Director of Public Prosecutions v Johnston
[2020] VCC 2027
•10 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01962
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAKON JOHNSTON |
---
JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2020 | |
DATE OF SENTENCE: | 10 December 2020 | |
CASE MAY BE CITED AS: | DPP v Johnston | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2027 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Plea of guilty following sentence indication – one charge of persistent contravention of a Family Violence Intervention
Order – one charge of recklessly cause injury – related summary offence driving while disqualified- very good prospects of rehabilitation – offending at the lower end of the scale of gravity; circumstances of COVID-19 pandemic.Legislation Cited: Crimes Act 1958; Criminal Procedure Act 2009; Sentencing Act 1991.
Cases Cited: R v McLaughlin [2016] VSC 189.
Sentence: Total effective sentence of eight months and 14 days imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Siggins | Office of Public Prosecutions |
| For the Accused | Ms C. Lynch | Balmer & Associates |
HER HONOUR:
Introduction
Pleas of guilty and maximum penalties
1 On 30 November 2020 I heard an application by Deakon Johnston, pursuant to s.207 of the Criminal Procedure Act 2009 (Vic), for a sentence indication on the charges on this indictment. Previously, the case had been the subject of emergency case management in the context of the COVID-19 pandemic. A pre-condition to the making of an application for a sentence indication is the consent of the Director of Public Prosecutions,[1] which was given. Following the application, I indicated that, if Mr Johnston were to plead guilty to these charges, I would be unlikely to impose a sentence of imprisonment that commenced immediately.
[1]Criminal Procedure Act 2009 s208(2).
2
At the time of his application, Mr Johnston had already served a period of
271 days pre-sentence detention and I adopted the reasoning of
Justice T Forrest in the case of R v McLaughlin,[2] that the phrase, ‘A sentence of imprisonment that commences immediately,’ must be taken to carry with it the practical consequence that, upon sentencing, the person who has pleaded guilty will actually be imprisoned from the time of sentence and extending into the future. In that context, I indicated that, if
Mr Johnston were to enter pleas of guilty, I would not impose a term of imprisonment to be served immediately.
[2] [2016] VSC 189.
3 On 4 December 2020, Mr Johnston was arraigned and pleaded guilty. A plea in mitigation of sentence was then heard.
4 Deakon Johnston, you have pleaded guilty to one charge of persistent contravention of the Family Violence Intervention Order and one charge of recklessly causing injury. The charge of persistent contravention of the Family Violence Intervention Order carries a maximum penalty of five years imprisonment. The offence of recklessly causing injury carries a maximum penalty of five years imprisonment and you have pleaded guilty to a related summary charge of driving while disqualified which carries a maximum penalty of 240 penalty units or imprisonment for 2 years.
Circumstances of the offending
5 The Prosecution Opening was tendered on the Plea and it is attached to and forms part of these reasons. I will not repeat its every detail here.
6 In about June 2018, you met the victim through a mutual friend and started a relationship. The victim was, at the time, a client of WAYSS, a women’s outreach program, in the context of the breakdown of her previous relationship. This service arranged for the victim to take up residence at house in Frankston. It was a condition of her residence there, she was not permitted to have anyone else live in the address.
7 On 19 October 2018, approximately five months into the relationship, Victoria Police served a 'Safety Notice' on you, naming the victim as the complainant. The Safety Notice contained conditions that you were:
· Not to assault, harass, threaten or communicate with the complainant by any means;
· Not to attend upon or remain within five metres of the complainant; and, relevantly,
· Not to be within 200 meters of the address.
8
On 24 October 2018, Frankston Magistrates’ Court made an intervention order prohibiting you from going to, or remaining within, 200 metres of
the address in Frankston or any place where the victim lived or worked, committing family violence against the victim, or getting another person to do anything the respondent must not do under the order.
9 You attended court on the day the order was made. You were then served with the order and the conditions of the order were explained to you.
10 Between 1 December and 29 December 2019, you continued to reside at the address with the victim on occasions, in breach of the condition of the order.
11 On about Saturday, 29 December 2018, you were still at the victim’s property.
12 On the same day at approximately 5.40 pm, a witness by the name of
David Lennie was driving down the street when he observed
the victim’s car stopped in the middle of the street outside her house. The front passenger door was open and the victim was lying on the road next to the car.[3]
[3] Depositions 42-56.
13 As he drew closer, Mr Lennie saw you in the driver’s seat of the vehicle leaning over toward the victim.
14 Mr Lennie later described seeing you look up, see his car and then drive off, leaving the victim lying on the road. This goes to the related summary offence of driving while disqualified.
15 By this time, other residents of the street had come out to investigate, having heard yelling.
16 When these witnesses reached the victim, she was distraught. She told witnesses that she had been assaulted.
17 The victim was taken to Frankston Hospital by ambulance. While being treated, she told emergency workers that she had taken a large amount of prescription medication. She was intubated as a precaution.
18 Dr Ezra Limm examined the victim on 29 December 2018. She was found to have tenderness and bruising to her right cheekbone, with mild bruising around the eye and multiple small grazes on arms and forearms.
19 On 30 December 2018, Police spoke with the victim while she was still in hospital. She was discharged at approximately 4.00 pm that day.
20
The victim told Police that you had resided at her address from
1 December 2018 until 29 December 2018. This gives rise to Charge 1, persistent contravention of a Family Violence Intervention Order.
21 She also told police that, at the time of the incident witnessed by Mr Lennie, she had opened the passenger door of the car in an attempt to get out of the car, that you had your fingers in her mouth and was trying to pull her back into the car. This gives rise to Charge 2, recklessly causing injury.
22 The victim also stated that you were frequent drug users and that you had used ICE together.
Arrest and interview
23 On 30 December 2018, you were arrested by appointment at Frankston Police station. At the time, the victim’s house keys were found in your possession.
24 During your interview with the Police, you made admissions of knowing the full conditions of the intervention order and breaching the order by residing at the victim’s address.
25 You stated that on 29 December, you were trying to take the victim to hospital when she jumped out of the car, leaving her keys in it.
26 When asked about the victim’s mobile phone and registration papers in the safe, you stated the victim knew those items were in there and she had allowed them to be there.
27 When asked to describe the relationship between you and the victim, you said, 'I guess we were just head over heels in love with each other'.
Prior criminal history
28 You have admitted a prior criminal history. At 36 years old, you have only one prior conviction in adult court, in 2014 when you were dealt with for driving offences, and as such, it is only relevant to this sentence on the driving charge. You have no prior convictions for violence, much less family violence.
29 You have no subsequent charges.
30
You were arrested and remanded into custody on 30 December 2018. On
26 September 2019, you were granted bail on strict conditions. You were required to live in Bairnsdale at the home of family members and were completely prohibited from visiting Melbourne. You had to report to Police daily and were subject to a curfew condition that required you to be at your place of residence between 10 pm and 6 am, except if you were in the company of your mother or Linda or Jeff Richardson. There was one exception during a week where you were allowed to reside in Frankston. You consistently complied with these stringent conditions for 14 months.
Procedural history
31 Your case commenced in the summary stream at the Magistrates' Court. There were different charges before the court at that point. On 3 July 2019 at a contest mention in the summary stream, the Magistrate declined jurisdiction and uplifted your case into the committal stream. On 26 September 2019, your barrister conducted cross-examination of the complainant at a committal hearing. You were committed to stand trial in the Melbourne County Court. Negotiations continued. It is not in dispute that the indictment you ultimately pleaded guilty to contained charges that could reasonably, at the end of the day, have been dealt with in the Magistrates’ Court. It has been nearly 2 years since the events giving rise to the charges.
Nature and gravity of the offending
32 It is clear that that you were well aware that you were prohibited by law from going to the victim’s house from the time of the service of the intervention order. Despite the presence of that order, you continued to visit with and stay at the victim’s home. The Prosecution case is that you did this between 1 December 2018 and 29 December 2018. You persistently breached the order by being at the property during this period. While this conduct is repetitive and persisted over some nearly 4 weeks, I accept that, of offending in this category, your presence in the house during this period is an example of a persistent breach at the lower end of its kind.
33 You have also pleaded guilty to one charge of recklessly causing injury. The circumstances were, that you were attempting to take the victim to the hospital, she having taken, on her account, an overdose of medication. I accept that at the time you were, albeit, in an addled and imperfect state of mind, trying to assist the victim to get medical help, none of which of course makes it acceptable that you recklessly caused her injury in that process. However, I find your conduct to be on the lower end of the scale of gravity in the category.
34 In terms of your driving, you do have some relatively serious driving offences in the past which has occasioned your imprisonment, including driving while you were suspended.
Personal circumstances
35 You are now 37 years old. You are the eldest of three. When you were about nine your parents separated and you were raised by your father. He went on to have two further children with a new partner. You recall this relationship being strained and the household being an unhappy place.
36 You left school having nearly completed the end of year nine at Rowville Secondary College and got a job in a panel beating company. At 18 you started working as a sales representative for a range of telecommunications companies. You stayed in that industry for the next five years and by 24 you were working in a sales role in an internet company.
37 At that part of your life, you in a serious relationship with a woman who ultimately left Australia to pursue a career in the United States. You later had other relationships with women of some duration, but perhaps not as significant as this first.
38 At 26 you started working for your uncle in his shop fitting business. You were involved in building up part of the business that dealt with painting. After that company was sold, you performed a similar role in other painting businesses. Ultimately, you started your own painting business, but after about 18 months, the work overwhelmed you. At this time, you lost your accommodation and lived sometimes in your car. At the same time, you went before the court on the driving charges and spent three months in custody.
39 After your release, you became involved in another business venture working in kitchen spray-painting and this was operated out of a factory.
40 You met the victim in this case around 2018 and the relationship developed quickly. You flattered yourself that you could be of assistance in the context of her mental health issues, but in fact what happened was that the relationship spiralled downwards into circumstances of emotional dysfunction and drug abuse. Clearly, the relationship was a destructive one for both of you. I accept, however, that given your history of relationships in the past is unmarked by allegations of violence, that this relationship and its context was particularly difficult for you and does not indicate a more general propensity of violence towards female partners.
Impact on victims
41 No victim impact statement was tendered on the plea, however, I accept that the victim was, no doubt, frightened by the event at the car and that she did sustain minor injuries and I take that into account.
Matters in mitigation
Plea of guilty
42 You have entered pleas of guilty in the circumstances of the COVID-19 pandemic and in circumstances where the prosecution case did face some difficulty. Any plea of guilty will be recognised on sentence and yours particularly so. Your plea of guilty saves the complainant from the distress of being cross-examined in court for a second time and offers her some vindication and hopefully some additional chance of recovery.
43 I accept that your plea contains within it an aspect of remorse. Moreover, you have engaged in psychological treatment which does suggest you are prepared to accept responsibility for your conduct and you have sought to address its causes.
Delay
44 As I have already said, your case was originally in the summary jurisdiction of the Magistrates’ Court and ultimately resolved to a version of facts and charges that could easily have been finalised in that court. On 25 March 2019, a bail application was heard and the Prosecution resisted that application. Bail was refused. There was nothing that you did in the conduct of your case to extend its duration. Originally, your trial was set down for hearing. That date was vacated during the public health crisis and a further date was quite uncertain. There is a significant backlog of trials at the moment. I accept that you made very early attempts to resolve the case on terms not particularly different to those before the court today. In this timeframe you have served 271 days in custody and then a further 14 months complying with very strict bail conditions.
45 During your period in custody you missed your brother’s wedding and your mother’s 60th birthday. Your dog had to be euthanised during this period.
46 After your release on bail, your barrister submitted that the complainant contacted you and I understand you did not engage with her.
Psychological material
47 You were not required to attend for mental health treatment but nevertheless did so. After you were released on bail, you attended at Carol-Anne Opperman, a psychologist in Bairnsdale, and her letter confirms you participated in regular treatment with her. She notes your diagnosis of depression and anxiety and your suffering from panic attacks. She has assisted you with emotional regulation. She notes that you told her that you have been using ‘ice’ for about 15 months before your imprisonment. All this is context for your offending. No particular Verdins submission was relied upon.
Prospects of rehabilitation
Family support
48 You are part of a large family, several of whom have taken a large role in supporting you since you were released and who have written affectionate references about you. In particular, they speak of your determination to improve yourself since being released on bail, how you have occupied yourself usefully and gratefully during this period and that you have been polite and respectful to those around you who have offered you help.
Work history
49 You have a significant work history and clearly have capacity to create and take up work opportunities, work hard and get along with people. In addition to this, you have sought out your own counselling and mental health guidance and I find that your prospects of rehabilitation are very good.
Relevant sentencing principles
50 I must impose just punishment and denounce your offending, but specific and general deterrence are the most important sentencing considerations in cases that involve violence against a domestic partner. I must sentence you in a way that deters other people from breaching family violence orders and committing similar conduct. It is simply not acceptable, in any circumstances, to ignore court orders made for the protection of another, in particular for your partner. If you are unable to conduct a relationship in a respectful and affectionate way, absent any kind of violence, it is upon you to remove yourself from that situation.
51 Given your lack of prior history and your prospects of rehabilitation, I regard the role for specific deterrence in this case to be very slight.
Regard to current sentencing practices
52 I am obliged to have had regard to current sentencing practices for similar offending and I have done so.
Time on bail
53 I have considered whether you should be subject to a Community Corrections Order as part of your sentence, however, I did not have you assessed for such an order because of the 14 months you spent on bail under rigorous conditions and during which time you substantially advanced, on your own terms and on your own initiative, your rehabilitation.
COVID-19
54 I have also taken into account the current circumstances surrounding the COVID-19 pandemic. Those circumstances have caused additional stress for prisoners and their families and also effected the programs and support available in prison.
Disposition
55 Now, Mr Johnston, I am going to tell you precisely the disposition. As you already know, it does not require you to serve any further term of imprisonment, but nevertheless, I have to give each charge a particular sentence.
56 On the charge of persistent contravention of a Family Violence Intervention Order, you are convicted and sentenced to six months imprisonment.
57 On the charge of recklessly causing injury, you are convicted and sentenced to four months imprisonment. On the related summary charge of driving while disqualified you are convicted and sentenced to one-month imprisonment.
58 I direct that two months of the sentence on Charge 2 and 14 days of the sentence on the summary charge be served cumulatively on one another and on the sentence on Charge 1, making a total effective sentence of eight months and 14 days imprisonment.
Pre-sentence detention
59 Pursuant to s.18 of the Sentencing Act 1991, I declare that you have served 271 days by way of presentence detention.
Section 6AAA reduction
60 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that, had you not pleaded guilty, I would have sentenced you to a period of 15 months imprisonment with a non-parole period of 12 months.
61 Counsel, I have made the orders such that Mr Johnston probably has a few days extra in terms of pre-sentence detention declared. I just wanted to make that clear that that was my intention. That is an eight-and-a-half-month sentence and I do not propose to impose any other orders.
Ancillary orders
62 There are no ancillary orders sought.
- - -
HER HONOUR: Have I understood that correctly, Mr Siggins?
MR SIGGINS: Yes, Your Honour.
HER HONOUR: All right, Mr Johnston, your barrister will no doubt explain the sentence to you, but for now I'd like to thank both counsel for the assistance in getting this case resolved and completed in difficult circumstances. We'll rise until 11.
MR SIGGINS: May it please the court.
MS LYNCH: As the court pleases.
- - -
0