R v Johnson

[2020] NSWDC 820

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Johnson [2020] NSWDC 820

Hearing dates:

22 October 2020

Decision date:

22 October 2020

Jurisdiction:

Criminal

Before:

Norrish QC DCJ

Decision:

Sentenced to 2 years 3 months imprisonment; non- parole period 12 months imprisonment.

Catchwords:

CRIME – sentence – break enter and steal- special circumstances – offence committed while on conditional liberty – extensive criminal history – fled interstate to commit further offences – institutionalised – deprived upbringing – “Todd” principles

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act

Cases Cited:

Bugmy v R [2013] HCA 37

Callaghan v R [2006] NSWCCA 58

Harris v R [2005] NSWCCA 204

Moffittv R (1990) 20 NSWLR 114

R v Henry (1999) 46 NSWLR 346

R v Osenkowski (1982) 5 A Crim R 394

RvPonfield (1999) 48 NSWLR 327

RvTodd (1982) 2 NSWLR 517

Category:

Sentence

Parties:

Regina (Crown)
David John Johnson (Offender)

Representation:

Solicitors:
Ms J Azad (DPP)
Mr P Paine (Offender)

File Number(s):

2020/00182861

Publication restriction:

No

Judgment

1. Mr Johnson I propose to sentence you to two years three months imprisonment. I am going to date that sentence from 19 July 2020. That is approximately a month after you came back into custody in New South Wales. I am going to fix a non‑parole period of one year. I am going to make a finding of special circumstances. It is not possible for me to order an Intensive Correction Order; that would not reflect either the character of the offending or the relevance of your criminal history, all things taken into account. I propose to direct that you be referred to the Drug Court for assessment for your eligibility for a Compulsory Drug Treatment Order. Whether that can occur or not in the time that I have fixed I am not able to say.

2. My practice is, Mr Johnson, is to tell people in advance what their sentence is going to be. I think that is what most people who are to be sentenced are more interested in, not leaving people in suspense. I will give my reasons now.

3. I have accorded you a 25% discount upon the otherwise appropriate sentence for the offence that you have committed.

4. David John Johnson appears today for sentence in relation to an offence that was committed quite some time ago in February 2006 at residential premises at Kiama. I will come back to the facts of the matter. It is an offence contrary to s 112(1) Crimes Act 1900. It carries a maximum penalty of 14 years’ imprisonment and has no standard non‑parole period.

5. A charge of aggravated breaking entering and stealing was withdrawn at the Local Court.

6. The offender pleaded guilty at the Local Court and was committed for sentence. He is entitled, whichever way one looks at it under the legislation or otherwise, to a discount of 25% for that plea of guilty reflecting its utilitarian value.

7. The offender has been in custody in New South Wales since 19 June 2020 as I understand it but was in fact arrested in relation to these matters, according to the coversheet, on 16 June 2020.

8. As I would understand it, Madam Crown, he was in custody in Western Australia for some days, is that correct?

9. AZAD: I believe 16 June your Honour, and then he arrived in New South Wales on the 19th.

10. HIS HONOUR: What I will do, I will adjust what I propose back to 16 July to give effect to time spent in custody.

11. The offender committed the offence that I am concerned with while subject to parole. He had been sentenced at the Local Court in respect of an escape from lawful custody and some breaking entering and stealing matters, to 12 months imprisonment with a non‑parole period of nine months. He persuaded a District Court Judge to vary the non‑parole period to three months and the overall sentence was to expire on 4 April 2006. Thus, he committed these offences five or six weeks before the expiry of that parole period. This offence was committed in breach of conditional liberty and that is an aggravating factor under s 21A(2) Crimes (Sentencing Procedure) Act 1999, hereinafter to be referred to as the Act. But he was also in breach of two other forms of conditional liberty. For a common assault for which he was sentenced to 12 months imprisonment to date from 12 December 2005, but that was suspended pursuant to s 12 of the Act. That section has since been repealed. He was also subject to a s 9 bond under the previous provisions in the Act. That was a two year bond that dated from 1 December 2004; that was an offence of assaulting a police officer in the execution of his duty. So, thus, the offender was in breach of three different conditional liberties arising out of three different offences where sentences were imposed, as I would understand it, at three different times. Thus, as I said, there emerges further consideration of an aggravating factor of significance in relation to the offending.

12. It is to be pointed out in relation to the matter that the offender’s parole had been revoked in his absence and when he returned to New South Wales from Western Australia on 19 June he was required to serve a balance of parole of two months 23 days to commence on 19 June 2020. Now, of course, I could have commenced the sentences imposed upon him from an appropriate date that he came into custody, and as it emerges from the transcript of these remarks it has become apparent to me that he was in custody in Western Australia before extradition from 16 June. I will give recognition of the 16th of the month. I could commence the sentence, given the very limited period of balance on parole, from the expiry of the balance of parole. If it was a balance of parole of some years of course one would need to be more sensitive to the commencement date than simply making the sentence cumulative upon whatever balance of parole is required to be served. Or, I can commence the sentence part way through what the prisoner by this stage has served as the balance of parole, having served that balance of parole between 19 June 2020 and 10 September 2020.

13. There is 2006 decision of the New South Wales Court of Criminal Appeal of Callaghan v R [2006] NSWCCA 58, where Simpson J, in her usual erudite and succinct way, reflected upon the sensitivity of making findings of aggravation arising from breach of conditional liberty by way of breach of parole and fixing sentences that must take into account the balance of parole. There is no strict rule, as her Honour made clear, but one is to be careful not to ‘double dip’ as it is said and I am sensitive to that. I feel the sentence I impose should commence part way through that balance of parole but only by one month out of a balance of parole of two months and 23 days. And I accept that I must take into account that one month by reference to the sentence I impose in terms of fixing a non‑parole period.

14. I say from the outset it is quite clear that I have made a finding of ‘special circumstances’ pursuant to s 44 of the Act. I recognise some of the matters that have emerged in the prisoner’s case that require attention. It is quite clear to me the prisoner is heavily institutionalised. He made the comment in his articulate evidence that he regarded being in gaol being like “my home”. And of course gaol seems to hold no terror for him as I will explain in a moment because he just keeps on offending, causing pain and suffering to people without regard to the consequences, notwithstanding what he has said to me. On the other hand, one has got to keep one’s feet on the ground in terms of offences of this type with a maximum penalty of 14 years. This is an offence that is of significance to the victims and involves the violation of the home of the victims. But within the range of offences of its type pursuant to s 112(1), bearing in mind the particular serious indictable offence, that is stealing that is pleaded when other much more serious indictable offences can be pleaded under the section, it is an offence, even though there is no standard non‑parole period, I could view objectively as below what could be regarded as the middle range of objective seriousness. I appreciate that term averred is only directly relevant to offences with a standard non‑parole period. But there are features of the offending to be considered, particularly the violation of the privacy of the victims within the house. I have to take into account the character of the commission of the offence. It was not a professional breaking and entering. I note the prisoner left behind fingerprints or ridge marks, he obviously did not disguise his hands it would seem, or else he was very clumsy with his use of gloves, if he had gloves, and his identity was readily established after this breaking was found.

15. The prisoner stole a quantity of money in various ways, largely within a handbag which he had taken, not only taking $800 in Australian currency but personal items, driver’s licence, credit cards, house keys, car keys and prescription glasses valued at $350. He took a $20 note that was separately located on a kitchen bench. He also took an envelope that was in a drawer containing $360 in Australian currency and Visa receipts and was able to calmly exit the premises having broken in at night sometime between 9:00pm and 6:45am unawares to the knowledge of the owners.

16. The manner of the commission of the offence shows some discernment on his part. It is certainly not consistent with the person who was so affected by prohibited drugs or alcohol that he would have had difficulty making choices or decisions. He must be fairly said to have very deftly got what he needed but notwithstanding the considerable inconvenience to the victims, the husband and wife living in the house, of having to replace credit cards and driver’s licences and keys and the like, the sum total of property stolen in the scheme of things was modest, but of value to the victims. They were elderly people, the victim described as victim 1, the husband, was aged 70, although being 70 myself, I do not know that that is particularly elderly. The wife was, I am assuming, of similar age. But having said that and noting that of course there is no evidence the prisoner knew the ages of the victims except, of course, when he looked through the handbag he could examine the driver’s licence and see the details of the victim, that is really an ex post facto revelation as far as the prisoner is concerned.

17. The offence in its terms is a type of offence that the Local Court is dealing with all the time. But I understand, of course, that he was charged with an aggravated form of the offence and ultimately the matter was deemed to be appropriate for the learned Director’s representatives to elect for the matter to come to this Court.

18. The prisoner was born in November 1980, thus he will be 40 in a few weeks’ time. He has a considerable history, the significance of which is as important after the event as it is before the event. Of course in assessing the relevant criminal history in terms of the conduct of the prisoner on the date of the offending, the relevant criminal history is that that precedes it. But the criminal history of the prisoner post the offending is very relevant to consideration of mitigating factors under s 21A(3) of the Act such as his prospects of rehabilitation, the likelihood of him re-offending, the character of his contrition and the like. He has been imprisoned for various offences since 1998. I will not go through the full detail of his record but as a juvenile and then as a young adult he was charged with many offences of dishonesty, but dealt with it must be fairly said, in the Local Court. In 2000 he was convicted of a range of offences for which he received amongst other things, suspended sentences, but then bearing in mind the criminal history given to me is not in chronological order and thus is difficult to follow, I note that for offences committed in 2001 of breaking entering and stealing x 3 and escaping from lawful custody, he was sentenced ultimately in 2004 to a term of imprisonment of 12 months. That is the term of imprisonment to which I referred earlier. Why it took so long for the matters to be resolved in the Local Court I do not know.

19. He committed an offence of breaking entering and stealing, I should say, in 2000 as well, that was dealt with again in 2004 and once again he was given a sentence of 12 months imprisonment. I note in relation to all those matters that the sentences essentially were imposed to run concurrently. He was convicted in October 2005 at Wollongong Local Court in relation to the common assault matter for which he was placed on the s 12 bond to which I made earlier reference. He can be thus seen by reference to those matters and the other offences he committed before 2006, being carried in a conveyance without consent of the owner and being sentenced to six months imprisonment; possessing prohibited drugs for which he was imprisoned; carrying a cutting instrument upon apprehension for which he was imprisoned for six months; larceny for which he was imprisoned for six months; offences committed in 2004, that whilst he had a number of convictions for dishonesty, his appearances had by and large been those that required attention of the Local Court. But he had also been given a number of opportunities for supervision, findings of special circumstances and the like. Then we get to the time of the commission of this offence in 2006 when, as I said, he was subject to those three different types of conditional liberty.

20. However, the picture becomes either clearer or murkier depending upon the way one wishes to view it. When one has regard to his subsequent conduct his counsel in his oral submissions wanted to emphasise the fact that the prisoner was back in custody in Queensland only ten days after committing the offence with which I am concerned. Which I am prepared to accept in the scheme of its performance and having regard to other features, is an offence connected to his use or abuse of prohibited drugs. His counsel pointed out by reference to the offence date with which I am primarily concerned, the 21st and 22 February 2006, that he was arrested and refused bail on 3 March 2006 for breaking entering and stealing offences in Queensland and on 17 November 2006 he was sentenced in the Southport District Court in respect of 34 break and enter offences and received five years imprisonment.

21. I have some familiarity with imprisonment in Queensland because I have done cases in Queensland, including some High Court cases that I argued in Queensland many years ago, and he told me, and I am prepared to accept, that out of that five years imprisonment he served three and a half years imprisonment. Sometimes in Queensland in that period of time, people could be released to home detention during the course of their term of imprisonment. Whilst non‑parole periods were not fixed by the Courts there is sometimes a system whereby people can be released to parole as early as 50% into their sentences.

22. He then appeared on 1 February 2011, according to the Queensland criminal history, for multiple offences including nine breaking and entering and stealing offences and received a four year imprisonment plus another term of imprisonment for other offences receiving an overall sentence, when all things are taken into account as I would calculate it, of five years. That sentence is one that he said he served three years imprisonment in relation to the orders made by the District Court. The sentence being imposed in the Brisbane District Court. He appeared again before the Brisbane District Court, counter intuitively one might have thought in light of what he told me, on 19 July 2013, which is less than three years after the earlier sentence. But then again there might have been pre‑sentence custody to be taken into account. He was sentenced for multiple offences, as his counsel points out in his helpful chronology, including four break, enter and steal sentences, receiving a total sentence of three years, but a sentence that was accumulative upon an earlier sentence imposed in February 2011. He told me in relation to that that he had served essentially three years imprisonment. Although he had to serve other terms of imprisonment or there were other periods of custody to be taken into account. He said, though it does not add up from what he told me, that he had served, by the time he had finished his criminal conduct in Queensland, 12½ years in custody. Whether that is correct or not he certainly had served in close succession very substantial terms of imprisonment.

23. On 8 February 2019 he appeared before the Caboolture Magistrate’s Court, again sentenced for multiple offences of dishonesty, and received a sentence of 30 months imprisonment suspended after ten months. He told me that in the context of an earliest release date of 29 October 2019 that he served ten months. His counsel notes from the criminal history, he travelled to Western Australia and it would seem, not long after he arrived, he committed further offences. Because on 15 June 2020 in the town of Kununurra, which I think is the town to the east of Derby, he was sentenced to six months imprisonment in total dated from 25 April 2020. There was some suspension in relation to the sentences imposed in respect of other offences. He was then on 16 June released to New South Wales custody, if I could call it that, in the context of being extradited.

24. Now, that very helpful summary of the criminal history in relation to events in Queensland, of course, does not take into account his Victorian criminal history. That is to be considered in the context of criminal conduct before the offending with which I am now concerned. In March 2001 he appeared at the Wangaratta Magistrate’s Court. He was convicted of a number of driving offences; driving in a manner dangerous, reckless conduct to endanger serious injury. Some of those offences were withdrawn presumably on pleas. Bringing property to Victoria that was the proceeds of crime, “going equipped to steal/cheat”, assaulting a police officer, resisting a police officer. He received a term of imprisonment that reflected local sentencing mores, nine months detention in a ‘Youth Training Centre’. The practical effect of which has not been addressed. He came back before the Wangaratta Magistrate’s Court on 27 September 2002 but in relation to what appear to be the charges that were brought before the Court in March 2001 and those matters were dismissed on the basis of his compliance with orders of the Court on a previous occasion.

25. So what that shows, and the prisoner has addressed it squarely in his evidence before me, is his continuing criminal conduct for an extended period of time, perhaps more serious than that with which I am now concerned, with substantial terms of imprisonment to be understood in the context of sentencing practices in Queensland which, of course, are different from New South Wales.

26. If I might, before I come to the evidence of the prisoner, turn then to the issue of ‘delay’, because it is a matter squarely raised by his counsel by reference to the decision R v Todd (1982) 2 NSWLR 517. Todd was a decision actually determined in 1979. It took three years for it to be reported in the New South Wales Law Reports. Whilst I acknowledge what is quoted in the submissions about the effect of delay in sentencing due to interstate sentences; considering the prospects of rehabilitation, the need for a considerable measure of understanding and flexibility of approach and requiring sometimes an undue degree of leniency being extended to the prisoner, none of those observations in Todd apply here. The situation with Mr Todd was that he committed crimes in New South Wales and Queensland at about the same time so that meant that when he was arrested in Queensland and spent his five or six years or whatever it was in gaol in Queensland, when he came to New South Wales the New South Wales sentencing Judge was to sentence him in the context of his progress since the commission of offences. No further offences being committed because he was in custody, assuming that he did not murder somebody or stab somebody whilst he was in custody.

1. Well that is a very different situation than applies here. If I was to judge his prospects since the original offending, because of interstate sentences, well what I would obviously observe is that he has continued on a course of conduct of a similar manner for an extended period of time, requiring substantial terms of imprisonment reflecting very few prospects of rehabilitation. Notwithstanding the evidence he has given before me.

2. Now his evidence before me has to be considered in the context of the material that has been provided on his behalf. I have noted for a start he has been accepted into a drug rehabilitation program, although that acceptance is conditional because there is no bed available now. The program is “The Glen” and this is in part the foundation for a submission that I should impose a term of imprisonment that would permit him being released on an Intensive Correction Order. I do note that it would seem that in relation to some outstanding charge that was dealt with in the Local Court there has been an order made requiring the prisoner to serve an ICO. The difficulty is here, of course, that when one considers all the matters that I have to consider, even though the s 5 threshold has been passed in the concession of his counsel, and rightly so, it is not reasonable or practical in my view to consider an ICO in relation to the offending with which I am now concerned.

3. Firstly, the term of imprisonment, of course, is greater than would permit the fixing of a sentence of imprisonment by way of ICO. Bearing in mind some of the aggravating features that I have to take into account, the breaches of conditional liberty and the like and the lack of prospects of rehabilitation. But I have taken into account the fact that the prisoner has gone to the trouble to pursue that avenue.

4. The other substantial material, apart from the accused’s evidence, is a report from the psychologist. I approach the psychologist’s report with considerable circumspection. I do not doubt his integrity. But it is a report that centres entirely upon the subjective circumstances of the prisoner without any regard to his very substantial criminal history or any real insight on the part of the reporter to the significance of his criminal history and trying to understand the character of this offending and his current circumstances. For example, the psychologist applies an actuarial instrument to assess his future prospects of rehabilitation and the like, his “risks” of re-offending. He concludes from the use of the instrument that the prisoner has a “low/moderate risk of re-offending”. This is a man who just continues to offend over and over and over again, substantially and repeatedly right up until the time that he is extradited to New South Wales. To conclude on the basis of that instrument that he a ‘low/moderate risk’ of re-offending, is frankly delusional or it reflects a lack of proper testing, or it just reflects a complete failure on the part of the psychologist to examine anything else other than what might be deemed to be favourable to the interests of the prisoner.

5. The prisoner has adopted the correctness of the history that he gave to the psychologist. There is no independent evidence. But I am prepared to accept that he has had a dysfunctional upbringing, a deprived upbringing, if that is the correct expression. There is a great deal of detail that cannot possibly be checked or verified. And, of course, when one is relying upon a history provided by a person with a long history of dishonesty again one has to be circumspect. The prisoner is not the first person who has come to this Court or any other court of like jurisdiction committing offences of this type, relating a history of drug dependency and seeking to reflect a connection between their drug dependency and the circumstances of their upbringing. It is in the context of the dysfunctional and deprived upbringing of the prisoner, what is referred to at one point when returning to his mother’s care as “an impoverished environment”, that matters are put before the Court as to the significance of his drug dependency, which he had at the time of the offending and which I accept as so, and the way in which that matter should be dealt with by this Court.

6. As I have pointed out to his counsel many people grow up in deprived and dysfunctional environments without resorting to the use of drugs or the commission of crime. In fact the vast majority of people in such circumstances do. If it was not the case we would not have 13 or 14,000 people in gaol custody in New South Wales, we would have hundreds of thousands of people in gaol custody.

7. But it is to be recognised that accepting just for the purposes of this judgment the essence of what is claimed in detail by the prisoner and adopted in his evidence, that the prisoner’s progress towards the offending I am concerned with in 2006 was blighted by disadvantage.

8. It is this context that his counsel in his very helpful written submissions seeks comfort from the decision of Bugmy v R [2013] HCA 37. I am very familiar with the decision of Bugmy and I accept in the context of its general principles, that whilst it is primarily concerned with the history of Aboriginal disadvantage, and particularly Mr Bugmy’s disadvantage in coming from the remote community of Wilcannia, that the issue of disadvantage is one that remains with a person throughout their life and it is a matter that does not diminish with the passage of time and repeat offending as a relevant issue. But these are all matters of degree and the facts of the matter are that someone growing up in the Illawarra lives a far more privileged life than someone growing up in Wilcannia, where many houses do not have electricity or sewerage, where most people are unemployed; where people do not have access to transport and shops; and all the various comforts that can be easily found if you are living Dubbo or Dapto or you are living at Thirroul or you are living in Bulli or any one of the suburbs around Wollongong. Wilcannia, in the context of considering Bugmy principles by reference to Mr Bugmy, is a complete world away from the world in which this prisoner has lived both before the offending and after the offending.

9. So to the extent that Bugmy principles are relevant in terms of their intensity and degree, of course I note his background of deprivation. I also note one other aspect of his upbringing which I do not propose to put on the record concerning misconduct towards him by adults. But then again whilst it may be indirectly causally connected to his later use of drugs, as he constantly said to me in his evidence “self‑medicating” to erase bad memories, it is not an inevitable consequence of such conduct of which I have personal experience, that would warrant a conclusion that inevitably one would follow the path that this particular prisoner has.

10. With regard to his drug addiction or drug dependency at the time, it is not a mitigating factor as the decision of R v Henry (1999) 46 NSWLR 346 at [272]-[273], in the judgment of Wood J, to which his counsel referred in his written submissions made clear. Simpson J made the point, with which I personally agree, that drug addiction is not a matter of “personal choice” as the learned Chief Justice viewed the mater. But the truth of the matter is Woods’ J view of the issue of drug addiction in sentencing in respect of armed robbery matters, and I am prepared to accept, applies equally to break enter and steal matters. Drug dependency and addiction is not a mitigating factor. However, it may be relevant in other ways to the assessment of the objective seriousness of the offending. And here I am prepared to accept in that context this was not a truly planned offence. Thus there is a mitigating matter that arises there. It was “opportunistic”. The prisoner has chosen a place where obviously things were quiet and he has broken in in the expectation that he will be able to find something that he could use. It is also relevant to subjective circumstances in the sense that, as Wood J pointed out, the person’s drug dependency may be so through circumstances beyond that person’s control. It might be from circumstances such as I have here. But having said that he made the point that it may be relevant in considering the prospects of rehabilitation, the prospects of recidivism, whether an accused person is at the “crossroads” in the manner discussed in the South Australian case of R v Osenkowski (1982) 5 A Crim R 394.

11. Well the prisoner cannot possibly be at the crossroads. He told me in his evidence, and as I said he spoke articulately and had considerable insight which I have taken into account, using my word, that he had an ‘epiphany’ sometime before he went to Western Australia. Well the epiphany did not stop him offending there and it is an epiphany far too late in the scheme of things since this offending to be of particular significance in this particular sentencing exercise. I hope he has had that epiphany, but the truth of the matter is ultimately, as I pointed out to his counsel, all things boiled down the responsibility lies with his client to ‘seize the nettle’ and take the steps that are required to avoid offending in the future.

12. Now I do not for a moment suggest that being a drug dependant person is an easy shackle to loosen or to shrug off, I am not suggesting that for a moment. But the truth of the matter is, he says he is nearly 40 and he has taken stock of his life. He said that he had another partner, he has had many partners I hasten to say, but another partner who may provide some stability. Well he must really take responsibility for himself instead of blaming others for his circumstances.

13. In that regard I note his evidence that he takes responsibility for himself. He is prepared to accept the consequences of his conduct back in 2006. Bearing in mind his subsequent conduct requires the Court at this point to impose a term of imprisonment which in the scheme of things, by reference to the non‑parole period, is quite modest.

14. I have spent some little time dealing with the evidence of the prisoner by reference to the submissions made by his counsel. The Crown submissions, of course, I have not completely ignored. I have not ignored them because most of them are correct and I will deal with them, apart from matters I have already addressed, at this point.

15. First of all there are the observations from decisions such as Harris v R [2005] NSWCCA 204 and Nguyen as to the character of breaking entering and stealing offences. Of course Harris and Nguyen also noted the significance of the serious indictable offence of ‘stealing’ in the context of more serious indictable offences that can be pleaded under s 112 of the Act. But as the Courts have said many, many times, breaking into people’s homes is a matter for disquiet and people are obliged thus, in circumstances that the prisoner himself has never taken responsibility for, to pay greater insurance premiums and the like.

16. R v Ponfield (1999) 48 NSWLR 327, is relevant. Of course in one sense it was a guideline judgment in relation to breaking, entering and stealing offences where the Court of Criminal Appeal could not fix upon a particular numerical guideline, as it had for Henry, given the many circumstances that arise in relation to them.

17. It should be pointed out as an historical fact, that Grove’s J in R v Ponfield (1999) 48 NSWLR 327, was really the foundation stone for the subsequent current form of s 21A of the Crimes (Sentencing Procedure) Act. When the Act was first passed and came into force when I was first appointed as a Judge in 2001, it did not have s 21A such as we know it now. Section 21A was actually amended about a year or two later. It has been amended a number of times since but taking the form in 2002 or 2003 that it currently occupies. But it is to be fairly said that Grove J, was one of the wisest judges of the Court of Criminal Appeal of his day. He was perspicacious in his anticipation of what the legislature would approve. For example he noted the significance of breach of conditional liberty, prior record for like offences, the circumstances of the offending itself. Here, as I have said, whilst the occupants were of a certain age the prisoner did not know that, and that is a relevant matter to take into account in considering that feature. But the Crown was correct to point out that some of the matters in Ponfield applied, but they are really by and large taken up by the current s 21A.

18. The Crown conceded that it was an offence that fell towards the lower end of the range of objective seriousness.

19. As far as aggravating factors are concerned, I have already referred to the fact that the prisoner was subject to conditional liberty. He has prior convictions for like offences. The fact that it is the home of the victims is not an aggravating factor given the plea.

20. I have dealt with some of the mitigating factors. The plea of guilty is a mitigating factor. I have determined another mitigating factor is that the offence was unplanned. However, I cannot accept that the prisoner has good prospects of rehabilitation or is unlikely to re-offend. If he sticks to his word then that will be so, but the truth of the matter is, one cannot with confidence, predict the future in his case. I just hope that he takes the responsibility for himself that I have outlined.

21. I cannot find, as his counsel submits, that the prisoner is relevantly contrite or remorseful. He has expressed remorse and I have noted that, but the facts of the matter are that he is expressing remorse 14 years after the event. He fled the jurisdiction for whatever reason. Bearing in mind the commission of this offence would have been a breach of his parole. He comes forward to articulately express regret and I have noted that. But, it is not a matter on balance that I could find as a mitigating factor here. Remorse and contrition overlap, of course, in their meaning. I am referring at the moment to the relevant requirement under s 21A(3). But the other aspect of the matter is to be taken into account, of course. The prisoner must understand that coming along and saying you are sorry is one thing, but the timing of the apology, the context in which it arises, are relevant matters to be taken into account. And, of course, there is nothing being done by way of action on the part of the prisoner to support his verbal statement.

22. The Crown has made comments upon the report of Mr Jones which I have taken into account. I have already made comments about Mr Jones’ psychological report and I have already commented upon the prospects of rehabilitation, the relevance of the subsequent offending. There is reference to the possibility of summary disposal, I have noted that. I accept that standing alone the offence if charged may have been dealt with summarily although it is an indictable offence. Thus, ultimately the matter is before me and I have regard in sentencing the prisoner to the maximum penalty available in this Court, not the maximum penalty available in the Court below.

23. With regard to the other defence submissions which I have taken into account, referring to them just briefly, the issue of delay is not a significant matter although I accept also from the written submissions of counsel for the accused an appropriate need for the finding of ‘special circumstances’. I cannot do much about the prisoner’s institutionalisation. That has already occurred. Although institutionalisation of an offender is a relevant matter in determining whether there are special circumstances as Wood J, in another judgment of Moffitt v R (1990) 20 NSWLR 114, made clear. Moffitt being at the time the leading case in relation to the interpretation of s 9 of the Sentencing Act 1989 which was the then section that related to the finding of ‘special circumstances’.

24. In my view the prisoner needs an extended period of supervision to assist him to adjust to community living. He also needs direction in relation to drug and alcohol counselling. He has had this in the past, some years ago, he has undertaken programs that obviously have only had a short term affect upon him. I propose to do what would appear to have been done before in Queensland and recommend that he be referred to the Drug Court. Whether this will make a difference or not I do not know but he may be acceptable for a Compulsory Drug Treatment Program.

25. To just take up his counsel’s very helpful and articulate submissions on one matter. He made the submission, which I understand is an intelligent submission in all the circumstances, that he was trying to ask the Court to approach the matter by, in his words, looking forward. He conceded the risk of recidivism but he said there were three reasons why the Court should consider a term of imprisonment that could be served by way of ICO, a general issue I have dealt with. He referred to the report of Mr Jones and the willingness of the prisoner through that report to engage in rehabilitation which he confirmed with his evidence before me. The fact that he had been assessed as suitable for a drug rehabilitation program, a matter about which I commented upon in submissions and I have taken that into account but to my mind it is not a significant matter and the fact that he is back on home soil, so to speak, and he has family support.

26. In relation to that last matter there are a couple of issues or points to be made. Firstly, the prisoner has not come back to New South Wales voluntarily. So one might have thought being arrested in Western Australia, as far away from New South Wales as you can be, it is not a significant matter that he has returned to home soil in these circumstances.

27. As for family support well I am prepared to accept that he is loved by his mother and his daughter. But I am also of the view, bearing in mind they sit here in court listening to what I have to say and listened to Mr Johnson’s evidence, that they have probably been there all the time to provide support for him if he wanted it and he has not chosen to return to the jurisdiction to seek it out.

28. He spoke of his children. He has two children that appear to be either in care or in foster care. He has a daughter who is in court. But, he said it himself, he has not seen her more than once since 2006. With respect to Mr Johnson, I do not mean to be unkind to him, these are matters of choice for him. There is nothing in the material available to me that says that after he committed his one series of crimes in Queensland he could not have said:

“Right I am coming back to the Illawarra, I am going to come back a reformed man, I am going to reunite myself with my mother and my daughter and take up my responsibilities as a father”.

55. To be fair to him, to finish off in relation to his evidence, I thought he was trying to give his evidence honestly, at least from his perspective. But that does not mean to say that one has to accept everything that he said as accurate or influential. But he did say something in this family context that obviously is true. He said, “I’m not much of a father”. That was the throwaway line. It was probably an acknowledgment of the truth. He probably wished that he was a better father, but then again he has made lots of choices as his own personal history reflects not to be a good father and that is a matter for him to think about.

56. So having regard to all that has been put before me, the evidence and the submissions, I have concluded that I must impose a term of imprisonment. That it will be a term of two years three months. I can fix a non‑parole period of 12 months to reflect the special circumstances. And that I should direct that the prisoner be referred to the Drug Court for consideration for entry to the Compulsory Drug Treatment Program.

57. In relation to the offence to which you pleaded guilty, you are convicted. You are sentenced to a term of imprisonment of 12 months to commence on 16 July 2020 expiring on 15 July 2021. I fix a balance of sentence of one year three months concluding on 15 October 2022. Noting pt 2A Drug Court Act 1988.

55. AZAD: Your Honour, sorry to interrupt. As far as I’m aware I don’t believe Wollongong comes under the cluster when it comes to Drug Court.

56. HIS HONOUR: When you say Wollongong, Wollongong District Court?

57. AZAD: It doesn’t your Honour.

58. HIS HONOUR: What, you cannot send someone to the‑‑

59. AZAD: We don’t have it here.

60. HIS HONOUR: No but there is a Drug Court in Sydney. No, no hang on, there is a Drug Court in Sydney is there not?

61. AZAD: I appreciate that‑‑

62. HIS HONOUR: Well why can’t he go to the Drug Court in Sydney?

63. AZAD: As far as I am aware that when someone is sentenced in Wollongong,‑‑

64. HIS HONOUR: Really?

65. AZAD: ‑‑namely District Court in Wollongong there can’t be a referral to another Drug Court.

66. HIS HONOUR: That is outrageous.

67. AZAD: It is outrageous.

68. HIS HONOUR: It’s a scandal. Has someone spoken to the Local Member or the Attorney who thinks that the Premier is married to New South Wales‑‑

69. AZAD: I appreciate, your brother judge, Judge Haesler, also has the same sentiments as your Honour each time.

70. HIS HONOUR: I am sorry Mr Johnson unfortunately I cannot refer you under the Drug Court Act apparently because it is not possible.

71. My associate reminds me that I actually ordered someone that came from Nowra to be referred to the Drug Court. The Crown is telling me I cannot refer anyone to the Drug Court from here for consideration by the Compulsory Drug Treatment Order.

72. AZAD: Not from this Court your Honour. It comes up from time to time.

73. HIS HONOUR: Yes I am prepared to accept what you tell me. You believe that to be true Mr Paine?

74. PAINE: I agree, we had a discussion.

75. HIS HONOUR: Fine, right well I will accept local knowledge on that.

76. I am sorry Mr Johnson I cannot refer you to the Compulsory Drug Treatment Order program because apparently from Wollongong I cannot do it under pt 2A of the Drug Court Act, which shows the anomaly. So if I could take him up to Sydney I could do it, is that right?

77. AZAD: I’m not sure. All I know, your Honour, and as far as I can take it is from this Court that we’re in at the moment it can’t be done.

78. HIS HONOUR: No but what I am saying is if I took him up to Sydney and sentenced him in the Sydney District Court I could do it.

79. AZAD: That’s possible.

80. HIS HONOUR: I am not going to do it.

81. Anyway, Mr Johnson, I will repeat. The order is that you are sentenced to a non‑parole period of 12 months which will expire on 15 July and there is a balance of sentence of one year three months. You will be subject to parole for that period of time. Do you understand that?

82. OFFENDER: Yes your Honour.

83. AUDIO VISUAL LINK CONCLUDED AT 1.13PM

84. HIS HONOUR: Thanks ma’am for that bit of local information.

85. AZAD: Maybe one day.

86. HIS HONOUR: I am just having difficulty understanding why. I mean there must be a logical reason for it because it applies. But I am trying to understand why being in a particular court makes a difference. For this reason I will tell you why. I sat at Nowra in 2001 and I was told that home detention only applied to people in Bomaderry because people in Wollongong only came down to the Shoalhaven River and you could not sentence anyone to home detention in Nowra because they are on the south side of the Shoalhaven River. Now I understand that geographic divide in the context of, you know, the Community Services or Probation and Parole having a geographical jurisdiction.

87. AZAD: Yes.

88. HIS HONOUR: But when it comes to a program within Corrective Services there is no geographical jurisdiction. There is a drug treatment program at Parklea Gaol, there is a Drug Court at Parramatta. Is it because you cannot refer people from here to the Drug Court?

89. AZAD: That’s as far as I know, your Honour‑‑

90. HIS HONOUR: That is the case, you cannot refer anyone?

91. AZAD: Yes.

92. HIS HONOUR: So if I took Mr Johnson back to Sydney I could then refer him to the Drug Court because I am sitting in Sydney.

93. AZAD: I believe you could, your Honour, given it wouldn’t be Wollongong.

94. HIS HONOUR: Yes I understand. I understand.

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Amendments

27 January 2021 - no changes

Decision last updated: 27 January 2021