence.  As I said, the view of Parliament about the seriousness of this crime is reflected in the maximum sentence.  Counsel also described the statements made in the victim impact statement as confronting for all.

26In mitigation Ms Anselma put to the Court her client was 52, about to turn 53.  He comes to the Court with no priors whatsoever.  He has an excellent work history as a rigger and fitter.  Those matters are set out in particular at Exhibit 5, which is his employment resume.  His personal background is detailed by Ms Anselma at paragraph 6.2 on p.2 of her written submission, and insofar as the effects of this crime and his employment has been concerned, given the rigours of his employment, the stress that he encountered thereafter was such that his concentration was affected and was it unsafe to continue.

27Albeit that, as set out in the materials and spoken to by Ms Anselma, Mr Johnson is now separated, he in fact is well supported by his daughters and in particular his former wife Patricia[3], whose statement was exhibited at Exhibit 4, numbered T.  There were 19 character references.  Each of those character references clearly had knowledge of the particular crime.  They gave him support, despite that.  They spoke of his genuine remorse, of his realisation of the magnitude of his crime, in particular the two statements of his daughter, the statements of friends of some lengthy period, such as Mr Hicks[4], and of his work colleague Mr Laurence Goodman[5]. 

[3]a pseudonym

[4]a pseudonym

[5]a pseudonym

28What came out clearly from the totality of those statements was the shock of people that Mr Johnson would have been involved in such a serious crime, and the proposition, that the Court accepts, that it was out of character.  Ms Anselma further put to the Court that her client has reached middle age without any priors whatsoever and submitted therefore that he was a good candidate for rehabilitation.  In the circumstances I accept that.

29Insofar as his mental health is concerned, consistent with the submission that he has effected remorse and has been concerned as to the consequences of his crime, tendered was a report of the psychological Matthews, Exhibit 2, which diagnosed a reactive major depression to the circumstances of this case.  He has, as part of his treatment since November 19, been involved in psychological sessions with Ms Brinkworth and Exhibit 3 was tendered in regard to that.

30As I have said, he had to give up work.  It was noted in Ms Matthews' report that she took the view that the remorse expressed was genuine. She was also supportive of the submission of Ms Anselma of the appropriate allowance being made in this case for a person who will be able to effect rehabilitation. 

31Ms Anselma stressed the plea of guilty, that such plea effects remorse, assists justice and is utilitarian.  Albeit it that it did not occur till the date I indicated, at no stage was the victim required to be cross-examined and was still at a relative early stage by way of the circumstances of the trial.  Ms Anselma also spoke of the community protection effected by the impact of the reporting legislation, and also it is necessary for me to take into account the circumstances in prison at the moment concerning COVID-19 where Mr Johnson will be consigned for some time. 

32Why Mr Johnson is appearing remotely is so that he does not have to go through isolation; however, I accept that any person in gaol would have concern and stress as to the circumstances of being in gaol at the moment.  Mr Johnson will be subject to limited contact from his family and those matters are obviously appropriate to be taken into account in regard to mitigation, and I do.

33I have given close consideration to all the above factors in the determination of the appropriate sentence. 

34Mr Johnson, normally I would ask you to stand; in this case, as I said to you, I will not.

35You will be convicted for the crime of rape and the sentence I pronounce upon you is imprisonment of six and a half years.  In the circumstances I have accepted the submission of Ms Anselma in particular, given the matters set out in paragraph 8 of her submission, that the minimum period that you should serve prior to being eligible for parole is four years.

36I declare pursuant to s.18 that the 17 days you have served in remand be declared as service of this sentence.  I also state pursuant to s.6AAA that had you not pleaded guilty the imprisonment imposed would have been a period of eight years with a minimum of six.  Is it necessary for me to tell you that so you that are aware of the impact the plea of guilty has had, which was a valuable plea because of its utilitarian nature in this case.  That is had you not pleaded guilty, instead of getting six and a half years with a minimum of four to serve, you would have been sentenced to a period of eight years with a minimum of six to serve.

37Ms Anselma or Madam Prosecutor, any other matters that I need to attend to?

38COUNSEL:  No, Your Honour.

39HIS HONOUR:  Yes.  Well, the prisoner is certainly taken down.  Thank you, Mr Johnson.

40I repeat again insofar, Ms Cooper, as to any references to yourself they will not be included in the sentencing remarks.  Yes, I will stand down.

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