Johnstone v The Queen
[2010] VSCA 283
•28 October 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0742 |
| DWAYNE JOHNSTONE |
| v |
| THE QUEEN |
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JUDGES: | BUCHANAN and MANDIE JJA and ROSS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 October 2010 | |
DATE OF JUDGMENT: | 28 October 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 283 | |
JUDGMENT APPEALED FROM: | R v Dwayne Johnstone, Unreported 10 July 2009, County Court of Victoria (Judge Rozenes) | |
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CRIMINAL LAW – Sentence – Armed robbery – Effect of brain injury and depression on moral culpability – Parity – Totality having regard to an earlier sentence and breach of parole
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr L C Carter | C D Traill Lawyers |
| For the Respondent | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
The appellant and one Vhyharn Arumughasamy saw Jason Potter collect his winnings from gambling at Crown Casino. The pair followed Potter in order to rob him when he left the casino.
The appellant followed Potter on foot while his co-offender drove a car. The offenders co-ordinated their movements by mobile phones and met each other a short distance behind Mr Potter. Arumughasamy gave the appellant a knife, drove to a position further down the road and waited. The appellant approached Potter from behind and struck him on the head, knocking him to the ground. The appellant produced the knife and demanded Potter’s wallet.
The robbery yielded $31,075.
Subsequently police officers executed a search warrant at premises occupied by the appellant. The found 195.2 grams of cannabis and a wallet with documents bearing the names of Shaun and Dianne Galea, who said that their car had been broken into and a wallet containing $250, sunglasses and 15 compact discs had been stolen.
The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of armed robbery, one count of possession of a drug of dependence and one count of theft.
After a plea, the appellant was sentenced to be imprisoned to a term of three years and nine months on the count of armed robbery, for a term of two months on the count of possession of a drug of dependence and for a term of four months on the count of theft. The sentencing judge ordered that one month of the sentence on the count of possession of a drug of dependence and two months of the sentence on the count of theft be served cumulatively upon each other and upon the sentence imposed upon the count of armed robbery, producing a total effective sentence of four years’ imprisonment. It was ordered that the appellant serve a term of two years’ imprisonment before he was to be eligible for parole.
The appellant has been granted leave to appeal against the sentence.
The appellant is 34 years’ old. His parents separated before he was born and he was raised in a succession of boys’ homes from the age of eight years. He left school in year 10 and has held a variety of jobs. The appellant has a child from a previous relationship, but lost contact with his child.
The appellant began using cannabis at the age of 11 years and amphetamine at the age of 18 years. From time to time the appellant has used heroin, but apparently has not become addicted to it. At the time of the commission of these offences, the appellant was smoking ice daily and using cannabis. He also drank alcohol each weekend to the point of intoxication.
The appellant had 69 prior convictions from 19 court appearances, including convictions for assault, drug offences, driving offences, causing malicious damage, aggravated burglary and offences of dishonesty. The most recent convictions were for aggravated burglary and theft, for which the appellant received a sentence of three-and-a-half years’ imprisonment with a minimum term of two years’ imprisonment. The offences the subject matter of this appeal were committed within two months of the appellant’s release upon parole. Accordingly, the appellant was liable to serve the full parole period of the earlier sentence.
The appellant was assaulted in 2004 and sustained a fractured skull.
A report by a psychiatrist was tendered during the course of the plea. The psychiatrist said that as a consequence of the appellant’s brain injury, he suffered from epilepsy. He also suffered from hallucinations and depression. The psychiatrist said that the appellant was a man of limited intellect, whose mental condition contributed to the offending. The psychiatrist said that as a seasoned prisoner, he doubted that the appellant would experience any unusually onerous conditions while in prison. He expressed the opinion that the appellant was remorseful.
The grounds of appeal are as follows:
1.The learned sentencing judge erred in finding that the level of the appellant’s moral culpability was not reduced by reason of his brain injury and depression.
2.The sentence offends the principle of parity when compared with the sentence imposed on the co-accused Vhyharn Arumughasamy.
3.The learned sentencing judge erred by giving the appellant an inadequate discount for pleading guilty.
4. The sentence offends the principle of totality.
The sentencing judge said of the appellant’s mental condition:
I do propose to mitigate the harshness of your sentence taking into account your mental state, as described by Dr Walton. I am not satisfied that at the time of the offending you were suffering a condition that reduces your moral culpability, but I am satisfied that in your case, there should be some amelioration of the principles of general and specific deterrence for the reasons so adequately stated by Dr Walton.
Dr Walton, the psychiatrist, did say in his report:
The indications are that not only was Mr Johnstone likely afflicted by the consequences of previous brain injury but in all probability he was also depressed leading up to the incident. His seemingly impulsive involvement, without considering the consequences of his actions, is entirely typical of the poor judgement exhibited by the brain injured, and the erosion of that particular capacity would have been aggravated if there were any parallel depression … I am of the opinion that neuropsychiatric factors have made a contribution to this man’s misconduct … I believe that this man’s neurological and psychiatric problems made a contribution to his offending …
An apparently critical element in Dr Walton’s conclusion that the appellant’s mental condition contributed to the offending was his description of the appellant’s participation in the crime as ‘impulsive’. The sentencing judge said:
I do not accept that (the offence) was impulsive, although you may have been driven to it. There was opportunity for you to reflect and desist, you chose not to.
I think his Honour was correct. Assuming that the offenders first decided to rob Potter when they saw him collect his winnings, they displayed a degree of forethought in executing the robbery. They followed Potter for some time in the casino until he left. They co-ordinated their movements and arranged for a car to enable them to escape. The appellant had ample opportunity to reflect and to change his mind. Dr Walton bracketed impulsive involvement with an absence of consideration of the consequences but that conclusion could only have been speculative. His Honour’s description of the offence as ‘well planned and co-ordinated’ was accurate, even assuming that the planning did not commence until the offenders saw Potter in the casino. Counsel for the appellant submitted that the appellant acted impulsively in agreeing to join in the robbery. With respect, there was no evidence of impulsive agreement.
Pursuant to ground 2, counsel for the appellant submitted that the non-parole period fixed in respect of the appellant and his co-offender breached the principle of parity. His co-offender’s minimum term was one year’s imprisonment. Counsel pointed out that by the time he was sentenced, the appellant had spent 18 months in prison for which he received no credit by way of pre-sentence detention, and was thus to serve at least three-and-a-half years’ imprisonment.
The sentencing judge identified a number of circumstances to distinguish the position of the appellant from that of Arumughasamy. He said:
First, notwithstanding that it was a joint and planned offence, it was you (the appellant) who actually carried out the armed robbery. Second, you have some prior convictions for violence. Third, the offences were committed by you within a very short time of being released on parole and fourth, you do not obtain a discount for the undertaking to give evidence against the co-accused.
Counsel for the appellant sought to minimise these distinctions. He said that the co-offender’s offer to assist the prosecution came late and by that time the appellant had admitted robbing the victim, although he had not admitted the use of a knife. The co-offender’s statement against the appellant was self-serving in that it minimised the co-offender’s role in the offending, claiming the appellant had conceived and planned it, and that the co-offender had not received any of the proceeds. The co-offender had an even longer history of offending than the appellant, although those prior convictions did not include any offences of violence.
The significant part of the apparently disparate non-parole periods is to be explained by the appellant’s breach of parole. I think the proper periods to be compared are one year in the case of the co-offender and two years in the case of the offender. There were differences between the positions of the appellant and the co-offender, I am not prepared to say that his Honour’s assessment of the differences resulted in appellable error.
As to ground 3, the sentencing judge said that he gave credit to the appellant for his plea of guilty. The question is whether the sentence itself is manifestly excessive taking into account all the aggravating circumstances and the mitigating circumstances, including the plea of guilty.
Accordingly, I turn to the final ground of appeal.
Counsel for the appellant relied upon the fact that the appellant had been in custody continuously since December 2004 except for three months between 29 October 2007 and 31 January 2008. His earliest release date is July 2011. Counsel also relied upon the appellant’s extremely deprived upbringing, the diagnosis of attention deficit disorder, the acquired brain injury and the fact that when he committed the offences the appellant was desperate to return to Sydney where he had family support, but was unable to do so because of the requirement to serve parole in Victoria.
Apart from the present offences, the offending in respect of which the appellant was sentenced consisted of aggravated burglary and theft, for which a total effective sentence of three-and-a-half years’ imprisonment was imposed. Three men entered a milk bar late at night and violently overpowered the owner and two employees and stole large quantities of cigarettes and tobacco. The appellant drove one of the cars which took the stolen goods from the milk bar. It appears that the appellant was to be paid some $800 for helping the robbers, but was not complicit in the armed robbery or the false imprisonment.
Counsel for the appellant submitted that the sentence imposed upon the
appellant by the sentencing judge offended the principle of totality. I take the submission that the principle of totality had been infringed in the light of the earlier sentence for aggravated burglary and theft and the cancellation of parole to mean that his Honour should have imposed a sentence, which, when added to the sentence imposed for the earlier offences, properly reflected the gravity of the whole of the criminal conduct involved in all the offences.[1]
[1]Cf Mill v R (1988) 166 CLR 59.
Assuming that the principle of totality does apply in these circumstances, I do not consider that a period of incarceration of the order of a little more than six years is out of proportion to all of the crimes committed by the appellant and his breach of parole. I consider that the sentence imposed for this crime of armed robbery, particularly the non-parole period, was lenient and that the existence of the earlier sentence did not convert this sentence into one which was outside the exercise of a reasonable sentencing discretion.
Accordingly, I would dismiss the appeal.
MANDIE JA:
I agree.
ROSS AJA:
I also agree with Buchanan JA.
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