R v Johnson
[2018] ACTSC 137
•7 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Johnson |
Citation: | [2018] ACTSC 137 |
Hearing Dates: | 29 January 2018, 7 May 2018 |
DecisionDate: | 7 May 2018 |
Before: | Mossop J |
Decision: | See [33]–[34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated robbery in company – young offender – history of illicit drug use – consideration of illicit drug use rehabilitation – intensive corrections order |
Legislation Cited: | Criminal Code 2002 (ACT), s 310(a) |
Parties: | The Crown (Crown) Jake Alexander Johnson (Offender) |
Representation: | Counsel K McCann (Crown) P Edmonds (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Canberra Criminal Lawyers (Offender) | |
File Number: | SCC 281 of 2017 |
MOSSOP J:
Introduction
Jake Alexander Johnson has pleaded guilty to one count of aggravated robbery in company in contravention of s 310(a) of the Criminal Code 2002 (ACT). The maximum penalty for the offence is 25 years imprisonment, a fine of $375,000 or both.
The offender pleaded guilty on 6 October 2017 at the fourth mention date, following the preparation of a brief of evidence. While the plea was not at the earliest possible opportunity, it was an early plea and has significant utilitarian value. As a result of the guilty plea, I will allow a reduction of 20 per cent of the length of a custodial sentence that I would otherwise have imposed.
Facts
The offence in question occurred on 21 April 2016. As at that date, the offender was 19 years old. It involved a male and female co-offender, both of whom were under the age of 18. I will refer to them as co-offender 1 and co-offender 2, respectively. Co-offender 1 knew the victim as they had attended school together. On 21 April 2016, co-offender 1 and the victim had a conversation on the Facebook messenger app and co-offender 1 agreed to pay the victim if he would drive him around that day in order to do a number of errands.
The victim was driving a blue 2009 Holden Commodore sedan which was owned by his father, but which he regularly drove. The victim picked up co-offender 1 and they drove to various locations. Co-offender 1 asked the victim to park outside Stromlo High School. Co-offender 1 said that he was waiting for two female friends. A male and female walked towards the vehicle and the co-offender said that they were not his friends. They were the offender and co-offender 2. The offender and co-offender 2 approached the vehicle and asked for directions. The offender unsheathed a knife and placed it inside the driver’s door, saying “get out of the fucking car”. Co-offender 2 shouted at the offender to punch the victim. The offender used a closed fist to punch the victim in the eye. This resulted in a black eye and redness to his right cheek area. The victim exited the vehicle and ran onto the road stopping an ACTION bus to ask for assistance. The offender got into the driver’s seat and co-offender 2 also got into the vehicle. The victim’s mobile phone remained in the car. The victim knocked on the door of a nearby house and used the resident’s mobile phone to contact police. The vehicle was recovered by police at about 3:30pm that day.
Text messages from the mobile phone of co-offender 1 indicated that he was trying to sell the stolen car. Co‑offender 1, subsequently, provided a statement to police that implicated the offender and co-offender 2. Prior to that, the offender had declined to answer questions put to him by police.
Sentences imposed upon co-offenders
Co-offender 1 was sentenced in the Childrens Court. He had no criminal history. He was 17 years old at the time of the offence. He had pleaded guilty at an early opportunity. He provided a statement to police implicating the offender and co-offender 2. He was sentenced to seven months imprisonment, suspended after serving 46 days of imprisonment upon entering into a 12 month good behaviour order.
Co-offender 2 was sentenced by the Childrens Court as she was 17 years old at the time of the offence. She pleaded guilty at an early opportunity. She was given a sentence of six months imprisonment, fully suspended upon entering into a good behaviour order for 12 months.
Pre-sentence report
The offender is 21 years old.
The pre-sentence report indicates that the offender has had previous contact with ACT corrective services. His compliance with supervision under a good behaviour order has been unsatisfactory.
He was born in Queanbeyan and had a difficult childhood, marred by his father’s alcohol abuse and mother’s unconventional lifestyle. His father remarried and then separated from his new wife, although, the offender has a supportive relationship with his stepmother.
He described himself as being in a supportive relationship with his current partner for a period of five months. He resides in ACT Housing accommodation. Prior to that, he reported being homeless.
The offender left school halfway through Year 12 and obtained casual employment as a plumber. He lost that job in July 2017. At the time of the pre-sentence report, he was unemployed and was then receiving the Newstart Allowance from Centrelink. He also received financial support from his stepmother. An intensive correction assessment indicates that in March 2018, he obtained full-time, casual employment in the construction industry. He is reported as being a good employee with a strong work ethic. There is some prospect that he will obtain a permanent position with the concreting company by whom he is employed. Between January and March 2018, he had some intermittent employment with a landscaping business.
His stepmother reported that he had lost his prosocial friends due to his illicit drug use. He has a history of illicit drug use commencing at the age of 17. It involved using cannabis, cocaine, MDMA and methamphetamine. Urinalysis carried out by ACT Corrective Services in November 2017, recorded positive readings for cannabis and cocaine. A questionnaire administered in September 2017, indicated that his drug use was at a “low level”.
He has previously been diagnosed with depression. His stepmother indicated that he would benefit from a review of his mental health.
He stated that he could not recall most of the day of the offence. He said that he was under the influence of illicit drugs at the time, and committed the offence to support his drug habit. (I take this to be under the influence of methamphetamine, although, that is not stated in the pre-sentence report.) He said that at the time, he was homeless and easily persuaded by his co-offenders to become involved in the robbery. He is recorded as showing little insight into his offending behaviour and not articulating any victim empathy or awareness.
The author of the pre-sentence report assessed him as being at a medium risk of general reoffending because of his substance abuse, mental health and, at the time of the assessment, lack of employment. The author noted the absence of acceptance of any real responsibility for his offending conduct and the emphasis he placed on drug dependence and loss of memory.
Criminal History
As an adult, the offender has convictions for possessing an offensive weapon, furious, reckless or dangerous driving, driving while suspended and assault occasioning actual bodily harm. He was on conditional liberty for the latter offence when he committed the aggravated robbery.
Other evidence
At the hearing in January 2018, the offender’s stepmother gave evidence that the offender had gone off-track, associated with the wrong people and was using drugs, but, that he was now back on track. She said that he had gained some insight into his conduct during the period of the offending and that he was motivated to change. At that point, he had started work the week before with the landscaping business.
The intensive corrections assessment, which I ordered on that occasion, indicated that he currently has stable accommodation in a one bedroom public housing unit. Although, he is seeking to transfer from that unit because of antisocial people within the public housing complex.
The offender is still identified as having little insight into his offending behaviour or victim empathy, although the intensive corrections assessment reports that his stepmother indicates that a curfew would be useful and indicates the perceived benefits, so far as his stepmother is concerned, of the day-to-day routine involved in full‑time employment.
The intensive corrections assessment assesses him as suitable for an intensive corrections order, notwithstanding his ongoing cannabis use. The testing during the period of the assessment indicated ongoing use of cannabis but no methamphetamine or other illicit substances. The evidence about precisely when he stopped using methamphetamine is not clear. He undertook a period of detoxification within the Canberra Hospital in August 2016 but it appears that he only gave up methamphetamine and use of other illicit substances, apart from cannabis, at some stage after that.
Consideration
The offence of aggravated robbery is extremely serious. That is indicated by the magnitude of the maximum penalty for the offence. That maximum penalty reflects the fact that it was robbery in company. In addition to the statutory aggravation relied upon, the offending conduct was more serious because it involved the use of an offensive weapon, namely a knife. The gravity of the offence is also increased by the significant value of that which was stolen from the victim.
The position of the offender is different to that of his co-offenders in that:
(a)He was the one who played the major role in the robbery including the assault and the threat with the knife.
(b)He was an adult at the time of the offending conduct, being 19 years old.
However, he does not appear to have been the planner of the offence, co-offender 1 having used his connection with the victim to obtain contact with him and attempting to sell the stolen vehicle after the robbery occurred.
The evidence of the observations of his stepmother and the drug testing during the intensive corrections period, as well as the evidence of his present full‑time employment, gives hope that the offender may be able to turn away from his offending conduct. His youth carries with it that opportunity. However, as counsel for the Crown indicated, the assessment of his future prospects must be guarded because of his youth and the fact that he has only returned to apparently law-abiding behaviour in the recent past, as well as the fact that he has only been in constant employment for a relatively short period.
In my view, only a custodial sentence is appropriate. The starting point for any such sentence is 20 months imprisonment. A reduction in that sentence of 20 per cent on account of plea of guilty, gives a total period of imprisonment of 16 months.
It is next necessary to consider how that sentence is to be served.
Notwithstanding the offender’s ongoing cannabis use during the period of the assessment, he was assessed as suitable for an intensive corrections order.
I do not consider a wholly suspended sentence is appropriate. If combined with a substantial amount of community service, such a sentence might adequately reflect the requirement for punishment and deterrence but would less adequately address the need for rehabilitation.
I do not consider that the objective seriousness of the offending conduct compels a sentence of full time custody as part of partially suspended sentence or otherwise. The subjective circumstances are such that the requirement for punishment and deterrence may be achieved within the framework of an intensive corrections order.
In my view, the purposes of sentencing will be best addressed by imposing an intensive corrections order. The offender’s youth and the necessity to address his illicit drug use means that this is the most appropriate custodial option. The capacity to maintain full‑time employment is likely to be an important component of his long-term rehabilitation and an intensive corrections order permits that to be maintained.
I consider that it is appropriate to impose a curfew condition as part of the intensive corrections order. That will reduce the risk of antisocial associations and the order that I will make will give some flexibility as to how long that remains in force, ensuring that the offender has maximum incentive to make progress with his rehabilitation.
Therefore, the offender is sentenced to imprisonment to be served by way of an intensive corrections order for a period of 16 months, commencing on 7 May 2018 and ending on 6 September 2019.
The intensive corrections order is subject to the conditions that:
(a)The offender supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer.
(b)The offender attend such educational vocational, psychological, psychiatric or other programs or counselling as directed by a corrections officer.
(c)A curfew condition:
(i)Requiring the offender be present at his place of residence (being a place of residence notified to the Director-General);
(ii)Such a condition to continue for the first 12 months of the order or such shorter period determined by a delegate of the Director-General; and
(iii)The curfew is recommended to be from 10pm until 5am.
(d)The offender is to report to ACT Corrective Services, 249 London Circuit by 11am tomorrow, 8 May 2018.
| I certify that the preceding [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 26 June 2018 |
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