R v Johns - [2002] NSWCCA 185

No judgment structure available for this case.

CITATION: R v Johns [2002] NSWCCA 185

FILE NUMBER(S): CCA 60628/99

HEARING DATE(S): 15 May 2002

JUDGMENT DATE:
15 May 2002

PARTIES :

Regina v Colin John Johns

JUDGMENT OF: O'Keefe J at 37; Smart AJ at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/0190; 98/21/0191

LOWER COURT JUDICIAL
OFFICER : Nield DCJ

COUNSEL : (A) P Bodor QC
(C) R A Hulme

SOLICITORS: (A) Mark Rumore
(C) S E O'Connor

CATCHWORDS: Sentencing - No question of principle - adjustment of non-parole period

LEGISLATION CITED: Nil

CASES CITED:
Nil

DECISION: See para 35-36

IN THE COURT OF
CRIMINAL APPEAL
60628/99

O'KEEFE J

SMART AJ

Wednesday, 15 May 2002

REGINA v COLIN JOHN JOHNS

JUDGMENT

1. SMART AJ: The applicant, Colin John Johns, seeks leave to appeal against the asserted severity of sentences imposed in the District Court on 15 October 1999 in respect of sixteen offences on two indictments, taking a further eighteen offences into account. The effect of the sentences was imprisonment for nine years with a minimum term of six years commencing on 8 November 1997. The applicant pleaded guilty to the sixteen offences and admitted his guilt on the offences taken into account.

2. The offences, the subject of the two indictments, and the sentences of imprisonment imposed were as follows:

Fixed term of one year from 8 November 1997 to 7 November 1998.

Fixed term of eighteen months from 8 November 1997 to 7 May 1999

Count 2 ---at Fairfield - possess car breaking implements -
Fixed term of nine months from 8 November 1997 to 7 August 1998.

Indictment 1 of 26 July 1999

8 November 1997 at Minda Detention Centre Lidcombe.

Count 1 -- not pressed as Crown accepted pleas to other counts in full satisfaction of the
indictment.

Fixed term of eighteen months from 8 May 1999 to 7 November 2000.

Fixed term of twelve months from 8 May 1999 to 7 May 2000.

8 November 1997 at Bankstown Police Station.

Count 5 --- malicious damage to fittings in dock area at Bankstown Police Station -

Fixed term of nine months from 8 May 1999 to 7 February 2000.

Count 6 --- wilfully resist police -

Fixed term of nine months from 8 May 1999 to 7 February 2000.

9 November 1997 at Parramatta Local Court.

Fixed term of nine months from 8 November 2000 to 7 August 2001.

Count 8 --- assault justice -

13 November 1997 at Bankstown Local Court.

Count 10 --- malicious wounding of a senior constable and taking into account 17 offences on a Form 1 -

Minimum term of eighteen months from 8 May 2002 to 7 November 2003 and an additional term of three years from 8 November 2003 to 7 November 2006.

Count 11 --- assaulting court assistant -

Fixed term of nine months from 8 May 2002 to 7 February 2003.

Count 12 --- assaulting magistrate -

Fixed term of eighteen months from 8 May 2002 to 7 November 2003.

Count 13 --- assaulting a constable with intent to prevent lawful apprehension -

Fixed term of twelve months from 8 May 2002 to 7 May 2003.

3. In his remarks on sentence the judge has summarised the offences taken into account and I would adopt that summary. A copy of the list of offences taken into account on Count 10 is set out in the Schedule to these reasons.

4. The applicant contends that the judge failed to:

(1) properly assess the applicant's criminality against the background of his subjective case.

(2) give any or any adequate consideration to the applicant's young age.

(3) give any or any adequate consideration to remorse or progress in rehabilitation.

I will briefly outline the facts relating to each group of charges.

5. 3 November 1997 - Leichhardt and Fairfield:

About 1am the applicant and two offenders broke into a garage at Leichhardt and stole a substantial quantity of property from that garage. The property has been recovered.

About 2am they broke into a Commodore sedan parked in the street, the applicant smashing a side window. He forced the ignition of the vehicle and started it. The offenders drove off in it.

6. 8 November 1997 at Minda

About 2.30am the applicant was arrested by Leichhardt police. He gave a false name (Jason Matt) and informed police that he was a juvenile. As he would not supply fingerprints he was conveyed to Lidcombe Children's Court for a bail application. He was granted bail under his alias. He was conveyed to Minda Detention Centre where he was recognised.

A social worker told the applicant that he knew his real identity. The applicant threatened the social worker and stabbed him in the hand. The applicant kicked and punched a cell door causing it to break in half and fall off its hinges. He picked up pieces of wood and struck the social worker three times to the right forearm and twice to the left arm. He brandished a knife towards police and Minda staff and threatened them repeatedly. He damaged further property at Minda. After an extended confrontation he finally threw down the knife when State Protection Police arrived.

7. 8 November 1997 at Bankstown Police Station

While in the dock at Bankstown Police Station the applicant kicked and punched the surrounding perspex. When a senior constable attempted to talk to the applicant, he spat at the constable, hitting him on the shirt. The applicant urinated and defecated in the dock area. He refused to be fingerprinted and photographed.

8. 9 November 1997 - Parramatta Local Court

About 12.23pm the applicant appeared in court and sought bail. Shortly after 12.50pm the presiding Justice indicated that she was going to refuse bail and remand him to Bankstown Local Court on Monday 10 November 1997. He became agitated. He leapt over the dock and ran towards the bench. Some police officers tried to grab him but he ran towards the Justice. She pressed the alarm. The applicant jumped over the bench into the court officers' work area. He obtained a pair of scissors. His mother grabbed him. He threatened to stab a police officer. His mother again intervened and urged him to put the scissors down. Further police were summoned and eventually a police sergeant negotiated with him to hand over the scissors.

9. 13 November 1997 - Bankstown Court

After the magistrate refused bail, the applicant grabbed the microphone and stand from the dock area. He leapt over the end of the dock and ran behind the bench area. He got within an arm's reach of the magistrate and brandished the microphone. On being apprehended by a police officer the applicant struggled violently. He struck the officer three times on the right side of the head causing numerous lacerations.

The applicant struck and kicked another officer who went to the assistance of the first officer. The applicant threw the microphone at the court assistant, striking her in the back. The applicant was overpowered. As he was escorted from the court he again struggled violently and managed to arm himself with a pair of scissors. He attempted to stab the police. With the assistance of further police the applicant was eventually disarmed, subdued, returned to Bankstown Police Station and charged. The police officer who had been struck around the head required and received medical attention.

10. The applicant's record stretches back to April 1993 when he first appeared in the Children's Court charged with robbery with striking. Since then he has been convicted of offences of dishonesty, drug offences, assaults and malicious damage, resisting police and driving offences. He has had many convictions for assaulting police.

11. On 30 May 1997 he was sentenced to imprisonment for one year and ten months to commence on 2 April 1997 with a non-parole period of six months expiring on 1 October 1997. When released he did not complete the rehabilitation programme as intended.

12. The offences, the subject of the indictments, were committed within six weeks of the applicant's release on parole. The applicant's parole was revoked and he was required to serve the balance of his sentence, that is from 9 November 1997 to 12 February 1999.

13. The applicant was born on 14 June 1977 and was thus aged twenty at the time of the offences. In his evidence he said that he remembered very little of the offences because he was not in a proper state of mind. He was on drugs, mainly LSD and marijuana. On the day he was arrested he had taken 25 LSD doses while he was in the back of the police van before arriving at Minda. He accepted that his behaviour was disgraceful.

14. The applicant said that in the nearly two years he had been in prison (from November 1997 until sentencing) he had got off drugs and tried to pull his life together. He did not like being told what to do but he did what he was told, albeit reluctantly. He hoped to go back to technical college on his release. He planned to live with his mother. He said that he had been on no medication since June 1998. Prior to that he had been on medication. He said:

"I show great remorse for what I've done to my victims and their families and I'll be trying my best in the future to make sure it doesn't happen again."

15. He said that he had been on protection and wished to remain on protection so as to avoid becoming involved in gaol politics. He was apprehensive of the violence in the general part of the gaol.

16. The applicant’s personal history, which is set out in Dr Westmore’s report of September 1999, reveals significant areas of disadvantage. His father was abusive, used alcohol excessively and was violent to the sons in the family. His parents separated when he was ten or eleven. His mother cared for the four children initially, he being the youngest. He next lived with his sisters before living with his father for two years. He then returned to live with his mother.. His father was in gaol for a lengthy period many years ago. His mother was in gaol at one stage for supplying cannabis. This disturbed him and led to him getting into drugs heavily. He wondered what he had to live for.

17. The applicant was smoking cannabis from the age of eleven and taking amphetamines and LSD from the age of fifteen. He used up to ten to fifteen LSD trips a day. Over the years prior to arrest he said that he had taken cocaine and ecstasy.

18. The applicant said that he was a hectic kid and had ADD. He was educated to the end of primary school. He attended special schools because of his behavioural problems. He was aggressive. He has worked as a powder coater, a process worker and with McDonalds. He last worked some years ago (about 1994).

19. Dr Westmore commented that the police fact sheet suggested that when the applicant was initially detained he was “out of control”. Dr Westmore concluded:

Your client is a twenty two year old man who obviously has a number of difficulties, principally, substance abuse and personality qualities of an anti social type.

He comes from a background of abuse and deprivation, he was exposed to violence from his father when he was a boy, his parents separated in his early teenage years. Both mother and father appear to have had their own difficulties and probably did not provide particularly good role models for him. He moves between parents and other family members when he was a boy, he was an uncontrollable child who had early contact with the criminal justice system and he was placed in a number of juvenile facilities.

His illicit drug usage commenced when he was a young teenager and this pattern of drug use has continued through his teenage years and into his adult life.

From a psychiatric perspective the most significant intervention which might occur to assist this man reduce his reoffending risk would be for him to attend an extended drug rehabilitation program. A previous court has obviously had this in mind when it required him to attend a rehabilitation program but unfortunately that did not occur. While I think his belief that he is drug free now does have some positive qualities to it, I would also note that remaining drug free while in the community is a lot harder I think than he anticipates. He will need quite a supportive and highly structured program to be in place to enable him to remain drug free once he returns to the community.

He does appear to have some motivation at this time to get on with his life and he has identified some educational goals and he wants to help care for his mother. He is obviously motivated as well by a desire to impress the court but this may not be an inappropriate attitude in any case.

The real test for Mr Johns will come when he does return to the community and he will need to demonstrate a continued motivation to remain drug free. He has other difficulties, he has had limited education and quite a restricted work history. Again, he will need support and encouragement in these two important areas in his life if he is to cope with the stress of community living.

His anti social qualities are likely to diminish in their intensity in advancing years and maturity. Young people with the difficulties of Mr Johns usually have problems because they have impaired internal self control mechanisms. They often do respond to external controls and Mr Johns appears to have done this. External controls do not need to be in place indefinitely but greatly assist in structuring and ordering the disorganised lives some people have when they have problems with internal control mechanisms. It is for this reason that I am recommending some type of extended community supervision be again considered for Mr Johns. The mechanisms will need to be in place however to respond rapidly if he fails to comply with treatment requirements while in the community”

20. The judge also noted that the applicant had a disturbed background, a very disturbed upbringing and a limited education due to behavioural problems and that he had not been employed for five years prior to his arrest. The judge did not go into detail on any of these matters. The judge said he suspected that the applicant’s experimentation with and later addiction to prohibited drugs was the root cause of his criminal offending. There is a body of material to support that suspicion.

21. The judge reviewed the applicant’s criminal record and concluded he had learnt nothing from the various sentences imposed upon him. The judge also noted the aggravating features of the applicant being on parole when the offences were committed and shortly after his release on parole.

22. The judge took into account that the applicant had pleaded guilty at the earliest opportunity. Many of the offences were committed while in custody. The judge was not sure whether or not the applicant’s expression of contrition for the victims was genuine. He accepted that the effect of withdrawing from the ingestion of twenty five LSD tablets would have had a considerable effect on the applicant’s behaviour.

23. The judge was unsure whether the applicant will cease his criminal offending. He feared that his criminal offending would repeat itself after his release. The judge attached considerable weight to deterrence and particularly to specific deterrence. The applicant needed to realise that if he offended he would receive salutary punishment.

24. The judge found that there was but one special circumstance, namely, the applicant’s age and on that account reduced the non parole period to six years. The usual non parole period of three quarters would have resulted in a non-parole period of six years nine months.

25. This case has some unusual features. The bulk of the applicant’s offences were committed while he was in custody; whether at Minda, the police station or in court. His behaviour was quite bizarre. However, the offence on 26 October 1997 of taking a conveyance without consent (Form 1) and the offences on 3 November 1997 of break, enter and steal and stealing a car at Leichhardt and possessing car breaking implements at Fairfield were a return to his former ways.

26. The malicious wounding of the police officer was a serious offence as were many of the offences in Parramatta and Bankstown Courts. Even allowing for the applicant’s age stern punishment was required. It must not be overlooked that the sentences imposed by the judge ran concurrently with the balance of the non- parole period which the applicant was also required to serve.

27. The applicant relied on the principle of totality contending that the sentences in total were excessive for the criminality involved. I do not think that the sentences offend the principle of totality. Many of the more serious offences warranted longer sentences and the judge correctly made many of the sentences concurrent or partly concurrent. The judge appreciated, by the sentences imposed, that he was dealing with offences which fell into five distinct groups and that the sentences overall must not offend against the principle of totality.

28. I would not reduce the length of the fixed term sentences or the terms of imprisonment. There were, after all, on the indictments, five groups of offences many of which were serious and eighteen offences were taken into account. The only question which arises, in my view, is as to the non parole period. In my opinion this does not adequately reflect the applicant’s age and the rather unusual subjective features which left him ill prepared to cope.

29. The statement of Dr B Westmore that the most significant intervention to assist the applicant and reduce his re offending risk would be for him to attend an extended drug rehabilitation program has much merit. It is clear from the applicant’s past repeated offences that he will need extended support and supervision on his release from gaol. The wisdom of what Dr Westmore wrote is borne out by the subsequent convictions of the applicant in relation to offences committed on 20 March 2000 and 13 May 2000 while in gaol during the disturbances at Goulburn Gaol.

30. In respect of the offences on 20 March 2000 the applicant received a fixed term of imprisonment of nine months for maliciously inflicting grievous bodily harm to commence at the expiration of the sentence which the applicant was serving, namely, on 8 November 2003. He received other concurrent sentences. The court sentenced the applicant to a fixed term of imprisonment for twelve months for maliciously damaging and destroying property and a fixed term of six months for possessing offensive implements, both commencing on 5 February 2001.

31. The appeal against sentence for assaulting an officer during execution of duty for which a concurrent term of imprisonment of six months had been imposed on 5 February 2001 to commence on 8 November 2003 was dismissed.

32. It will be necessary for the parole authorities to look at the situation and determine whether the applicant’s first year of parole or some part of it should be spent in an extended drug rehabilitation program.

33. In all the circumstances the non parole period of six years was manifestly excessive. It should have been five years. Because of the accumulation of sentences a reduction of this order will result in the fixed term of one year on count nine running from 8 November 2001 to 7 November 2002; the fixed term of nine months on count eleven running from 8 February 2002 to 7 November 2002; the fixed term of eighteen months on count twelve running from 8 May 2001 to 7 November 2002 and the fixed term of twelve months on count thirteen running from 8 November 2001 to 7 November 2002.

34. Further, the sentence on count ten taking into account the seventeen offences on form one of four and a half years will commence on 8 May 2002 and expire on 7 November 2006 with a non parole period of six months starting on 8 May 2002 and expiring on 7 November 2002.

35. The applicant will have to remain in prison because of the subsequent sentences. The reduction of the non parole period to six moths follows because of the other sentences and to maintain overall a non parole period which is correct. I propose the following orders:

1. Leave to appeal against sentences granted

2. Appeal allowed in part

3. Dismiss the appeals on counts 1, 2, 3 and 4 of the indictment of 28 September 1999 and counts 2, 3, 4, 5, 6, 7 and 8 of the indictment of 26 July 1999

4. Vary the commencing and expiry dates of the fixed terms on counts 9, 11, 12 and 13 of the indictment of 26 July 1999 by deleting the existing dates and substituting:

Count 9 - A fixed term of 1 year commencing on 8 November 2001 and expiring on 7 November 2002

Count 11 - A fixed term of 9 months commencing on 8 February 2002 and expiring on 7 November 2002

Count 12 - A fixed term of 18 months commencing on 8 May 2001 and expiring on 7 November 2002

- A fixed term of 12 months commencing on 8 November 2001 and expiring on 7 November 2002

5. Quash the sentence imposed on count 10 and in lieu thereof (taking into account 17 offences on Form 1) the applicant is sentenced to imprisonment for 4½ years commencing on 8 May 2002 and expiring on 7 November 2006 with a non-parole period of 6 months commencing on 8 May 2002 and expiring on 7 November 2002.

6. Pursuant to s.59 of the Crimes (Sentencing Procedure) Act 1999 vary the commencing dates of these sentences imposed upon the applicant at Goulburn Local Court on 5 February 2001 as follows:

A fixed term of imprisonment of 6 months to commence on 8 November 2002 (appeal dismissed by District Court at Goulburn on 26 March 2001)

(b) Assault officer during execution of duty (2 counts) –

Fixed term of imprisonment of 9 months to commence on 8 November 2002.

36. It is noted that the remainder of the sentences imposed on 5 February 2001 require no variation and have been served. The applicant will be eligible for release on parole on 7 August 2003.

37. O'KEEFE J: I agree. The order of the Court will therefore be as proposed by Smart AJ.

**********

THE SCHEDULE

LIST OF OFFENCES TO BE TAKEN INTO ACCOUNT

No Place where Date of Alleged Offence

______________________________________________________________________

1 Bankstown 13/11/97 Resist Officer in execution of duty

2 Parramatta 9/11/97 Maliciously destroy or damage property

3 Parramatta 9/11/97 Assault Officer in execution of duty

4 Lidcombe 8/11/97 Carry an offensive weapon, namely fold

5 Darling Point 31/10/97 Maliciously destroy or damage property

6 Darling Point 31/10/97 Maliciously destroy or damage property

-1/11/97

7 Darling Point 31/10/97 Maliciously destroy or damage property

-1/11/97

8 Darling Point 31/10/97 Larceny

-1/11/97

9 Darling Point 31/10/97 Break & Enter with intent to commit

-1/11/97 felony

10 North Sydney 26/10/97 Take conveyance without consent

11 North Sydney 27/10/97 Negligent driving

12 Annandale 8/11/97 Assault Police

13 Leichhardt 8/11/97 Enter enclosed lands without lawful

14 Lidcombe 8/11/97 Maliciously destroy or damage

15 Lidcombe 8/11/97 Assault Police

16 Silverwater 9/11/97 Assault occasioning actual bodily

17 Condell Park 29/3/97 Steal motor vehicle

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Citations

R v Johns [2002] NSWCCA 185

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CITATION:	R v Johns [2002] NSWCCA 185
FILE NUMBER(S):	CCA 60628/99
HEARING DATE(S):	15 May 2002
JUDGMENT DATE:	15 May 2002
PARTIES :	Regina v Colin John Johns
JUDGMENT OF:	O'Keefe J at 37; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/0190; 98/21/0191
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

COUNSEL :	(A) P Bodor QC (C) R A Hulme
SOLICITORS:	(A) Mark Rumore (C) S E O'Connor
CATCHWORDS:	Sentencing - No question of principle - adjustment of non-parole period
LEGISLATION CITED:	Nil
CASES CITED:	Nil
DECISION:	See para 35-36