Director of Public Prosecutions v Johnstone

[2017] VCC 552

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00110

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEESA MARIE JOHNSTONE

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2017
DATE OF SENTENCE:	9 May 2017
CASE MAY BE CITED AS:	DPP v Johnstone
MEDIUM NEUTRAL CITATION:	[2016] VCC 552

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Mr M. Roper	OPP
For the Accused	Mr A. Patton	Tyler Tipping Woods

HIS HONOUR:

1       Leesa Johnstone, you have pleaded guilty to one charge of theft, one charge of attempted armed robbery and one charge of aggravated burglary.  You have also pleaded guilty to one related summary charge of assault with a weapon. 

2       The maximum penalties for these offences are as follows - theft, ten years' imprisonment; attempted armed robbery, 20 years' imprisonment; aggravated burglary, 25 years' imprisonment; and assault with a weapon, 15 penalty units or three months' imprisonment.

3       I have heard a summary of the offending.  It is not my intention to repeat the whole summary.  It has been tendered as Exhibit A in the plea proceedings.

4       Briefly, at approximately 1.30 pm on 15 November 2016, you were playing the pokies at the Cardinia Club in Racecourse Road, Pakenham.  At one stage, you sat next to the first victim, who was also playing the machines.  After a few minutes, you picked up her handbag and walked out the back entrance of the venue.  This behaviour constitutes Charge 1 on the indictment.

5       The victim chased you and eventually caught up with you as you tried to escape over a fence.  She pulled you down from the fence and then, whilst you were armed with a syringe, you threatened to stab her and those around her.  This behaviour constitutes the related summary offence of assault with a weapon.

6       You continued on your way until you were caught by a witness who grabbed you and brought you to the ground.  He stepped on your arm to prevent you using the syringe in any way.  The victim of the theft then retrieved her handbag and began thanking those who had assisted her.  As this was happening, you ran across the road to the Racecourse Road Fish and Chip Shop, still holding the syringe in your hand.  You demanded the store owner give you money from the till.  He refused and you attempted to take the till yourself, brandishing the syringe at the owner.  As the owner attempted to remove you from the store, you tried to take a coin donation tin from the counter, still in possession of the syringe.  This conduct is the subject of Charge 2 on the indictment.  

7       You left the store and jumped the back fence of the shop, walked a few metres and climbed a fence into the backyard of a house.  You entered the house via an unlocked laundry door.  The victim was at home and she confronted you in the kitchen.  You demanded money from her whilst holding the syringe above your head.  You took a handbag from the victim’s bedroom, emptied the contents, took a Samsung mobile phone and walked into the backyard.  The victim followed you and asked for her phone back, which you gave her.  This offending constitutes Charge 3 on the indictment.  In the meantime, the police had been called and attended at the house of the victim.  However, by the time they arrived, you were unable to be located.

8       You were arrested and interviewed on 18 November 2016.  You were crying and upset during your time in police custody.  You admitted that you had smoked the drug ice prior to committing the offences.  You were unable to offer an explanation for the offences, other than to say that you were drug affected.  You have been on remand since this time.

9       Ms Johnstone, this is very serious offending, made more so by the fact that there are three victims, all of whom were confronted by you when you were armed with a syringe.

10      First, you stole the handbag from one victim and, when she endeavoured to retrieve it, you threatened her with a syringe.  That victim has provided a statement in which she details the harm she has suffered as a consequence of your criminal behaviour.  She suffers flashbacks, has trouble sleeping and generally feels withdrawn and unsafe.

11      The offending then escalated.  You used the syringe in your possession in an attempted armed robbery on a fish and chip shop.  A short time later, you entered the home of the final victim and confronted her with the syringe and demanded money.  You searched her handbag and took her mobile phone.  Although the victims in Charges 2 and 3 have not provided victim impact statements, I am satisfied that they must have been extremely frightened by your behaviour and that they must have, at the very least, suffered distress as a result.  

12      With offending of this type, general deterrence is the paramount sentencing consideration.  Denunciation and just punishment are also relevant.

13      You have prior convictions.  In 2014, you appeared in the Latrobe Valley Magistrates’ Court for a charge of possess heroin.  You were placed on a good behaviour bond with a condition to engage in drug and alcohol counselling.  In March 2016, you again appeared in the Latrobe Valley Court.  You were convicted and placed on a six month work only community corrections order for offences of theft, shop theft, fail to answer bail and possess controlled weapon.  Your counsel advised me that you breached that order by failing to complete the community work.  

14      I now move to matters relevant to your background and matters in mitigation of penalty.

15      You have had a difficult life.  The disadvantage that you suffered in your formative years is a matter that mitigates sentence.

16      Your parents separated when you were an infant and you had little contact with your father until your early teenage years.  You were the victim of violence at the hands of some of your mother’s partners and, at the age of 14, you were placed in the care of the Department of Human Services.  You had a number of foster placements from which you kept absconding with the hope of returning to your mother’s care.

17      You had your first child when you were 16 and this effectively led to the end of your education.  You have two other children to the father of the first child.  That relationship ended in 2013.  You were treated violently by your partner.  He introduced you to the drug speed, and within a short time, you had graduated to the use of heroin.  None of your children are in your care.  In these circumstances, I accept that it is likely, as your counsel maintained, that you have been diagnosed with depression and anxiety in the past.

18      In mid-2014, you entered into a second relationship.  I was told that violence and drug abuse were also a feature of that relationship.  At the start of 2015, you ceased using heroin and replaced it with methylamphetamine.  After receiving the community corrections order in March 2016, you did leave your abusive partner and move to Pakenham to live with your father.  You were living with him when these offences occurred.

19      All your offending is related to your abuse of drugs.  This explains the offending.  It does not excuse it.

20      You have entered an early plea of guilty to the offences.  In addition, the plea has relieved the victims from the trauma associated with giving evidence and also saved the community the cost and expense associated with a trial.  You will be given credit for all these matters.

21      I am satisfied that you are genuinely remorseful for your criminal behaviour.  The extent of your remorse is evident from your plea of guilty and your behaviour when interviewed by the police. 

22      It is to your credit that you have a limited criminal history and that you have no prior history for offences of violence.

23      You have never been in custody before and your counsel submitted that the period on remand has been a salutary lesson.  I was told by your counsel that whilst you have been in custody, you have been drug free and undertaken a number of courses.  In sentencing you, I take account of the fact that this will be your first sentence of imprisonment.

24      Upon your release from custody, you will return to live with your father who has indicated that he will support you, but only if you remain drug free. 

25      I am guarded about your prospects for rehabilitation.  You have been using drugs for many years.  You have not been successful in the past in addressing your dependency.  You will need strong support and supervision to remain drug free upon your release.  Should you be able to remain drug free, your prospects of rehabilitation would be greatly enhanced.

26      As far as the offending is concerned, I accept that it was opportunistic and poorly planned.  You did not endeavour to disguise yourself.  In relation to the charge of aggravated burglary, I give you credit for the fact that when the victim followed you outside the house and asked you to return the mobile phone, you did so.

27      In imposing sentence in this case, I am required to ensure compliance with the principle of totality.  That principle requires that the overall sentence reflect a just and appropriate measure of the total criminality involved.  

28      Your counsel submitted that a sentence of imprisonment combined with a community corrections order would be appropriate for this offending.  I cannot agree.  The offending is far too serious for such an order.

29      Ms Johnstone, can you please stand.

30      On Charge 1, convicted and sentenced to four months' imprisonment.

31      On Charge 2, sentenced to 18 months' imprisonment.

32      On Charge 3, sentenced to 27 months' imprisonment.

33      On the related summary offence, sentenced to be imprisoned for one month. 

34      I order two months of the sentence of Charge 1 and seven months of the sentence on Charge 2 be served cumulatively upon each other and upon the sentence imposed on Charge 3.

35      This makes a total effective sentence of three years' imprisonment.  I fix a minimum term of 18 months before you will be eligible for release on parole.  I declare 172 days pre-sentence detention.

36      Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective term of four and a half years, with a minimum of three years.

37 I make an order pursuant to s.464ZF of the Crimes Act 1958, that you provide a forensic sample, namely a buccal swab, to the authorities. I must warn you that if you do not cooperate in the taking of that sample, then reasonable force can be used to obtain the sample, and indeed, the sample taken can be a blood sample.

38      I make this order given the serious nature of the offending, the order is consented to and the order is in the interests of justice.

39      You can be seated there for the moment. Any other matters?  

40      MR PATTON:  No, Your Honour.

41      HIS HONOUR:  Thank you.  The prisoner can be removed.   

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