R v Johns

[2021] ACTSC 288

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Johns

Citation:

[2021] ACTSC 288

Hearing Date:

5 November 2021

DecisionDate:

5 November 2021

Before:

Elkaim J

Decision:

See [24]–[25]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – significant subjective circumstances

Legislation Cited:

Criminal Code 2002 (ACT) s 404

Cases Cited:

R v Hartley [2020] ACTSC 210

R v Verdins (2007) 16 VR 269

R v Wrigley [2015] ACTSC 114

Parties:

The Queen ( Crown)

Mark Andrew Johns ( Offender)

Representation:

Counsel

M Howe ( Crown)

S McLaughlin ( Offender)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Legal Aid ACT ( Offender)

File Number:

SCC 190 of 2021

ELKAIM J:

1. On 24 August 2021 Mr Johns pleaded guilty to the offence of arson contrary to s 404 of the Criminal Code 2002 (ACT). The maximum penalty is 15 years’ imprisonment and/or a fine of $240,000.

1. The offender lived in a government owned housing unit in Belconnen. There were eight units in the block, which is four stories high. The offender lived on the ground floor.

1. On 29 May 2021, perhaps due to emotional upset, the offender was drinking a lot of alcohol. In the early evening, no doubt well affected by the alcohol, he set fire to a beer carton inside his unit. The fire spread rapidly and the offender went outside.

1. The fire brigade arrived to extinguish the fire. By this time it was well-established. The offender tried to go back into the building and needed to be restrained by a fire brigade officer. The offender told the officer that he had lit the fire.

1. He also told the police who soon arrived on the scene. It was necessary to evacuate the whole of the block of units after the fire was extinguished. It was observed that seven of the units had been damaged to varying degrees, either by smoke and/or actual fire.

1. The offender was arrested. He has been in custody since, which is 161 days.

1. The offender was born in 1968. He is one of three children. After completing Year 12 the offender began an apprenticeship as a boilermaker. Unfortunately, while at work, he suffered a very serious head injury. He was in a coma for four days. A metal plate had to be inserted in his skull.

1. He required a good deal of rehabilitation to the extent of having to relearn to walk, talk and eat. He has had significant, and continuing, support from his father in dealing with his head injury. His father is his financial guardian.

1. Unfortunately, due to his inhibition and lability, the offender has not been able to live with his parents. They simply find it too hard to deal with his outbursts. He also cannot live with any of his siblings. Accordingly his father arranged for him to live in supported accommodation.

1. The offender is subject to an NDIS plan and he requires constant oversight and assistance.

1. The offender has had some work since his injury but it has been limited, mostly because of memory problems. He still has back pain and daily headaches. Significantly, he developed epilepsy and has seizures about twice a month.

1. Another effect of the injury was that it led to the offender significantly increasing his consumption of alcohol. This reached a level of 12 to 14 stubbies of beer every day. The offender also uses cannabis which helps him to relax.

1. I have read the report of Ms Zipparo, a clinical neuropsychologist. She said that he currently suffers from the following conditions:

(a)A Major Neurocognitive Disorder Due to Traumatic Brain Injury, with behavioural disturbance.

(b)A Severe Alcohol Use Disorder, in early remission, in a controlled environment.

(c)A Moderate Cannabis Use Disorder, also in early remission, in a controlled environment.

1. In addition the offender suffers from depression. Ms Zipparo was asked to comment on the factors listed in the Verdins principles (derived from R v Verdins (2007) 16 VR 269).

1. She said:

It is therefore my opinion that the faulty thinking, impulsivity, and emotional dysregulation which have characterised Mr Johns’ post injury behaviour were contributing factors to the commission of the offence.

1. Ms Zipparo did not think that custody would have an adverse effect on the offender’s condition. But, she continued:

[H]owever, his condition is likely to make him particularly vulnerable within the general prison population because of his well-established difficulties with social interaction and social conventions, impulsivity, and poor risk assessment which are features of his brain injury….. He is therefore likely to have difficulties negotiating relationships and conflict in a custodial setting which may place him at risk of harm.

1. In relation to treatment in prison Ms Zipparo said:

There are no available medications or treatments to ameliorate the effects of Mr Johns’ cognitive and behavioural impairments which are the result of his long-standing brain injury.

1. There is no doubt that the head injury has had a major effect on the offender’s life and will continue to do so for the remainder of his life.

1. I think his subjective circumstances, especially as described by Ms Zipparo are such that the sentencing process can be mitigated accordingly. Obviously setting fire to a home unit is a serious offence, but this was an offence carried out by a significantly mentally disabled person.

1. Unfortunately the offender does have some criminal convictions in his past including damage to property. I am bound to take them into account. But for the subjective factors, a continuing sentence of full-time imprisonment would have been appropriate. This would have arisen from the factors described by Refshauge J in R v Wrigley [2015] ACTSC 114.

1. However Mr Johns has already spent 161 days in custody. The Crown fairly and properly concludes its written submissions in this way:

The Crown submits a term of imprisonment is appropriate but notes the offender has already spent a not insubstantial period in custody. A sentence that now promotes the offender’s rehabilitation and integration into the community would best achieve the purposes of sentencing.

1. The Crown also directed me to a number of roughly comparable sentences the one that gives me the most guidance is R v Hartley [2020] ACTSC 210.

1. I agree. I think the best way to fulfil this task is by way of suspended sentence. A question that arises is when the suspension should take effect. It is a question because arrangements must be made for proper accommodation for Mr Johns, I think the preferable option is to have the suspension take place in a week to give his father and other persons involved the opportunity to put pressure on the appropriate authorities to ensure that he has suitable accommodation.

1. On the charge of arson to a building, occurring on 29 May 2021 [CAN 5832/2021] the offender is sentence to 12 months’ imprisonment, reduced from 15 months for the plea of guilty to commence on 29 May 2021 and end on 28 May 2022.

1. The sentence of imprisonment is suspended on 12 November 2021 on condition that the offender enter a Good Behaviour Order for a period of 18 months on core conditions.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 5 November 2021