Director of Public Prosecutions v Johnson-Portelli

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-02374

DIRECTOR OF PUBLIC PROSECUTIONS

JOSEPH JOHNSON-PORTELLI

---

JUDGE:	O'Connell
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2021
DATE OF SENTENCE:	22 February 2021
CASE MAY BE CITED AS:	DPP v Johnson-Portelli
MEDIUM NEUTRAL CITATION:	[2021] VCC 140

REASONS FOR SENTENCE

---

Subject:CRIMINAL LAW
Catchwords:              Reckless conduct endangering serious injury; Prohibited person possess firearm; Unique circumstances of offending; Firearm discharged whilst offender in immediate danger; Circumstances warrant amelioration of moral culpability; General and specific deterrence; Young offender; Reasonable prospects for rehabilitation.
Legislation Cited:      Firearms Act 1996; Sentencing Act 1991.
Cases Cited:R v Verdins (2007) 16 VR 269; Zogheib v The Queen [2015] VSCA 334; DPP v Arvanitidis [2008] VSCA 189; R v Sahari (2007) 17 VR 269; R v Bradley [2010] VSCA 70; R v Chaouk [2013] VSC 362; R v Rudd (2009) 23 VR 444; DPP v Graoroski [2018] VSCA 332; R v Mills (1998) 4 VR 235; Azzopardi v R (2011) 35 VR 43.
Sentence:                  Total effective sentence of 19 months imprisonment, no non-parole period set.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B. Sonnet	Office of Public Prosecutions
For the Accused	Mr J. Hofman	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

Joseph Johnson-Portelli, you have pleaded guilty to two charges of being a prohibited person in possession of a firearm, one charge of reckless conduct endangering serious injury and possession of a drug of dependence.
You have also pleaded guilty to two related summary offences, namely possession of cartridge ammunition without a license and possession of a prohibited weapon.
On the plea, Mr Sonnet, who appeared on behalf of the Director of Public Prosecutions, tendered and read to the court a summary of prosecution opening for plea containing an agreed statement of facts. Mr Hofman, on your behalf, accepted that the summary accurately described the circumstances of your offending and could properly form the factual basis for sentence. The summary of your offending that follows is largely based on that opening.

Background to offending

You were born on 20 April 2000 and were 18 years old at the time of offending. Your partner, Lucy Wright[1], was aged 17. As a result of a Family Violence Intervention Order that was in force against you, protecting Ms Wright, you were a prohibited person under the Firearms Act 1996.
[1] A pseudonym
At the relevant time, you lived in the rear bungalow at 103 Conrad Street, St Albans. Your grandfather and aunt also resided at that address.

Circumstances of offending

At approximately 5:20am on 11 February 2019, the complainant Kane Nugent, attended at your address with several associates including Eldin Zeherovic and Mitch Danskin-Howe, in order to recover a debt said to have been owed by you. Whilst it is not clear, it appears there were four or five men in Mr Nugent’s group.
They entered the backyard of the property where the bungalow is situated. You went outside and spoke to the group for about 10 to 20 minutes before returning inside. You told Ms Wright words to the effect that you had until a certain date ‘to do something, otherwise they’re coming back’ and that you owed them.
A short time later, you received a text message stating that the group was returning. You armed yourself with a loaded .22 pump action rifle and told Ms Wright to move into the bedroom and to ‘stay low’. Those actions are said to found Charge 1, being a prohibited person in possession of a firearm.
Approximately 20 to 25 minutes later, the group returned and entered the backyard, despite the fact that the back gate had been padlocked. One of the group was armed with a machete, and whilst it is unclear another may have had a baseball bat. The area outside the bungalow was in darkness.
As the group approached the bungalow, you opened the front door and yelled through the wire-screen door that you had a gun. In spite of that warning the group continued to advance, and you fired one shot towards the group through the wire-screen door. The shot struck Mr Nugent in the abdomen. Ms Wright heard a scream before Mr Nugent and the group fled. Still armed with the rifle, you then chased the group of men off the property. This conduct constitutes Charge 2, reckless conduct endangering serious injury.
On the plea, the prosecution accepted that in discharging the firearm in the general direction of the group in the dark, you did not intend to shoot the victim, or any other person. Importantly, you are not to be sentenced as if you were convicted of the charge of causing injury to Mr Nugent. The injury he sustained is relevant only as part of the surrounding circumstances and informs the nature and extent of endangerment encompassed by Charge 2.
You returned to the bungalow where you wiped down the rifle to remove your fingerprints and then hid it. You also showered to remove gunshot residue from your body.
Mr Nugent ran onto the street and made a right turn, collapsing on the ground in front of a property in Conrad Street, St Albans. Residents who heard a male person calling for help dialled ‘000’. Mr Zeherovic also called ‘000’, stating that a person had been shot and requested an ambulance, before driving away with the other members of the group.
An ambulance and police arrived at approximately 5:50am, and located Mr Nugent with a single gun shot wound to the abdomen. He was treated at the scene before being transported to the Royal Melbourne Hospital where he underwent surgery. Fragmented pieces of a bullet were removed from his abdomen during surgery, and he remained in hospital between 11 and 23 February 2019. He suffered extensive pelvic injuries as a result of the gunshot wound and was required to wear a colostomy bag.
On 11 February 2019, at around 5:25pm, you had a telephone call with your father, Anthony Portelli, who was in custody at the Marngoneet Correctional Centre.
Part of that conversation was recorded as follows:
…
AP: Hey, mate. How are you going?
JJP: Fuckin’ shit.
…
AP: Did you see that shit that happened on the news?
…
JJP: Yeah.
…
JJP: He came here…
AP: Hey?
JJP: … pulled a machete, left, came back, broke through the back gate.
AP: Who?
JJP: Well, he fuckin’ came with a machete so I had no choice.
AP: Who did? Him?
JJP: Yeah. The cunt across the road and four big other cunts.
AP: Yeah.
JJP: I had no choice.
AP: What happened?
JJP: Oh, nuh, he broke through the gate and cut the lock, came through, was about to break into the bungalow so…
AP: Yeah.
…
JJP: I told him I had one. He still kept coming.
…
AP: Are you saying it was you?
JJP: Shut up. We’re on a…
AP: Huh?
JJP: …fuckin’ recorded phone call. Yeah, it was.
AP: All right.
JJP: Yeah, the fuckin’ gate’s busted and shit.
…
JJP: But it’s only – it’s only a fuckin’ 22 so it’s fuckin’ shit.
AP: Yeah, oh, well.
…
JJP: Yeah. Fuckin’ – they went to come in here though, in this place. That’s why I fuckin’ went out.
Police executed a search warrant and seized recordings of prison calls made by Anthony Portelli between 11 February and 18 March 2019. Analysis of those calls revealed further admissions made by you about the shooting.
On 20 February 2019, Mr Nugent provided what was obviously a false statement to police, claiming to be the victim of a robbery by an unknown male who confronted him on Conrad Street, St Albans. In that statement, he alleged that the male demanded his property before a fight developed and they wrestled to the ground. Mr Nugent said he then got up and saw several people. He next heard two shots and immediately felt pain in his stomach and groin. He also alleged that he was missing a number of items including a gold chain, a watch, a phone and cash.
As will be seen below, Mr Nugent and his associates chose not to cooperate with investigators or the prosecution.
On 27 March 2019, you were arrested at the Discovery Parks Holiday and Caravan Park in Braybrook. A search of your unit at the Caravan Park located a number of items which were seized by police, including a taser, a damaged .22 cartridge and a glass vial containing 1-4 butanediol.
Two days later, police executed a further search warrant at your bungalow at 103 Conrad Street, St Albans. Items seized included 49 12 guage shotgun cartridges, one 30-30 calibre cartridge, one .22 calibre rifle with one .22 round inside, a sawn-off shotgun and a bag containing ball bearings.
These items constitute Charge 3, being prohibited person in possession of a firearm (comprising the two guns), and Charge 4, possession of a drug of dependence (1-4 butanediol), as well as the related summary offences of possession of cartridge ammunition without a license and possession of a prohibited weapon (taser).
I note that subsequent DNA testing revealed you as a contributor to biological material found on each firearm. Mr Zeherovic and Mr Danskin-Howe were found to be contributors to a sample taken from the machete located at the scene.

Procedural history and plea of guilty

You were arrested and charged on 27 March 2019, and you have remained in custody since that time. On 11 September 2019, your matter was listed to proceed as a contested committal hearing. Mr Nugent failed to attend on that date and the matter was adjourned. At the second listing of the committal, Mr Nugent again failed to appear, as did Mr Zeherovic. The matter then proceeded by way of a straight hand-up brief. Your matter was subsequently set down for trial in this Court commencing 1 February 2021. You made application for bail on 20 August 2020 which was refused. On 16 November 2020, your matter resolved to a plea. The Court was notified on 18 November 2020 and on 27 November 2020 you were arraigned and pleaded guilty to this Indictment. Your plea proceeded before me on 12 February 2021.
There are four specific aspects of your plea of guilty which in combination will result in a very substantial reduction in the sentence that would otherwise be imposed.
First, your plea of guilty has been entered in the face of what I regard as a very viable defence to Charge 2. The prosecution accept that is so. Indeed, I regard it as quite an exceptional factor in this case. It follows that the weight to be attached to your plea is particularly significant.
Second, there is a very significant utilitarian benefit in your plea. All the more so because Mr Nugent and his associates refused to assist the process. There can be no question that in entering your plea, you have facilitated the course of justice.
Third, I am satisfied that you entered your plea of guilty at a point when it was first reasonably open to you to do so, having regard to the withdrawal of more serious charges in November 2020.
Fourth, whilst the issue of remorse is somewhat problematic in the circumstances, I accept that you have shown some remorse for your offending. Moreover, the plea indicates an acceptance of responsibility, particularly for the prohibited person in possession of firearms charges which in themselves are very serious offences.

Personal history

Turning to your personal history. As I have indicated, you were born in April 2000 and were 18 years old at the time of the offending. You are now 20 and turn 21 next month.
You grew up in the Keilor Downs area. You had two older siblings, Joshua and Sarah. Your parents relationship was unstable and they separated during your early childhood. Following the separation, you remained with your mother who worked as a commercial cleaner and in the hospitality industry. Despite your parents’ acrimonious relationship, your time with your mother appears to have been relatively stable.
From the age of 10 however, you resided with your father and grandfather at the St Albans address where this offending took place. Your father suffered from chronic substance abuse problems and has served several terms of imprisonment. You were regularly exposed to family violence, drug use and criminality at home.
Just prior to your 13^th birthday, your older sister Sarah, who was 20 years old at the time, was shot dead in circumstances involving drug use. One of her associates was charged with her murder but ultimately acquitted following a six week trial.
Your counsel submitted the trauma and unresolved grief following your sister’s death served as a ‘major catalyst’ for the negative changes in your life, which led to a deterioration in your mental health and an escalation in your drug use.
At age 13, you left school and did not return. As you told a consultant psychologist Mr McKinnon, who assessed you for the purposes of your plea hearing, ‘I did ok at school, until my sister was killed’. You went to work with your father and brother as a concrete pumper and layer.
You started using cannabis at the age of 14 and by the time you were 16, you were smoking methylamphetamine on a regular basis. At 18, and in the lead up to this offending, you reported smoking heroin once or twice a week, and had also abused amphetamines, cocaine, LSD, GHB, ketamine and benzodiazepines. I am told your father both encouraged and facilitated your drug use. Unsurprisingly, you were unable to maintain employment as a result of your drug abuse.
Your prior convictions consist of five appearances (three of which were in the Children’s Court) starting when you were 13 and include relevant matters such as the possession of prohibited weapons, recklessly endangering serious injury, recklessly causing injury, family violence and drug offences. Those matters, it was contended, tended to reflect the instability associated with your upbringing and your drug problems.
Mr Hofman emphasised that the most severe penalty imposed for your prior offending amounted to 43 days imprisonment. That can be contrasted, he suggested, with the fact that you have now served 698 days[2] in respect of these matters.
[2] 14 days of that period is referable to subsequent summary offending which was dealt with at Broadmeadows Magistrates’ Court on 30 May 2019. The balance of time served is directly referable to this offending.
You reported to Mr Mackinnon that on the day of the offending, you had been using ‘ice, heroin a bit, GHB, pills, and a bit of cocaine’. Mr Mackinnon formed the view that both at the time of your offending, and at the time of assessment in January 2021, you met the clinical criteria for poly-substance abuse disorder (‘PSAD’) and depressed mood disorder (‘DMD’):
In my opinion, Mr Johnson-Portelli has probably suffered with significant DMD (depression) since (at least) the time of his sister’s death in 2013 – her death (and the fact that a suspect was charged but eventually acquitted) having caused him to suffer unresolved, complicated grief and associated bitterness and anger. Other significant family problems (probably under-reported by Mr Johnson-Portelli) include the breakdown of his parents’ relationship, his father’s chronic substance abuse and multiple terms of imprisonment. These issues appear to have also contributed to Mr Johnson-Portelli’s chronic depression.
I note that Mr Johnson-Portelli’s prior criminal history commenced in 2014 (the year after his sister’s death) and his poly-substance abuse also (apparently) started at around the same time. In my opinion, to a significant degree, Mr Johnson-Portelli’s PSAD has been a means of self-medicating his chronic distress.
Mr Johnson-Portelli’s poly-substance abuse is also likely to have been ‘encouraged’ by the ‘faulty’ role models within his own family (including his sister and his father, both of whom had a history of illicit substance abuse).
As a consequence of the significant period of time you have spent on remand, Mr Mackinnon is of the view that your PSAD is now in partial remission, and is being managed with a prescription of 30mg methadone daily.
During your time in custody, you have enrolled in a full time education program in Business and IT. Part of your small business course involves the creation of a business plan and proposal, and I am told you aspire to owning your own concrete business. You have also completed a number of courses as part of the following programs: Certificate I in Access to Vocational Pathways, Certificate I in Information, Digital Media and Technology, Certificate II in Kitchen Operations, Certificate II in Furniture Making, Certificate II in Engineering, Certificate III in Micro Business Operations, and Certificate III in Civil Construction.
In addition, you also completed the ‘Ice and Me’ and ‘Cannabis and Me’ drug rehabilitation courses. You have also been working whilst in prison and appear to have developed a good work ethic. You have put on weight and created and maintained an exercise regime.
Your counsel tendered a reference from Daniel Micallef of A & L Paving Pty Ltd, confirming the availability of 20 – 30 hours of concrete labouring per week on a casual basis upon your release, with the possibility of future full time employment. Your older brother Joshua similarly provided a reference confirming his commitment to support you. Significantly, you will have stable accommodation available with your mother Barbara Johnson. Ms Johnson’s reference spoke of the ‘significant changes’ she has seen in your ‘attitude and willingness to help [yourself] towards the future’. The prosecution did not take issue with the materials relied upon on your behalf.

Defence submissions

As to the offending itself, Mr Hofman submitted that you had reacted spontaneously to a genuinely terrifying threat. The group was armed and had broken through a padlocked gate in order to confront you. Moreover, you had warned the intruders as they advanced that you had a gun and that they should stop. When they ignored the warning, you fired the gun through a locked wire-screen door in the general direction of the group of men in the dark. It was accepted that you did not intend to shoot Mr Nugent, or anyone else.
Beyond the significant sentencing discount that your plea should attract, Mr Hofman also emphasised your youthfulness. You were 18 at the time this happened and are now 20 years of age. Whilst in custody, you have sought to address your drug use and your efforts at engaging in education programs has been impressive. You now have employment open to you and the significant support of your brother and mother with whom you will live.
A submission was initially made as to reliance upon the principles in Verdins[3] case, although that was not persisted with on the plea. It was also noted that you had spent your time in custody subject to the restrictions imposed by the COVID-19 pandemic. That was significant given your age. Finally, Mr Hofman relied upon Mr McKinnon's opinion that you appear to genuinely want to rehabilitate yourself and that in his assessment you have reasonable prospects of doing so.
[3]R v Verdins (2007) 16 VR 269.
As to disposition, your counsel submitted that the term of imprisonment which you have already served in relation to these matters, 684 days, is sufficient to satisfy all the relevant sentencing purposes in this case.

Prosecution submissions

On behalf of the prosecution, Mr Sonnet provided helpful submissions which, as I understood them, did not take substantial issue with the defence position. Reference was made to your criminal history which is significant, however it was acknowledged that you appear now to be at the crossroads in your life, that is, whether you pursue rehabilitation and lead a law-abiding life or whether you continue to offend and spend longer periods in custody.
In terms of disposition, Mr Sonnet submitted that it was open to the Court to fashion a sentence that would enable your immediate release, whether that be through the imposition of a Community Correction Order (‘CCO’) in combination with the term of imprisonment already served, or the imposition of a conventional head sentence with a non-parole period. The Crown position, and the essential point of difference between the parties however, was that you should continue to be supervised for some time once you go back into the community.

Consideration

In considering these submissions, I have had regard to a number of cases which deal with the discharge of firearms where the offender has been charged with reckless endangerment of life. They are Zogheib v The Queen[4], DPP v Arvanitidis[5], R v Sahari[6], R v Bradley[7], R v Chaouk[8], R v Rudd[9] and DPP v Graoroski [10].
[4][2015] VSCA 334; 257 A Crim R 454.
[5][2008] VSCA 189; 202 A Crim R 300.
[6](2007) 17 VR 269.
[7][2010] VSCA 70.
[8][2013] VSC 362.
[9](2009) 23 VR 444.
[10][2018] VSCA 332, (‘Graoroski’).
Of those cases, I found the decision in Graoroski to be ‘relevantly comparable and instructively different’[11]. It also dealt with an offender who had reacted to significant danger by discharging a firearm and seriously injuring an assailant. However, unlike this case, by the time the gun was discharged, the danger had passed. The conduct was described as ‘extraordinarily reckless and caused life-threatening injuries’[12] but the circumstances which gave rise to that conduct did, in the Court’s view, ‘operate powerfully to ameliorate’[13] the objective criminality of the offending, albeit that it did not extinguish that criminality.
[11]Zogheib per Maxwell P at paragraph [2]
[12]Graoroski at [33].
[13] Ibid at [32].
The offender in that case had been charged with reckless conduct endangering life which attracted a maximum penalty of 10 years imprisonment, as distinct from this charge which attracts a five year maximum. After a successful Crown appeal, the sentence imposed on that charge was 18 months imprisonment. A further charge of being a prohibited person in possession of a firearm also attracted an 18 month term of imprisonment, six months of which was made cumulative, to render a total effective sentence of two years. A non-parole period of 12 months was fixed.
Returning to this offending, I accept Mr Hofman's submission that the particular features of the conduct which constitute Charge 2 make this case unique. The group which confronted you were armed and clearly meant to harm. You warned them that you had a gun and asked them to stop but they continued. Unlike Graoroski, indeed unlike any of the cases reviewed, you were in immediate danger when you discharged the firearm. Those circumstances, in my view, do operate powerfully to ameliorate the nature and gravity of your offending and your moral culpability.
The fact of you being a prohibited person in possession of firearms however remains a very serious offence. So much is also recognised in the Court of Appeal's reasoning in Graoroski in imposing a sentence of 18 months imprisonment for the possession of that offender’s shot gun. Your possession of the gun used in this incident on 11 February and the continued possession of it on 27 March, together with a sawn-off shotgun, creates the obvious continuing risk that it will be used to cause serious injury or death. I note also that offence is punishable by a maximum term of 10 years imprisonment. There is, therefore, a need to emphasise general deterrence and to some extent specific deterrence in respect of that offending.
Balanced against those more punitive sentencing purposes is the persuasive submission that you have reached a very important point where, if given the opportunity, you may be able to turn your life around. Certainly the authorities relied on by Mr Hofman as to your youth[14] require me, to the extent possible, to emphasise your rehabilitation.
[14]R v Mills (1998) 4 VR 235; Azzopardi v R (2011) 35 VR 43.
In addition, the sentence I must impose needs to be proportionate to the gravity of your offending, bearing in mind the unique circumstances of this case. After careful consideration, I have come to the view that whilst there may be some utility in having you supervised once released, I am constrained to impose a sentence which in all of the circumstances is no more severe than is warranted.
The sentence I will now impose, in my view, adequately reflects the various competing sentencing purposes of general and specific deterrence, denunciation, just punishment, protection of the community and rehabilitation, but amounts to a lesser period of imprisonment than you have already served. In those circumstances, I cannot require you to be further supervised.
I should add that in deference to the submission made by Mr Sonnet that you should be further supervised in the community, you were assessed as to your suitability to undertake a CCO. I was provided with a favourable report from the assessing clinician, Ms Veneziano, from the Office of Corrections, which in part stated as follows:
Mr Johnson-Portelli has spent almost two years in custody, during this time he has spent ample time thinking about his future and reflecting on his life, substance use and offending behaviours. He has come to recognise that he does not want to be that person anymore. During this time, he has been keeping busy by participating in counselling, education, exercise and working. He has been on the methadone program for approximately twelve months which he finds to be beneficial and is keen to continue on this program when in the community.
The report, in my view, tends to support the view that having spent nearly two years in custody, you now have your best chance to turn your life around. As you have heard, you will not be placed on a CCO, your rehabilitation will be your responsibility.

Sentence

Taking all relevant matters into account, you will be sentenced as follows:
On Charge 1, being a prohibited person in possession of a firearm, you will be convicted and sentenced to 12 months imprisonment.
On Charge 2, engaging in reckless conduct endangering serious injury, you will be convicted and sentenced to 12 months imprisonment.
On Charge 3, being a prohibited person in possession of a firearm, you will be convicted and sentenced to 15 months imprisonment.
On Charge 4, possession of a drug of dependence, you will be convicted and fined $250.
On the related summary offences, you will be sentenced as follows:
On the charge of possession of cartridge ammunition, you will be convicted and fined $400.
On the charge of possession of a prohibited weapon, you will be convicted and sentenced to 1 month imprisonment.
I will order that 4 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 3, all other sentences are to be served concurrently, rendering a total effective sentence of 19 months.
Section 11(2) of the Sentencing Act 1991 (‘the Act’) empowers me to fix a non-parole period in these circumstances. I will not do so because you have already served the head sentence imposed.
I will declare pursuant to s 18 of the Act that you have already served 684 days of that sentence by way of pre-sentence detention. I will cause that declaration to be noted in the records of the Court.
I will also declare pursuant to s 6AAA of the Act, that but for your plea of guilty, you would have been sentenced to a total effective sentence of 3 years imprisonment with a non-parole period of 2 years. I will cause that declaration to be noted in the records of the Court.
I will grant the forfeiture order and disposal order and sought by the Crown.

[2021] VCC 140

22 February 2021