Director of Public Prosecutions v Johnston
[2021] VCC 2151
•16 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Indictment No. L12934398
CR-21-01585
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK JOHNSTON |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2021 | |
DATE OF SENTENCE: | 16 December 2021 | |
CASE MAY BE CITED AS: | DPP v Johnston | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2151 | |
REASONS FOR SENTENCE
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Subject:Criminal Law - Sentence
Catchwords: Guilty Plea – Reckless Conduct Endangering Life – Recklessly Expose Emergency Worker to Risk by Driving – Reckless Conduct Endangering Serious Injury – Resist Emergency Worker on Duty – Possession of a Drug of Dependence – Possession of Identification Information – Drive Whilst Disqualified – Commit Indictable Offence Whilst on Bail – Fail to Give Information as to Driver
Legislation Cited: Crimes Act 1958 s 22, s 317AE, s 23, s 73(1)(c), s 73(1)(a), s 192C(1) Road Safety Act 1986 s 60
Cases Cited:Verdins v The Queen (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169
Sentence:Convicted and sentenced to 3 years and 10 months imprisonment with a minimum of 2 years and 7 months. S 6AAA Declaration: 5 years and 4 months with a minimum of 3 years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Ellis | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A. Purcell | Sarah Pratt and Associates |
HIS HONOUR:
1Patrick Johnston, you have pleaded guilty to reckless conduct endangering life (maximum penalty 10 years); recklessly expose emergency worker to risk by driving (maximum penalty 10 years); reckless conduct placing in danger of serious injury (maximum penalty five years); resist emergency services worker (maximum penalty five years); Charges 5 and 6 of possession of drug of dependence, trafficking purpose not excluded (maximum penalty five years); Charge 7, possession of drug of dependence, trafficking purpose excluded (5 penalty units); and the offence of possessing identification information (maximum penalty three years). Also, you pleaded guilty to three summary offences of failing to give driver information (maximum penalty three months' imprisonment); commit indictable offence whilst on bail (maximum penalty three months); and driving whilst disqualified (maximum penalty two years).
2At the time of the offending, you were 30 years old. You were the registered owner of a 1986 white Toyota Coupe registration 1NS1JI. Your driver's licence, which was a learner's permit, had been cancelled by the Dandenong Magistrates' Court on 17 July 2019 for a period of 30 months. The offending in this case arises from seven separate incidents.
Incident 1: 20 October 2020 (Summary Offence 48, failing to give driver information)
3At around 3.00 am on 20 October 2020, police observed your white Toyota heading west on Wellington Road in Mulgrave. They conducted checks on your licence as the registered owner and discovered your licence had been cancelled. Police then activated the emergency lights and sought to intercept the vehicle. The driver of the vehicle failed to stop and drove away on the wrong side of Wellington Road. Police discontinued the interception.
4On 23 November 2020, police served a notice under s60 of the Road Safety Act at your address in Box Hill requiring you to nominate the driver. You failed to do so. This is the basis of Summary Offence 48.
Incident 2: 23 October 2020 (Charge 1, reckless conduct endangering life, driving whilst disqualified)
5At approximately 2.06 am on 23 October 2020, you were driving a black Kia registration BEI862. This vehicle was registered to a man named Christian Barrales. He was the back seat passenger and Ms Wendy Walsh was in the front passenger seat.
6
Police observed the vehicle you were driving travelling south on the Nepean Highway without its headlights turned on. They activated emergency lights to intercept your vehicle. You accelerated to a speed of 86 kilometres per hour along Lower Dandenong Road where the speed limit is 60 kilometres per hour. You continued along Lower Dandenong Road and then turned left at the intersection of Boundary Road without indicating. You drove north along Boundary Road and turned right into Redwood Drive before immediately turning left and travelling north on the opposite side of Boundary Road. You reached a maximum speed of
117 kilometres per hour. You approached the intersection with Lake Drive and came to a sudden stop. You then drove off rapidly, again on the wrong side of Boundary Road, towards incoming traffic.
7Dash camera footage seized from the vehicle captured you saying, 'They won't chase us because I'm doing - because I'm being, so dangerous.' You drove erratically from the far-right lane over the middle lane and into the left lane at speeds reaching 98 kilometres per hour, passing two civilian vehicles and a police vehicle coming the other way. The stationary police vehicle observed that you still did not have your headlights on. You passed the police vehicle at a speed of 85 kilometres per hour. You continued north on the wrong side of Boundary Road to the intersection of Centre Dandenong Road heading towards Dingley Village.
8Dash camera footage reveals you sped away from police and you were shown to be driving at 126 kilometres per hour in a 60 zone. These facts are the basis of Charge 1, reckless conduct endangering life and Summary Offence 39, driving whilst disqualified.
9Mr Barrales made a statement nominating you as the driver. Clothing shown on the footage corresponded with clothing located at your address in November by police.
Incident 3: 1 November 2020 (Summary Offence 49, failing to give driver information)
10On 1 November 2020, police observed your Toyota heading west on the Princes Highway in Dandenong North without the headlights on. Police sought to intercept the vehicle but the driver drove away on the wrong side of the Princes Highway.
11On 23 November 2020 a notice under s60 of the Road Safety Act was served at your address at Box Hill requiring you to nominate the driver. You failed to do so.
Incident 4: 4 November 2020 (Summary Offence 50, failing to give driver information)
12At approximately 5.07 pm on 4 November 2020, police saw your white Toyota driving in the emergency lane of Eastlink at a fast rate of speed. They followed your vehicle which left Eastlink at the Burwood Highway. They activated the emergency lights and the siren to intercept your vehicle. The driver failed to stop and police ceased pursuing the vehicle.
13On 23 November a notice under the Road Safety Act was served at your address in Box Hill requiring you to nominate the driver. You failed to do so.
Incident 5: 15 December 2020 (Charge 2, recklessly expose an emergency worker to risk; Summary Offence 8, driving whilst disqualified; Summary Offence 12, committing an indictable offence on bail)
14At 8.00 am on 15 December 2020, police observed your white Toyota parked in the driveway at 267 Windermere Drive in Ferntree Gully. Both you and the vehicle were flagged by police in respect of numerous outstanding matters.
15Acting Sergeant Rushton observed you speaking to the owner of the premises, Tracey Simmons. Acting Sergeant Rushton drove the police vehicle behind your Toyota, by which time you were sitting in the driver's seat of the vehicle. Another officer, First Constable Fuller, approached you and told you he was a police officer and requested that you step out of the vehicle. You refused to leave the vehicle and you began actively resisting First Constable Fuller. You started the engine of your car and attempted to put the vehicle in gear to avoid police. A third officer, Senior Constable Barker, opened the passenger side of the vehicle to stop you from driving away. He used OC foam to your face.
16Acting Sergeant Rushton, on the other side of the vehicle, used OC foam as well. That had little effect on you and you put the vehicle into reverse and began driving backwards towards the police vehicle, exposing all three police officers to risk, given how close they were to your moving vehicle. One officer was thrown sideways as you reversed. This can be seen on the footage that was played. You then put the vehicle into drive and drove forward hitting a red sedan nearby belonging to Ms Simmons. By driving on the front lawn of the property, you were able to leave the scene at a fast rate of speed.
Incident 6: 16 December 2020 (Charge 3, reckless conduct placing in danger of serious injury; Summary Offence 53, drive whilst disqualified)
17At approximately 8.47 pm on 16 December 2020, police observed your Toyota heading north on Stud Road, Rowville. One of the officers estimated the vehicle was travelling at 100 kilometres per hour in an 80 zone. The speed was confirmed as 97 kilometres on radar. Police activated lights and sirens to intercept your vehicle. You failed to stop and drove through red traffic lights at the intersection of Bergins Road and Stud Road in Rowville.
18Police took up a position directly behind your vehicle in the left-hand lane of the three northbound lanes at the intersection of Stud Road and Wellington Road. You remained stationary at the red lights for the entire cycle and when the red lights changed to green, police attempted to activate the emergency lights to intercept your vehicle. Again, you failed to stop. You continued along Stud Road through two further sets of red lights, accelerating to a speed of 120 kilometres per hour in an 80kph zone. This is the basis of Charge 3, reckless conduct endangering serious injury and drive whilst disqualified.
Incident 7: 17 December 2020 (Charge 4, resist emergency worker)
19At approximately 7.00 am on 17 December 2020, police from the Croydon Divisional Tasking Unit located your Toyota in the driveway of 72 Bursaria Avenue in Ferntree Gully. Police found you inside the premises sitting on a couch in a drug affected state. You immediately confronted them and resisted them by thrashing your arms around and kicking out at police members. Police used OC foam to your face which had an immediate effect. You were placed under arrest and handcuffed and taken outside to the front lawn (that is the basis of the resist).
20You were searched by police who found $3,550 in your pocket. They also located 10 grams of a substance believed to be methylamphetamine and numerous snap lock bags and a set of digital scales. That is Charge 5.
21Then they found three containers of a liquid substance being 1,4‑butanediol. This is the basis of Charge 6. They found a taser, an Apple iPhone and then identification in the name of other people, including Jacqui Cameron and Rebecca Milic. This is the basis of Charge 8 and 9. Inside the house, police found 42 grams of cannabis in a snap lock bag, which is the basis of Charge 7, possession of drug of dependence, namely, cannabis.
22You were brought back inside to identify the bag on the couch and its contents. You became enraged and began to struggle with police. You were taken to hospital for observation, complaining of a pre‑existing back injury. You were soon released from hospital and taken to the Croydon police station and remanded in custody. You did not participate in a record of interview.
Personal circumstances
23Mr Johnston, you are now aged 31. You have been in custody in relation to these matters since your arrest, save for a period of seven days which related to a sentence for an unrelated matter.
24You were born in the United Kingdom. You came to Australia with your family when you were a seven-year-old boy. Your parents separated soon after they arrived in Australia. You describe a distant relationship with your father who was a schoolteacher. I am told he provided financial support for the family.
25You describe being bullied at school because of your English accent. You were shy and you did not have many friends. However, you were a good student. You completed year 12 and went on to Deakin University to study a teaching degree. It was at that time that you started using drugs regularly. You left university after the first semester. Apparently, in a drug-using milieu in which you associated, you felt a sense of camaraderie and friendship you had not known previously.
26You had some employment with Telstra in a call centre and some other data entry jobs. You have also worked as a labourer. I am told that you longest period of unemployment was from between 2014 and 2017.
27On the plea your counsel Mr Purcell argued that the abandonment of your tertiary studies for a lifestyle underpinned by drug use has led to your multiple court appearances and periods of imprisonment.
28Your father died five years ago. You had an unsatisfactory relationship with him because, after a reunion, he severed ties with you because of your drug use. You feel that you had many unresolved issues with your father and you never had the opportunity to resolve those problems. You have a good relationship with your mother and your siblings who, despite your ongoing drug use and offending, are still willing to support you when you return to the community.
29Since you were remanded in custody for this spree of offending, you have learned that you are the father of three infant children from two different relationships. I am told you have had Zoom visits in prison with the mothers of these children and the children themselves. Mr Purcell submitted this is a factor motivating you to stop using drugs and to rehabilitate.
30
A psychological report was tendered on your behalf from Ms Miriam Latif. The author of the report diagnosed you with a stimulant use disorder, a sedative hypnotic use disorder and an avoidant personality disorder. None of these matters are said to give rise to the principles in the case of Verdins. Ms Latiff does offer the opinion that, to promote your rehabilitation, you need psychological treatment, in-patient drug treatment, disengagement with negative peers and employment. She refers to your abstinence from drugs during previous parole periods.
Mr Purcell also emphasised that you have done well on parole in the past.
31You indicated your intention to plead guilty to the charges on the indictment and the summary offences on 10 September 2021. You ran a contested committal; therefore, this is not a plea of guilty at the earliest opportunity. Nevertheless, I accept that your plea of guilty indicates some remorse and a willingness to facilitate the course of justice. Additionally, your plea of guilty has significant utilitarian value. This matter would have been a complex case if listed as a trial. It is likely there would have been several trials. The utilitarian value of your plea is heightened in the current circumstances where the court has a very significant backlog of trials due to the disruption caused by the pandemic. The need for a significant and palpable sentencing discount in the current circumstances was recognised by the Court of Appeal in the case of Worboyes. I have applied those principles.
32You have been in custody during the pandemic, therefore, you have been subject to the restrictions imposed in prisons in response to the pandemic. These have included the suspension of visits and restriction in educational programs. Lockdowns have been prevalent. I take into account the pandemic as increasing the burden of your imprisonment.
33In custody, you have been employed as a drug and alcohol peer educator at Marngoneet Prison. You have become a member of Narcotics Anonymous. I accept that, since you have been in prison, you have done everything that you can to further your rehabilitation.
34I have taken into account the contents of the letter you have written where you show insight into the effect of your criminal behaviour and remorse for what you did.
Criminal history
35You have an extensive criminal history which commenced in 2010 with drug offences, being possession of ecstasy and amphetamine. You were placed on a Community Based Order for a period of 12 months. The order was a rehabilitative one with conditions that you have treatment for your drug addiction. There was no further offending until 2013 when you received a good behaviour undertaking for a shop theft. In February 2015, for a car theft, driving while suspended and a range of other offences, including burglary and deception offences, you were placed on a Community Correction Order for a period of 12 months. You breached this order. The order was varied and you were again ordered to perform a Community Correction Order.
36Next, in December 2015, for possession of GHB and methylamphetamine, you received a sentence of 18 days. It appears from your criminal history that you had served this time in remand before the imposition of the sentence. In June of 2016, you were sentenced to 10 months' imprisonment to be served by way of a drug treatment order. This was for a range of offences including drug offences, dishonesty offences, bail offences and, relevantly, offences of failing to stop a motor vehicle on request and another of failing to stop a vehicle on police direction. There was also a charge of theft of a motor vehicle.
37Further offences of failing to stop a vehicle on police direction and careless driving and driving whilst disqualified as well as dishonesty and drug offences were subsumed into the drug treatment order in October 2016. However, on 5 October 2017, you breached the drug treatment order and you were ordered to serve the unexpired portion of the sentence, which was 167 days. Then in November 2017, for a fresh set of offences which again covered dishonesty offences, driving offences and drug offences, you were sentenced to 18 months' imprisonment with a non‑parole period of six months.
38In July of 2019, you were again before the Dandenong Magistrates' Court for another wide array of offences which this time included reckless conduct endangering life and failing to stop a vehicle on police direction. The sentence imposed was 18 months with a minimum of 10 months. I have been provided with the summary for the reckless conduct offence on that occasion and it is similar to the reckless conduct offence in this case.
39It is apparent from your criminal record and the offending in this case that you have persistently refused to obey police directions whilst driving motor vehicles. Your history is relevant to specific deterrence, community protection and the assessment of your prospects of rehabilitation. In my opinion, you have been given every opportunity by the courts to rehabilitate but you have not been able to make any substantial progress in that direction.
40Having regard to the number of offences here and your very discouraging history for similar behaviour, I consider your moral culpability for this offending to be significant. You did have a purpose for driving the way that you did on a number of these occasions, which was revealed in the dash cam footage from the reckless conduct endangering life incident. You believed that if you drove in a dangerous enough fashion, the police would not follow you. Considerations, therefore, of specific deterrence and community protection are very significant, given your criminal history.
41The reality is, you have continued to use drugs and drive motor vehicles in a reckless and dangerous way, putting in danger members of the public and any police who attempt to intercept you. If you continue to offend in line with your prior history and these offences, the risk that you will seriously injure or kill somebody on the roads is very real.
42This offending was accurately described by your counsel on the plea as a spree of offending. In relation to the offence of recklessly placing an emergency services worker at risk by your driving, the police were simply trying to apprehend you for the spree of offences you had engaged in until that point. They were doing their job for the community. Once again, you demonstrated your determination not to be apprehended in circumstances where you were surrounded by police at your vehicle. They made every effort to subdue you with OC foam, but you nonetheless placed them at risk by reversing your vehicle whilst they surrounded the car. One of the officers was knocked or thrown to the ground. The potential for significant injury in those circumstances was real. This was a serious matter and, again, considerations of community protection arise from this behaviour.
43Incident 2, the reckless conduct endangering life, was a ridiculous and potentially catastrophic piece of driving similar to an incident you have engaged in previously. As I said, the dash cam footage reveals you have reason for driving in that way.
44I take into account that there was no near collision shown on the footage with the vehicles driving in the other direction. So instances where greater actual danger materialised are not difficult to imagine. That said, it is still a serious piece of driving.
45Incident 6 of reckless conduct placing danger of serious injury was a further example of your willingness to drive in a manner that creates the risk of a serious collision in order to avoid police interception.
46Incidents 1, 3 and 4 involving failing to provide driver information, exemplify your determination not to cooperate with police in breach of your legal responsibilities.
47The indictable offences in this case carry substantial gaol sentences. The offence of reckless conduct has a maximum of 10 years, as does the offence of recklessly exposing an emergency services worker by driving. The drug offences relating to the substances seized are indicative of your ongoing abuse of illicit drugs and criminal behaviour.
48As regards to the drive whilst disqualified offences, you have multiple prior convictions for this offence and on these occasions, you were driving in breach of a lengthy disqualification period imposed for similar offending. The court orders of the disqualifying you from driving have proved ineffectual against your determination to ignore them.
49This was indeed serious offending across a number of separate incidents where you persistently demonstrated your determination not to cooperate with police or obey any of their lawful directions.
Prospects of rehabilitation
50I have had regard to the letter that you have written and a letter written by your sister. I have also had regard to your behaviour in prison on remand and the role you have played as a peer educator within the prison. I have been provided with certificates for courses you have completed and negative results from drug screens. These are all positive signs.
51This is the longest period you have spent in custody. The real test for you will come when you are released into the community and you have to rely on your own resources to avoid using drugs. I do accept that drug abuse is the genesis of your criminal conduct.
52Given your criminal history and the number of offences in this case, I can only be guarded about your prospects of rehabilitation. You are now aged 31 and if you do not change your lifestyle when you are released, you will end up spending longer and longer periods in prison. More alarmingly, there is a real risk that you will cause death or serious injury on the roads.
53The sentence I impose must be just and proportionate to your overall offending. To comply with this principle, I have made orders for substantial concurrency in respect of a number of the charges. I must though keep in mind that, although, these incidents might be described as a spree or a course of conduct, each was a separate piece of criminal conduct and a measure of cumulation is required to recognise that. For recklessly exposing an emergency worker to risk, the Sentencing Act requires any prison sentence imposed to be cumulative unless otherwise ordered. This modifies but does not exclude the operation of the totality principle which does remain important in this case. This was an entirely separate incident justifying some significant cumulation.
54Patrick Johnston, you are sentenced as follows:
·In relation to Charge 1 of reckless conduct endangering life, 18 months' imprisonment.
·In relation to Charge 2, recklessly exposing emergency worker to risk by driving, 14 months.
·In relation to Charge 3, reckless conduct endangering serious injury, 12 months.
·In relation to Charge 4, resist emergency worker on duty, six months.
·In relation to Charge 5, possession of a drug of dependence, namely methylamphetamine, four months.
·In relation to Charge 6, possession of a drug of dependence, namely
1,-4 Butanediol, three months.·In relation to Charge 7, possession of a drug of dependence, namely cannabis, convicted and discharged.
·In relation to Charge 8, possession of identification information (that relates to the credit card), three months.
·In relation to Charge 9, possession of ID information (tap-and go card), three months.
·In relation to Summary Charge 8, drive whilst disqualified, six months.
·In relation to Summary Charge 12, commit an indictable offence on bail, one month.
·In relation to Summary Charge 39, drive whilst disqualified, six months.
·In relation to Summary Charge 48, fail to give information, one month.
·In relation to Summary Charge 49, failing to give information as to driver, connected with the sentence, one month imprisonment.
·In relation to Summary Charge 50, failing to give information as to driver, convicted and sentences to one month imprisonment.
·In relation to Summary Charge 59, driving whilst disqualified, six months.
55Orders for cumulation will be as follows. The base sentence is Charge 1. Nine months of the sentence on Charge 2, six months of the sentence on Charge 3, two months of the sentence on Charge 4, one month of the sentence on Charge 5, one month of the sentence on Charge 8, two months of the sentence on Summary Charge 8 of driving whilst disqualified, two months of the sentence of Summary Charge 39 of driving whilst disqualified, the sentence of one month in relation to Charge 48 and the sentence of one month in relation to Charge 49 and the sentence one month in relation to Charge 50, two months of the sentence in relation to Summary Charge 53 are cumulative on each other and on the bases sentence in this matter.
56Now that ought to add up to three years and 10 months.
57I fix a minimum non-parole period I this matter of two years and seven months. In relation to Charges 1-3, any licences you hold are cancelled and you are disqualified from obtaining any licences for a period of four years and six months. On Summary Charges 48, 49 and 50, any licence you hold, are cancelled and you are disqualified from obtaining any licence for a period of two years. So those orders are concurrent, so it's a period of four years and six months.
58Pre-sentence detention to be deducted from the sentence that I've imposed pursuant to s 18 of the Sentencing Act is 357 days. Pursuant to s 6AAA of the Sentencing Act, I indicate that, but for your plea of guilty, I would've sentenced to you to a period of imprisonment of five years and four months with a minimum of three years and 10 months. Now, were there some other ancillary orders?
59MS ELLIS: Yes, Your Honour. There was a disposal and forfeiture order.
60HIS HONOUR: No objection to those?
61MR JAKOBSON: No, Your Honour.
62HIS HONOUR: Right, I'll make those orders. And no other orders required?
63MS ELLIS: No, Your Honour.
64MR JAKOBSON: No.
65HIS HONOUR: All right. Those are the matters. Did you want to stay on the line for a little bit, Mr Jakobson, to talk to - - -
66
MR JAKOBSON: Yes, I'll have a discussion with Mr Johnston if possible,
Your Honour.
67HIS HONOUR: All right, thank you. Perhaps if we now adjourn the court.
68MS ELLIS: As Your Honour pleases.
69HIS HONOUR: Adjourn the court.
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