Director of Public Prosecutions v Johnstone

[2018] VCC 636

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01780

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAIDEN NICHOLAS JOHNSTONE

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 May 2018
CASE MAY BE CITED AS:	DPP v Johnstone
MEDIUM NEUTRAL CITATION:	[2018] VCC 636

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Holmes
For the Accused	Mr M. Cookson

HER HONOUR:

1Kaiden Nicholas Johnstone, you have pleaded guilty before me to one charge of aggravated burglary, one charge of common law assault and one charge of false imprisonment.  You have also admitted a prior criminal history.

2The facts underlying your offending are as follows.  The victims in this matter, Benjamin and Sonny Jeremiah, lived at a residential rural property at
60 Weeroona Road, Langwarrin.  Their father operates a mechanics business from that address.

3At the time of the offending Mr Trevor Jeremiah was overseas and a man named Robert Thomas, an employee of Mr Trevor Jeremiah's business, was keeping an eye on the property.  On the evening of 6 April 2016 your co-offender, Cameron Blum, attended in the company of other persons, not including you, to buy a car from Thomas which was a white 2008 Ford Falcon sedan.

4Blum purchased this and is named as the transferee on the VicRoads application.  On 7 April 2016 Thomas received a call to his mobile phone at about 5.26 in the morning, the caller leaving a voicemail message saying that, "I know the car is stolen.  You are dead, you dog", and Mr Thomas later identified the male caller as Blum.

5At about 5.50 am on 7 April 2016 you, Blum and other unknown male co-offenders drove to the premises and entered the house at which time you were all in the possession of a handgun.  Your actions in so doing underline Charge 1, aggravated burglary.

6Benjamin Jeremiah was in his bedroom when you entered his bedroom, barging through the door, ripped a poster from the wall, threw furniture around and demanded that Benjamin Jeremiah remove his blanket and kicked him in the mouth while he was still in bed, Mr Benjamin suffering swelling and laceration to his lower lip on the right hand side as a result.

7These actions underlie Charge 2 on the indictment, common law assault.  Blum went to the bedroom of Sonny Jeremiah and woke him up, telling him to put his pants on and then led Sonny to Benjamin Jeremiah's bedroom where both brothers were interrogated by you and your co-offenders, you holding a gun at this stage.

8The Jeremiah brothers were asked where Thomas was and where the valuables were kept and the men went around the house looking for the valuables.  After about two minutes you, Blum and the other co-offender then took the Jeremiah brothers to the backyard towards a shed which was locked.

9One of you asked to open it but it could not be done.  Blum got into the shed by climbing a ladder into one of the back rooms at which time you and Blum were asking the Jeremiah brothers about guns, saying they wanted a gun as collateral.

10Blum then said that Thomas had sold him a car for $5000 which he believed was stolen and you and Blum and the other co-offender looked around the shed demanding the two complainants open the gun safe they had located, but the Jeremiah brothers said they did not know the combination.

11Using keys you had taken from inside the house earlier the three of you then opened a separate key locked ammunition cupboard and took ammunition.

12At this time the Jeremiah brothers were sitting down while you and your co-offenders were in the shed for about half an hour and then they were taken out into the backyard again.

13Another co-offender removed a compound bow from the shed and told the others he was leaving and walked down the driveway.  Blum was talking to the two brothers about the scuba gear in the shed saying he could have been friends with them because he likes scuba diving and then the Jeremiah brothers were walked back to the shed.

14At one point Blum demanded that Sonny Jeremiah called Thomas, giving Sonny Jeremiah the phone he had taken from him earlier but Sonny Jeremiah did not know Thomas' number so Blum found Thomas on Facebook and had Sonny Jeremiah send a message to him, but Thomas did not reply at this time.

15The two of you made Sonny Jeremiah call Thomas at about 8.45 am but Sonny Jeremiah hung up before speaking to Thomas as you were mouthing what you wanted Sonny Jeremiah to say but he could not understand you.  Blum, Sonny and Benjamin Jeremiah then walked into the work shop and called Thomas again where Blum and Thomas spoke on a loud speaker about the proposed stolen vehicle.

16While in the workshop Blum took the bullet out of the gun and handed it to the two complainants and then asked Sonny Jeremiah to message Thomas again and ask what his address was.  Thomas repeatedly said that it was on the VicRoads paperwork.  The two of you went outside to the sedan that had been sold by Thomas to Blum and got the VicRoads transfer of registration paperwork, showing Thomas' address in Edithvale.

17At this time Blum also noticed the inside of the car was yellow.  Blum apologised and gave the keys back he had taken from the house and you walked the two brothers back to the house taking them to Sonny Jeremiah's bedroom.

18They were in the room with you for about an hour while Blum was outside, and then he came in and got you, you all went outside and the two of you were apologetic but told the complainants not to call police or they would come back even if it took 20 years.

19The entire incident occurred over about three hours.  I notice that each of the Jeremiah brothers in their statements to police stated that they did not feel particularly afraid of either you or Cameron Blum which I must say is understandable in the circumstances.

20There were text exchanges between Thomas and Blum, basically from Thomas saying the car was not stolen, an argument about the VIN numbers, the colour of the car, Thomas saying, "Look, mate, the car is not stolen", and then eventually the conversation ended about 9.09 am.

21Later in the day Sonny Jeremiah telephoned his father who was on holiday in Cambodia.  He called a friend who attended the premises and called police, although neither brother was particularly interested in calling police at that stage, saying they wanted to have a sleep first.

22Police attended the premises at about 7.05 pm on 7 April 2016.  You were interviewed by police on 11 June where you made a "no comment" record of interview, declined at that stage to take part in an identification parade and were thereafter at large until you were picked up by police in January 2017 and have remained in custody ever since.

23The maximum penalty for aggravated burglary is 25 years' imprisonment.  The maximum penalty for common law assault is five years' imprisonment or 600 penalty units, and the maximum penalty for false imprisonment is five years' imprisonment or 1200 penalty units.  You have been in custody since 3 January 2017.  You have 490 days of pre-sentence detention including today.

24I now turn to your personal circumstances.  You are 22 years of age and were 20 at the time of this offending.  You are the only child of your parents who separated when you were about six months old and you went on to live with your mother.

25The separation between your parents was amicable and both have re-partnered successfully and each had a further child so you have two half siblings, one on either side of your family.  You apparently had a difficult childhood, were described as always angry and there were some interventions at an early stage in your life.

26You lived with your mother until you were 13 and then moved to live with a cousin for two years.  You left school when you were 15, having completed Year 9, thereafter taking up a concreting apprenticeship at the firm where your father worked as financial manager.

27You began smoking cannabis at about 13 and moved onto ecstasy and speed but eventually, when you had left school and were working, you started using ice and your ice habit got to such an extent you became unreliable at work and it got to the point that your father in fact had to fire you.

28You had been living with your father at this stage but on the discovery of your ice habit he ordered that you leave home.  Thereafter you resided in boarding houses, your ice habit continued and possibly accelerated and in the course of this period of your life you made a number of undesirable acquaintances.

29You have some prior criminal history although notably you have never been dealt with by way of conviction.  In 2011 you were placed on a good behaviour bond without conviction at the Ringwood Children's Court for theft from a shop, going equipped to steal and theft.  In 2014 again the Ringwood Magistrates' Court placed you on a non-conviction good behaviour bond for charges of unlawful assault, behaving in an offensive manner in a public place and wilfully hindering an officer on duty.

30In 2014 you were placed on a non-conviction community corrections order for 12 months on charges of recklessly causing injury and failing to answer bail.  The offending behind each court appearance was explained to me and they were minor instances of offending and it was understandable that the courts responded in the way that they did.

31Your co-offender in this matter, Cameron Blum, was about three years older than you, had been to gaol on five previous occasions and had a far more serious prior criminal history.  He pleaded guilty and was ultimately sentenced by Her Honour Judge Patrick to a term of imprisonment of four years and nine months with a minimum term of three years' imprisonment.  It is conceded that he took the leading role and was the organiser of the offending that occurred on 6 April 2016.  Prior to being arrested in January of 2017 you had returned to study and completed your VCAL.

32Whilst in gaol you have always worked or held a role as a billet.  You have undertaken a drug and alcohol course and you have undertaken as many courses as you possibly could whilst held in custody at Marngoneet, Harold Hopkins and then Port Phillip Prison.

33Your father remains supportive of you.  It is your intention to return to live with him and it is your hope that you can undertake a music production course at the Victorian College of the Arts.

34There was some mention by your counsel that you may well have been suffering during your youth with attention deficit hyperactivity disorder, ADHD, which was not attended to.  During the plea hearing you indicated that one of the attractions for you with methylamphetamine use was that it allowed you to concentrate and this can be an indication of ADHD disorder and it is something that needs looking into.

35You did not enter a plea of guilty in this matter.  A contested committal was conducted and a pre-trial argument was mounted by your counsel in relation to the identification via photo board of you by the two Jeremiah brothers which was not successful.  I do accept, however, that the defence that you did run was a narrow defence based primarily on identification.

36So whilst it could not be said you have entered a plea of guilty in the circumstances in my view you are entitled to the utilitarian benefit of having entered a plea.  Your entering of a plea of guilty has saved the community the time and expense of a trial and of the Jeremiah brothers having to attend court and giving evidence and being cross-examined in addition to that cross-examination they faced at committal.

37You are still a relatively young man.  You have good family support.  Your prior criminal history is minor and this offending certainly represents a considerable escalation.  However, at the time you were in the grip of methylamphetamine use and I am assuming that to some extent you dealt with that methylamphetamine use before being picked up by police in early 2017, as otherwise I doubt that you had been able to complete VCAL in the way you did.

38You have a good qualification under your belt now.  You have the protective factor of the support of your father and I am satisfied that you have, particularly given the way you have conducted yourself in gaol, reasonably good prospects of rehabilitation.

39Taking into account therefore your plea of guilty, your youth, your lack of serious prior convictions and your reasonable rehabilitative prospects I am satisfied that it is appropriate that I deal with you by way of a combination sentence, that is a term of imprisonment to be immediately served combined with a community corrections order.

40You have been assessed by Community Corrections as suitable for such an order and so I propose to deal with you in that way.  Could you stand up please?  I am going to give an aggregate sentence in relation to the charges because they all arise from the one instance of offending.

41The aggregate sentence will be a sentence of 490 days imprisonment.  I declare that 490 days of imprisonment have already been served by way of pre-sentence detention and you are then to be released on a community corrections order which I can only do with your consent so I need to outline to you the bases on which the conditions attached to the order.

42The first is that you must upon release report to the Community Corrections office within two working days of the making of this order, that is by Wednesday of this week.  The order will last for two and a half years.  Whilst you are on the order you must not commit any offence punishable by imprisonment.

43That does not mean if you commit an offence and do not get gaol you are home free, it means that if you commit an offence for which you theoretically could be gaoled like knocking off a box of matches from Woolworths.  That will be a breach.  If you breach you will be brought back in front of me and I will re-sentence you on this offending and you can confidently expect it would be gaol.

44If you fail to abide by the conditions of the order you can be breached.  You must report any change of address or employment to the Office of Corrections within 48 hours of the making of that change.  You must not attend upon the Corrections office under the influence of drugs or alcohol.

45You may not leave Victoria without the permission of the Community Corrections Office.  You must report to and receive visits from the Community Corrections Office and you must obey all lawful directions of the Community Corrections Office.

46I am going to order that you undertake 250 hours of unpaid community work.  You are to attend for treatment and rehabilitation which will involve assessment and treatment for drug use.  You are also to be under supervision.  You must also attend for mental health assessment and treatment and for offending behaviour programs designed to reduce re-offending.

47I make the comment that in my view it is important that you are assessed and treated for ADHD.  It is going to be difficult for you to keep on studying if you are still dealing with that.  I am also going to order judicial monitoring.  I will see you in two months' time, 2 July at 9.30.  I can order it by video.  Whereabouts do you live?

48OFFENDER:  In Narre Warren.

49HER HONOUR:  Narre Warren?  Which would be the Community Corrections office that he attends?

50MR COOKSON:  Dandenong, as I understand it, would be the closest, yes.

51HER HONOUR:  The closest?  It is a bit of a hike in.  I will order that you can appear on video from the Corrections office.  I need you to understand this really clearly.  I say this to all young blokes who go on community corrections orders, particularly when they have been inside for a fair while and they have got big plans when they get out.

52You may find that you have got employment or are undertaking a course which makes fulfilling the conditions of the community corrections order a nuisance.  Do not make the mistake of ignoring the obligations under the Community Corrections Order.

53When I see you in two months' time there will be a report from Corrections about how you are going and I want to make sure you are doing all right.  So I say this to everyone.  There is you, there is gaol, there is the community corrections order.  It is the only thing that is keeping you out of gaol at this time.  Got it?

54So make sure you absolutely attend to it.  If you cannot get to appointments make sure you have got a good reason or it will be said to be an unacceptable absence.  Too many of them and you will be breached and you do not want to be breached on this.

55The other thing you need to understand is this; I take it you have not enjoyed gaol very much?

56OFFENDER:  No, Your Honour.

57HER HONOUR:  No?  You have now got a prior from the County Court.  You have got an aggravated burglary on your prior sheet.  That is serious.  That is going to be sitting there every time you go to a court again if you ever do.  It makes it very hard for a court to do anything other than gaol you because you have now been given two CCOs.

58So you need to really attend to your drug use.  You have done well in gaol clearly but you have done it within a really strong structure where people are telling you what to do.  It is much harder when you get out.  You are going to run into old mates.  One of the first things you have to do is you are going to give away the drug use is you are going to have to give away the old mates.  They all have to go.

59If you start knocking around again your chances of lapsing back into drug use are high.  If you lapse back into drug use what do you think you will do?

60OFFENDER:  Re-offend.

61HER HONOUR:  Yes, so the mates have to go.

62OFFENDER:  Yes, Your Honour.

63HER HONOUR:  Have you got that?

64OFFENDER:  Yes.

65HER HONOUR:  Have you got a few mates hanging around Narre Warren like that?

66OFFENDER:  No, no friends around that area, Your Honour.

67HER HONOUR:  Excellent, good.  You can start all over again, but just remember you are not out of the woods yet, you have got another two and a half years to go.  I will be keeping an eye on you at regular intervals so no matter how difficult you find this order - you might have case managers changed on you every ten minutes which sometimes happens on a CCO - it can be annoying, it can get in the way of other things.

68You might think, "It is really important if I am to stay out of trouble that I get a qualification.  Surely that is more important than my CCO?"  At the moment nothing is more important than your CCO.  Have you got that?

69OFFENDER:  Yes, Your Honour.

70HER HONOUR:  Good.  Are you prepared to enter this order?

71OFFENDER:  Yes, Your Honour.

72HER HONOUR:  We will print it out for you.  Have a seat, thank you.  Because the order is over two years I have to do a s.6AAA declaration.  Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to three and a half years imprisonment and order that you serve a minimum term of two and a half years.  Thank you.

73MS HOLMES:  As the court pleases.

74MR COOKSON:  As Your Honour pleases.

75HER HONOUR:  We will just prepare the paperwork.  I am also ordering that the treatment and rehabilitation hours can count towards your community work.  It is just really important, a young bloke like you, you need to get over this drug use.  Look where it has got you and you do not want to be back in that place again.

76Stand up.  Tell me how you feel about ice at the moment?

77OFFENDER:  I don't like it at all.

78HER HONOUR:  Why not?

79OFFENDER:  Because it just puts you in a bad situation with bad people, bad results.

80HER HONOUR:  How did it make you feel in the end?

81OFFENDER:  While I was on it or afterwards?

82HER HONOUR:  Afterwards.

83OFFENDER:  Not very good.

84HER HONOUR:  The come down is bad?

85OFFENDER:  Well, yes and no, it just depends.  It depends on the environment you're in when you're on it I guess.

86HER HONOUR:  Yes, sometimes I get people who have been using ice for a while and they were needing more to get the same high and the lows were lower.  Was that happening to you?

87OFFENDER:  Sometimes.

88HER HONOUR:  Not really though?

89OFFENDER:  No.

90HER HONOUR:  I can tell you ultimately you will be using a huge amount of that drug to get anywhere near the high you were getting before and you will have these days of black depression when you come down afterwards.  Maybe it is one of the problems because you have got the - it sounds like you have got the ADHD problem - ice is going to agree with you more than it will with other people.

91In the end though it is just a terrible drug.  People who use it end up behaving in a ridiculous and irrational fashion that you two were.  Were you a bit high that night?

92OFFENDER:  Yeah, I was on a 30 day bender I think, hanging around.

93HER HONOUR:  How long had you been awake?

94OFFENDER:  I probably had 24 hours sleep in 30 days or something.

95HER HONOUR:  Yes, it is just stupid.  You are just going to behave like an idiot and you did and as I said you ended up with 16 months in gaol, no fun for anyone.  So you need to have a real think about it, but when you are out, as I have said, it is different, you have not got that strong structure of gaol even though the structure of gaol is terrifying and horrible, it is nevertheless there.

96You are going to have what is called triggers.  There are going to be times you are going to really want to use so you really need to attend to your drug and alcohol as much as you can and I will use your judicial monitorings to make sure that you are receiving the right treatment.  Have a seat, thank you.

97Have you got anything you want to say, Mr Johnstone?  Enough?  It is great having sons, isn't it?  Far too many of them at this age group, I'm afraid,
Mr Johnstone.  It is a shame your boy is one of them but you have got a good chance of coming out of this, Mr Johnstone, don't blow it.

98OFFENDER:  Yes, Your Honour.

99HER HONOUR:  Get your work hours out of the way as soon as you can but I will be keeping an eye on you.  Thank you very much.  Just remember there is two ways that you can breach the order, re-offending and not turning up for your order, not doing what you are meant to on the order.  We will get you to sign that, thank you very much.

100MR COOKSON:  May I assist, Your Honour?

101HER HONOUR:  Of course, thank you.

102MR COOKSON:  Thank you, Your Honour.

103HER HONOUR:  Thank you.  So you know you have got to report to Corrections by Wednesday?

104OFFENDER:  Yes, Your Honour.

105HER HONOUR:  In Dandenong apparently, thank you.  Good luck,
Mr Johnstone, just make this the end of your criminal career.

106OFFENDER:  Yes, Your Honour.

107HER HONOUR:  You are done.  I don't think you're made for being a gun crook either, I think there's other things that you need to have a look at as a life career.  Good luck, we will see you in a couple of months.  Thank you very much.

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