Director of Public Prosecutions v Johnston

[2024] VCC 1367

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00552

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANGUS JOHNSTON

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JUDGE:	HIS HONOUR JUDGE KELLY
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2024
DATE OF SENTENCE:	4 September 2024
CASE MAY BE CITED AS:	DPP v Johnston
MEDIUM NEUTRAL CITATION:	[2024] VCC 1367

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:          Aggravated Burglary — Sexual Assault — Theft — Causing injury recklessly — Three victims — Offending over a single day — Alcohol affected — Bugmy — Verdins — Guarded prospects of rehabilitation — Significant criminal history — Substance abuse — Self-described institutionalisation — Parsimony — Totality.

Legislation Cited:         Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 169 CLR 571; R v Verdins (2007) 6 VR 269; Director of Public Prosecutions v Meyers (2014) 44 VR 486; Hogarth v The Queen (2012) 37 VR 658; R v McKee [2003] VSCA 16

Sentence:  Total effective sentence of four years one month with a non-parole period of two years four months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms B. Proud	Michaelson Lawyers & Associates

HIS HONOUR:

Introduction

1.Angus Johnston, you have pleaded guilty to one charge of aggravated burglary, three charges of sexual assault, one charge of theft and one charge of causing injury recklessly. The maximum penalties for each of these offences are as follows:

·        Aggravated Burglary — 25 years' imprisonment

·        Sexual Assault — 10 years' imprisonment

·        Theft — 10 years' imprisonment

·        Causing injury recklessly — 5 years' imprisonment

Circumstances of Offending

2.There are three victims in this matter, and I have anonymised them ('PC'), ('SR') and ('RC').

Incident 1

3.On 8 October 2022, PC was working alone at a massage parlour. At approximately 6:20 pm, you attended the rear entrance and rang the doorbell. PC met you and unlocked the door. You demanded sex and 'the full service'. PC refused, explaining that only a massage was available.

4.You left and returned at approximately 6:25 pm. You again requested sex and the 'full service', this time offering money. PC refused again and explained that the back door is used for staff only and that you should use the front door. You pushed open the door, grabbed PC by the shoulders and pushed her into the adjacent staff area. This is the subject of Charge 1 — aggravated burglary.

5.You forced PC to turn around and pushed her into a corner. You grabbed her breasts over her clothes. You then rubbed her vagina over her clothes roughly for over a minute. This is the subject of Charge 2 — sexual assault.

6.PC screamed that there was CCTV footage. You left through the rear door. PC ran to a nearby restaurant where she contacted her managers and notified them. One of her managers called Triple 0 on her behalf. PC noted some pain and bleeding during urination that afternoon and evening. She had marks on her left eye and cheek.

Incident 2

7.SR was working as a taxi driver and commenced her shift at 11:00 am on 8 October 2022. At around 9:20 pm, she attended the Shepparton train station to pick up a fare. As the female passenger entered the front passenger seat, you entered the back seat. You did not know the female passenger.

8.SR asked you to put your seatbelt on. When she asked for the destination, the female passenger nominated the mental health unit and you said 'Yeah, I'll go to the psych ward too'. SR persisted in asking you to put your seatbelt on. You then suddenly leaned on top of SR, forcing her to turn around. You grabbed her from behind and had both hands across her front, hugging her and you kissed her. This is the subject of Charge 3 — sexual assault.

9.SR began pressing the horn of her car and yelling at you to get off her and out of the cab. You exited the taxi. SR drove the female passenger to the hospital. Shortly after, she realised that her wallet which contained three bank cards, miscellaneous items and approximately $170 cash from earlier fares was missing. This is the subject of Charge 4 — theft.

Incident 3

10.RC was finishing their shift working at Shepparton Railway Station. You waved them down as they exited the secure carpark. You seemed drunk. You were stumbling and unable to keep your head up.

11.RC slowed and stopped to avoid a collision. They attempted to open the car's driver side window slightly, but it descended completely. You lunged into the car and attempted to grab the keys from the ignition. The electronic head snapped off. You opened the driver's side door and yelled at RC to leave the car. RC refused. You eventually told RC you wanted to go home. You were slurring your words. You began to cry.

12.RC offered to drive you home in an effort to calm you down. You remained wedged between them and the open door. You climbed on the top of RC and into the passenger seat.

13.RC's manager pulled up next to the driver's side of the vehicle and asked if RC was okay. RC told them they were giving you a lift home. They made the point of saying where they were going. You continued to cry, apologise and introduce yourself while they drove you.

14.You asked RC if they were single. You again offered money saying 'I've got two grand and a big dick'. You extended your hand and RC shook it, in an attempt to calm you. You leaned over, still gripping their hand and kissed them on the left cheek. They pulled away and you climbed on top of them, repeatedly trying to kiss them on the lips while they struggled.  You forced your tongue into their mouth. This is the subject of Charge 5 — sexual assault. You continued to use your teeth to bite them on their lips and chin, causing visible bruising and blood. This is the subject of Charge 6 — causing injury recklessly.

15.RC twisted away and managed to call their manager for help. You turned to face the front and put the car in gear. You tried to push the accelerator a few times before realising the handbrake was on. You eventually left the vehicle and began stumbling around. RC sped off and met their manager at Liberty Petrol Station.

Police Investigation and Arrest

16.Police attended the massage parlour at approximately 8:40 pm. They obtained CCTV footage identifying you.

17.Two other police officers attended Shepparton at around 10:10 pm in relation to victim SR. SR attended the Shepparton police station to provide a statement and had her wallet returned to her. The wallet had a phone which belonged to your partner at the time.

18.At approximately 11:40 pm, two other police officers attended Liberty Service Station in relation to unrelated duties. They were approached by victim RC who provided an initial report of what had happened. The officers arranged for RC to attend the Shepparton police station to make a statement.

19.Police began to search for you around midnight. At approximately 1:49 am on 9 October 2022, a Triple 0 call was made in relation to you self-harming. Police attended and observed a large amount of blood on your hands, torso and head. Family members informed police you had begun hitting your own head with rocks from the garden.

20.Due to your verbal and physical threats to others and yourself, you were sedated by paramedics and transported to Goulbourn Valley Hospital. You were subsequently arrested and cautioned when you regained consciousness. You participated in an interview on the evening of 9 October 2022 after you were discharged.

Victim Impact Statement

21.I was provided with a victim impact statement from RC. In it, they describe feeling constantly on edge when they leave the house. They described staying hypervigilant and concerned about security, always fearful that something might happen. They described the impact your actions have had on their relationships, their inability to sleep and the fear they have about being alone in public.

22.They said their mental health has suffered and continues to suffer, they describe feeling pathetic and hopeless, believing that others might judge them for not remaining more vigilant.

23.They describe a permanent scar on their lip. They underwent numerous blood tests to eliminate potential diseases as a consequence of your actions.

24.Neither SR nor PC have provided Victim Impact Statements to the court, but your offending must have been disturbing and frightening to them.

Personal Circumstances

25.Your personal circumstances were summarised by your counsel at your plea and in the report of Ms Carla Lechner. I was also provided a VOCAT report from your mental health social worker, Charlotte Brewer.  

26.You were born and raised in Mildura as an only child. You are of Aboriginal heritage on your mother's side, of the Barkindji mob. Your father passed away in the late 1990s from a heroin overdose. Your mother was an alcoholic. You have a limited relationship with your mother and no contact with your three half siblings. Your previous partner had four children while you were together and neither of you has retained custody of any of them. I am told this causes you anguish and distress.

27.You were raised by your older half-sister Nicole and her partner. Her partner was physically, emotionally and verbally abusive. You said you did not know your mother growing up and only saw her now and again.

28.You moved to Shepparton and attended primary school where you experienced bullying as a result of your deafness and the need to wear hearing aids. You said the school reported that you were experiencing physical abuse and you were placed in foster care.

29.You endured more bullying and displacement through high school. You fought a lot with your mother. You were taken out of her care and returned to foster care. You were expelled half-way through Year 7. You said you 'hated [your] life growing up'.

30.You described your early adolescent years in residential care to Ms Lechner, stating that you were often alone, not in school and getting into trouble with drugs and alcohol. You describe being homeless and sleeping in the park often with your partner at the time. You describe children being removed from your care, saying that you do not know if they are yours given you and your partner were both sleeping with other people. You describe escalating substance use and violence in that relationship.

31.You have worked in labouring but you were laid off after six weeks. You completed a Certificate II in Hospitality and obtained your Responsible Serving of Alcohol certificate as well as your forklift license but you have not worked in these fields.

32.You told Ms Lechner that you have suffered a serious stabbing. Your recovery took four to five months and had a profound impact on you. You have also sustained a number of head injuries.

Defence Submissions

33.Ms Proud on your behalf conceded that your offending is serious and calls for a sentence of imprisonment. She submitted that your sentence ought to be appropriately moderated taking into account your profound childhood deprivation which enlivens the principles in Bugmy[1] and Verdins.[2]

[1] Bugmy v The Queen (2013) 169 CLR 571 (‘Bugmy’).

[2] R v Verdins (2007) 6 VR 269 (‘Verdins’).

Moral Culpability and Objective Gravity

34.Ms Proud conceded that your offending is objectively grave. You terrified three victims. Each one was going about their business, two were at work and the other was leaving work for the evening. Your offending has doubtless left an indelible mark on them, noting that, as indicated earlier, two of them have not provided Victim Impact Statements. They are conscientious, dutiful contributors to the community who have done nothing to deserve your disturbing interest in them.

35.You walked away having been rebuffed by PC, then returned repeating your demands. You had the opportunity to reflect on the distress your first confrontation had caused her, but you elected to return and persist with your offending against her. That offending, whilst opportunistic, was a relatively protracted and persistent violation in a setting where she was alone and unprotected.  Your offending against your second and third victims was opportunistic and spontaneous, but these offences amount to repeated sexually charged assaults against women alone without the means to protect themselves or escape you.

36.Myers, identifies a suite of factors in assessing the objective gravity of the offence of Aggravated Burglary, namely:[3]

a)the offender's intent at the point of entry;  

b)the mode of entry; 

c)whether the offender was carrying a weapon; 

d)whether the offender was alone or in company; 

e)the time of day at which the burglary took place;  

f)what the offender knew or believed about who would be inside; and 

g)whether the offender was someone of whom the victim was particularly frightened. 

[3] Director of Public Prosecutions v Myers (2014) 44 VR 486, 498 [43].

37.In assessing the seriousness of your conduct I have also had regard to the guidance provided by the court in Hogarth.[4]

[4] Hogarth v The Queen (2012) 37 VR 658, 659, 673-4.

38.Your theft was low range. Your victim was able to recover her wallet. The value was modest.

39.I accept that your offending occurred over a single day, when you were drunk and exhibiting extremely poor impulse control.

40.The objective gravity of Charges 2,3,5 and 6 is in the mid to upper-mid range. The objective gravity of Charge 1 is mid-range.

Remorse

41.Ms Lechner assessed you as a moderate risk of future sexual offending. She based this primarily on psychosocial factors and your general offending which includes violent offending but not targeted sexual offending.

42.Ms Proud conceded that your rehabilitation required significant support in the community though she submitted that your prospects are not hopeless. She pointed to the humiliation and shame you confessed to Ms Lechner and the opportunistic and impulsive nature of your offending as factors that provide some basis for cautious optimism. That might be true of the first, but not the second.

Prospects of Rehabilitation

43.As noted elsewhere, you have been assessed as a moderate risk of future sexual offending, albeit in relation to general criminality and not sexual deviancy.[5] You have a limited capacity to engage in consequential thinking and you have poor impulse control.[6] Concerningly, you also expressed to Ms Lechner that committing crime is inevitable given your current situation,[7] and that you may commit crimes to receive attention and help.[8] You have a dim view of your own prospects and refer to yourself as institutionalised.[9]

[5] Lechner Report, p 8.

[6] Lechner Report, p 4, 10[5].

[7] Lechner Report, p 4.

[8] Lechner Report, p 6.

[9] Lechner Report, p 6.

44.You have a solid history of prior offending, although no relevant history of sexual offending. Your criminal history is taken up almost exclusively with street offences, dishonesty offences and breaches of court orders. You have been trialled on a number of community dispositions, and except for one period in 2020 when you were compliant for nine months, you have been unable to abide by, or complete, them. Upon release from rehabilitation programs, you swiftly relapse.

45.That said, you have some insight into your conduct and the impact your offending has had on your victims. You have expressed remorse for your offending.[10] You spoke positively about your time in drug rehabilitation. You described it as the best nine months of your life and expressed anger at being pre-emptively discharged back into a state of homelessness.[11] You are willing to work at disarming the triggers to your offending behaviour.

[10] Lechner Report, p 6, 10[5].

[11] Lechner Report, p 5.

46.You have used your time in custody productively. You have developed a stronger connection to country by completing cultural activities and leading NAIDOC Week dance performances.

47.My assessment of your prospects is not as dim as yours. You have underlying psychological and emotional issues which impair your capacity to regulate your conduct and comply with directions. Nevertheless, you have betrayed some capacity to identify the factors that expose you to offending and some capacity to work on reducing or eliminating your exposure to them. Your prospects are guarded, not extinguished.

Verdins

48.Ms Proud submitted that your complex Post Traumatic Stress Disorder and cognitive immaturity enliven limbs 1, 3 and 4 of Verdins. The Prosecution submitted that there is no evidentiary foundation for the engagement of limb 1.

49.You told Ms Lechner that you had no memory of your offending due to your consumption of illicit substances. You said you had had an 'outburst'. Ms Lechner believes that your offending is the product of your drug-intoxication and your anger at your then partner.[12]

[12] Lechner Report, pp 5-6, 10[4].

50.Your Post Traumatic Stress Disorder has interrupted your childhood development, which makes you vulnerable to maladaptive avoidance strategies and dysregulation. Your offending generally occurs during periods of dysregulation.[13]

[13] Lechner Report, p 9[3].

51.There is therefore a slender causal connection between the emotional dysregulation triggered by your Post Traumatic Stress Disorder and offending such as this which is, in part, the consequence of emotional dysregulation. Self-induced intoxication does not lower your moral culpability except in the sense identified in paragraphs 56-58 below, but your offending is partly attributable to drug intoxication and partly attributable to factors traceable to the Post Traumatic Stress Disorder you suffered in childhood. I am prepared to moderate your sentence somewhat to acknowledge your lowered moral culpability.

52.Your impaired cognition and your untreated Post Traumatic Stress Disorder make you a sub-optimal vehicle for general deterrence which needs to be sensibly moderated. Limb 3 is therefore enlivened. There are factors peculiar to you which have predisposed you to poorly managing your emotions in the community and that is a partial explanation for this offending.

53.You are nonetheless capable of comprehending the wrongfulness of your conduct. I am therefore not prepared to find that specific deterrence needs to be sensibly moderated.

Bugmy

54.Your life is characterised by 'exposure to abuse, emotional neglect, instability of primary carer, school and home'.[14]

[14] Psychological report of Carla Lecher dated 12 July 2024, p 9.

55.In a VOCAT report by your counsellor, it reads:

His life has been one long trauma characterised by sickness, abandonment and rejection by his parents, physical and emotional abuse, bullying, systems abuse from the services that should have been supportive of him, no therapy, drug use and the removal of four children. Angus quite literally never had a chance to be anything other than angry and anxious.

56.Mr Moore conceded that the principles in Bugmy apply to you. On the strength of your counsellor's observations, you are a Bugmy archetype – failed by those charged to raise you, failed by the State, failed by the organisations in loco parentis who had an obligation to arm you with the resources to navigate life without falling through the cracks. Not one of these institutions has stood up and equipped you for life.

57.You have experienced profound disadvantage, hardship, familial dysfunction and displacement throughout your life.[15] I accept that your moral culpability should be moderated in the general sense.

[15] Psychological report of Carla Lechner

58.Ms Lechner says that your experiences have affected your normal development, emotional regulation and your ability to manage negative emotions which in turn increases your risk of drug use, hypervigilance and dysregulation.[16] Ms Lechner believes that your offending typically occurs in the context of this dysregulation. I am satisfied that your moral culpability is also reduced in the specific sense identified in Bugmy.

[16] Report of Carla Lechner, 9[2].

59.I have also considered the impact of your exposure to alcohol and substance abuse from a young age on your moral culpability. The Court of Appeal in R v McKee said:

The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question, as Spigelman CJ acknowledged. I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse.[17]

[17] [2003] VSCA 16, [13].

60.Your childhood was blighted by anti-social influences and exposure to frequent violence and substance abuse. You report smoking a gram of cannabis a day having commenced your drug use in your early teenage years when you were placed into residential care. You report regularly consuming GHB, cocaine, ecstasy and you have also abused buprenorphine, Avanza and Seroquel. You report your alcohol consumption as 'a straight bottle over a weekend, and a ten‑pack of mixed spirits every two days'.

61.Your self-described institutionalisation is the consequence of institutional indifference and the abdication of responsibility by those entrusted to raise you.

Plea of Guilty

62.Ms Proud submitted that you first indicated your plea of guilty following the first committal mention of this matter in February 2023, notwithstanding the charge of aggravated burglary. She submitted that your plea has significant utilitarian value.

63.You have saved the court resources and your victims the ordeal of giving evidence. However, you have proffered no apology for your actions to them. Ms Proud explained that your psychological makeup is such that you are incapable of expressing contrition to your victims, apparently. I note that when you provided your history to Ms Lechner it was liberally laced with self-pity. You did acknowledge however to her, the harm you caused and expressed revulsion at what you had done.

Sentencing Principles

64.Section 5 of the Sentencing Act 1991 provides that the only purposes for which you may be sentenced are:  

a)To punish you in a manner and to an extent which is just in all of the circumstances;   

b)To deter you or others from committing similar offences in future;   

c)To facilitate rehabilitation;   

d)To manifest the denunciation of your conduct;   

e)To protect the community; or   

f)A combination of two or more of these purposes.   

65.This offending, terrifying for its victims, must be strongly denounced, and the principles of general deterrence, albeit sensibly moderated, and community protection are centrally important. Your rehabilitation is somewhat displaced in the hierarchy of sentencing purposes, but I intend to leave open the door to your reformation. Your moral culpability is reduced in the general and specific senses identified in Bugmy and I have found limb 1 of Verdins is engaged. Your sentence needs to be modified to reflect this lowering of your culpability.

66.I am also mindful of the principles of parsimony and totality. This offending can be seen as an unbroken episode warranting substantial concurrency. You are 30 years old and I need to avoid imposing a crushing sentence on you. You have received gaol terms in 2018 for dishonesty offences and in 2019 and 2022, but those sentences were short and sharp. You are in unfamiliar country now.

Sentence

67.Mr Johnston please stand.

68.On Charge 1, Aggravated Burglary, you are convicted and sentenced to 2 years' gaol.

69.On Charge 2, Sexual Assault, you are convicted and sentenced to 2 years' gaol.

70.On Charge 3, Sexual Assault, you are convicted and sentenced to 7 months' gaol.

71.On Charge 4, Theft, you are convicted and discharged.

72.On Charge 5, Recklessly Causing Injury, you are convicted and sentenced to 15 months' gaol.

73.On Charge 6, Sexual Assault, you are convicted and sentenced to 3 years' gaol.

74.The sentence on Charge 6 is the base sentence. I order that 6 months on Charge  1 be cumulated; I order that 3 months on Charge 2 be cumulated; I order that 1 month of Charge 3 be cumulated and 3 months of Charge 5 be cumulated. That produces a total effective sentence of 4 years, 1 month. I fix a non-parole period of 2 years, 4 months.

75.You have served 696 days of presentence detention, and I declare these days as time served against the sentence I have imposed.

76.Pursuant to s 6AAA of the Sentencing Act I declare that but for your plea of guilty I would have imposed a sentence on you of 6 years gaol with a non-parole period of 4.

77.Mr Moore, are there any ancillary orders sought?

OFFENDER:  What was that?  What was that?

HIS HONOUR:  I am asking the prosecutor if there are any orders sought.  You can sit down now, Mr Johnston.  Mr Moore, I think you are muted.

MR MOORE:  Sorry about that, Your Honour.  No, there are no ancillary matters.

HIS HONOUR:  Very well.  That is the sentence.

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