Director of Public Prosecutions v Johnstone, Thorne Leonard Anthony

[2013] VCC 698

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

AT MELBOURNE

CRIMINAL DIVISION

CR-12-01310
CR-12-01311

DIRECTOR OF PUBLIC PROSECUTIONS

v

THORNE LEONARD ANTHONY JOHNSTONE

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JUDGE:	His Honour Judge Smallwood
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 May 2013
CASE MAY BE CITED AS:	DPP v Johnstone, Thorne Leonard Anthony
MEDIUM NEUTRAL CITATION:	[2013] VCC 698

REASONS FOR SENTENCE
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Subject:  
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Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr K.J. Doyle
For the Accused	Mr C.T. Carr

HIS HONOUR:

1       Thorne Leonard Johnstone, you have pleaded guilty to one count of recklessly causing serious injury.  You pleaded guilty to a settled presentment.  You made extensive admissions in your record of interview and they have been a significant factor in your ultimate plea.  Bearing in mind the nature of the complainant and how he would have performed as a Crown witness that utilitarian benefit is very significant.

2       Trials such as this, as I have indicated, occur frequently and you have avoided that.  The admissions and the plea of guilty are in circumstances where the Crown case was debatable adds to the remorse which I find you had.  You have just turned 22 years of age and were 20 years of age at the time of the offending.

3       The circumstances were and still are to an extent in dispute and I have given you obviously the benefit of the doubt in respect of all that.  What happened was that you went to the house of a Mr Frank Sloan in Moe.  You were living in a caravan.  When you arrived there you had a machete.  Whether you had a balaclava is I suspect anybody's guess.

4       When in any event you entered, you are not charged with aggravated burglary so there can be no suggestion that you entered as a trespasser or that you intended to use the machete upon your entry.  What happened after that is that you had a conversation with Mr Sloan.  You said that he attacked you.  He said that you attacked him.

5       There would appear to have been some fairly strange conduct where you handed him the machete and he had a look and gave it back to you and you were accusing him of being involved in an attack on your mother.  In any event a violent disputation took place.  You ultimately at least gained control of the machete and hit him with it.

6       The injuries sustained as a result of the machete were nine stiches in a laceration to his back, six stitches to a laceration to his head and two stitches to a laceration on his chin.  I note that the Crown summary includes that the complainant had bruising to the knuckles of both hands.  Your counsel's submission was that they came about by punching you and that may well be right.

7       In any event you have pleaded to what I am prepared to sentence you as, an excessive self defence.  General and specific deterrence must play a role in this as well as denunciation and appropriate punishment.  The history of it is important.  On 26 April of this year you were sentenced to be imprisoned for a period of four and a half years with a minimum of two years by Her Honour Justice King.  That was for an incitement to murder which had occurred some months after you were placed on bail for this matter.

8       An extensive plea was put before Her Honour and I have been given her sentencing remarks which are restricted and therefore I cannot go into them in detail, as well as a copy of the plea and the reports that were given to her.

9       Your background is an unfortunate one.  You were brought up in Gippsland and went to Year 10 at Warragul TAFE.  After leaving school you worked as a tree cutter and have had other jobs.  You have prior to your most recent incarceration been a bar tender at the Commercial Hotel in Warracknabeal where your family has resettled.  I have seen a reference from the proprietor of that hotel which speaks highly of you.

10      There are two psychiatric reports, one from a Dr Cidone and one from Dr Ong.  It would appear, though a lot of this seems to be self reporting, that you have been diagnosed with numerous disorders since your early childhood.  There has been suspicion of schizophrenia, your drug use may well have caused psychotic episodes and it is all a bit problematic.

11      What has occurred, and I think is very much the crux of this particular plea, is that despite all the difficulties, despite all the drug use that has occurred in the past, despite your prior convictions, though they are not in adult court, and this is indeed your first adult sentence, that when you went into custody for the incite to murder you found custody a very salutary experience.

12      You were ultimately released on bail.  The matters that are referred to by Justice King are in her sentencing remarks and anyone who has a genuine and lawful interest can see what she has spoken about.  The fact of the matter is that upon coming out of gaol as indicated you originally having done 231 days you relocated to Warracknabeal.

13      Tendered on your behalf as I have indicated the reference from the publican, as well as surprisingly a report from the local commander of the police station referring not only to your generally good behaviour, but your endeavours to potentially at least rehabilitate the youth of Warracknabeal.  You have work to go to when you are ultimately released, you have accommodation and I agree with Justice King that because of your conduct since this offending and your compliance with a CISP program that the prospects of your rehabilitation have improved dramatically.

14      I think if you are rehabilitated the risk of you re-offending would reduce considerably.  Her Honour, and I simply repeat this part of it because it is non-contentious, said when sentencing you for the last matter, "In determining the appropriate sentence I take into account your plea of guilty together with your undertaking, your youth, your much improved prospects of rehabilitation and the Verdins that applies to the offending in light of your mental health issues over the years which reduces your moral culpability, which must also be balanced with the seriousness of the offence obviously".

15      In regard to general and to a lesser degree specific deterrence, denunciation and imposition of an appropriate sentence she said, "I intend to impose a longer than normal parole period in light of your youth to encourage your rehabilitation within the community."  You have to get, as your counsel conceded, extra incarceration for this, but Her Honour has put into place what appears to me to be the totally correct circumstance where the community would be much better protected by your rehabilitation than by locking you up for a very long period of time.

16      Accordingly, balancing those matters, on the Charge you are sentenced to imprisonment for a period of two years.  I direct that one year of that two years be served cumulatively upon the sentence you are currently undergoing.  Because of the provisions of s.16 I need to impose a new minimum term.  Her Honour gave you a minimum term of 24 months and on my calculations you have served, give or take, 15 months and ten days.

17      In this situation I propose to increase the minimum term that you have ultimately served but not by a very significant degree.  Accordingly I direct that you serve a minimum term of 19 months commencing today.  I make no declaration.  That is three and ten days on the minimum on my calculation.

18      Pursuant to s.6AAA I say that but for your plea of guilty you would have been sentenced to imprisonment for a period of three years.  Bearing in mind I have not set a minimum term for this matter I cannot say what I would have done under s.6AAA because I do not know when the trial would have ended.  So for s.6AAA all I can say is what the head sentence would have been.

19      MR DOYLE:  Your Honour, we will be seeking a disposal order in respect of the machete.

20      HIS HONOUR:  You have already got 464?  If that is agreed to I will sign that in chambers.

21      MR CARR:  Can I just check that?  It is s.14.

22      MR DOYLE:  Just the balaclava and the machete, Your Honour.

23      MR CARR:  Thank you, Your Honour, that is by consent.

24      HIS HONOUR:  That can just be provided.  That is all I need to do.  That is three months and ten days extra on the minimum.

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