R v Johnston

[2019] NSWDC 607

District Court

New South Wales

Medium Neutral Citation:	R v Johnston [2019] NSWDC 607
Hearing dates:	12 February, 20 February, 18 April, 8 July and 20 September 2019
Decision date:	20 September 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 5 years 6 months with a non parole period of 4 years imprisonment.
Catchwords:	CRIME - SENTENCE - Intimidation - aggravated break and enter and commit serious indictable offence.
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW) s13(1); Crimes Act 1900 (NSW) s112(2)
Category:	Sentence
Parties:	Regina (Crown) Sarah Lee Johnston (Offender)
Representation:	Ms Martin (ODPP) Mr P. Cranney (Solicitor for the offender)
File Number(s):	2018/251817
Publication restriction:	Nil

Judgment

1. Sarah Lee Johnston you appear for sentence today in relation to two offences.

2. The first offence is that of intimidation. This involves a contravention of s 13(1) of the Crimes (Domestic and Personal Violence) Act. The maximum penalty for that offence is five years imprisonment. There is no standard non-parole period.

3. The second offence is aggravated break and enter in company and commit serious indictable offence. The relevant indictable offence was also intimidation – although, as the facts reveal, the victim of that intimidation was not the same victim as in the earlier offence to which I have referred. This involves a contravention of s 112(2) of the Crimes Act. The maximum penalty for that offence is 20 years imprisonment and there is a standard non-parole period of 5 years imprisonment.

4. The facts surrounding the offending are contained in an agreed statement of facts. To the extent that evidence has been adduced by you which is inconsistent with the agreed statement of facts, it will be disregarded.

5. As at 15 August 2018 you were on bail on a charge of affray.

6. On that date, Ms Sylvia Zarbo and her friend, Ms Stevie Cock, lived in a small rural town in NSW.

7. On that day, they had been shopping together. They returned to Ms Zarbo’s home at about 8pm. On their return to those premises, they each consumed an unknown quantity of the drug commonly known as ice.

8. At some stage earlier in the day, Ms Cock had received a Facebook call from you. The purpose of that call was to remind Ms Cock that she owed you some money. The nature of that debt is not revealed in the material before me. Suffice to say, you told Ms Cock that you were coming to get the money that was owed and that a mutual friend (whose name I know only as Tegan) would drive you to where Ms Cock was - namely at the residence of Ms Zarbo.

9. Ms Cock told you that she would meet you but that (in effect) she would have no money to pay you until midnight when she expected a deposit to be made from Centrelink into her bank account. Nevertheless, you said you were coming straightaway.

10. Sometime between 10pm and 11pm Ms Cock left Ms Zarbo’s premises with the intention of walking to her home.

11. Ms Zarbo stayed at her home watching television.

12. As Ms Cock was walking from Ms Zarbo’s house to her own, Tegan arrived in a motor vehicle. Ms Cock got into it and was driven to her (Ms Cock's) home. You were already there with the person referred to in the agreed facts as “an unknown male”, but who the Court now knows to have been Neil Sharpley. You and he were sitting in the front yard of Ms Cock’s house. You told Ms Cock that Ms Cock’s partner (a person named James) had not let you and Mr Sharpley into the house. Ms Cock then got out of the motor vehicle and went into her house. You followed her. A short time later, Ms Cock managed to usher you out of the house and James closed the door after you.

13. Although it is not clearly stated in the facts, I assume that Ms Cock also left the premises with you before James shut the door.

14. You demanded to know where your money was; and Ms Cock told you that, as it was after 12.39am, there should be money in her account. The agreed facts say Ms Cock checked her bank account - from which I infer that that was done by use of her mobile phone or a similar device. But the money had not been paid in. Ms Cock told you that she had not received her Centrelink payment. You then (in effect) asked if Ms Cock had any drugs to provide in lieu of the money. Ms Cock said she did not have any drugs, but she did know someone who might.

15. Whilst Ms Cock was in your company, she felt concerned for her safety. This may have been because you remained in close proximity to her and continually made references to the fact that you had bashed people whilst you had been in gaol.

16. You, Ms Cock, Tegan, and Mr Sharpley then drove around the town trying to find drugs. At one point you yelled at Ms Cock, “We’ve got no fuel money, no drugs and no cash. Stevie, I’m not fucking joking around, you have to fix this now”.

17. In an attempt to locate drugs for you, Ms Cock returned to Ms Zarbo’s home. Initially Ms Cock intended going into that home on her own. You said you also wanted to go into the house as Ms Zarbo was believed to have drugs.

18. Ms Cock knocked on the front door and Ms Zarbo let Ms Cock and you into the house where there was a brief conversation. Apparently you and Ms Zarbo did not know each other.

19. During this conversation, Ms Cock again checked her bank account and saw that no money had been paid into it from Centrelink. She concluded that the money was likely to be paid into the account the next day. You then said, “What’s going to happen now, are you going to ask her or what”? Although the agreed facts do not expressly state it, the only rational inference in the circumstances is that you were asking Ms Cock to ask Ms Zarbo for drugs.

20. In any event, Ms Zarbo became aware that Ms Cock owed you something. She could hear the conversation between you and Ms Cock, but she could not make out what was being said. Ms Zarbo, however, could hear a car horn making a noise from outside her premises and she became aware that there were other people outside her home.

21. What time these events took place is not clearly stated in the agreed facts but, on any view of it, it was after midnight.

22. Shortly after Ms Zarbo heard that motor vehicle and became aware that there were other people outside her house, there was a knock at her door. You answered it and Mr Sharpley was standing there. You and he spoke. Ms Zarbo told you she did not want Mr Sharpley to come into her house. You then began to get angry at Ms Cock and you told her, “You’re going to get hurt”.

23. Unsurprisingly in the circumstances, Ms Cock believed this. She also believed that it had something to do with the debt that she owed you.

24. It is the statement to Ms Cock that she was going to get hurt in the circumstances that I have described which constitutes the offence of intimidation. In terms of its objective seriousness for an offence of its kind, it hovers somewhere equidistant between the middle and the bottom of the range.

25. Having made that threat, Ms Zarbo, Ms Cock and you went into the front yard where Ms Cock accompanied you and Mr Sharpley back to the motor vehicle.

26. After a time, Ms Zarbo and Ms Cock went back inside Ms Zarbo’s house. Ms Cock told Ms Zarbo that she was going to call the police. As Ms Cock was on the phone making that call, you "knocked" on Ms Zarbo’s door. You must have known that Ms Zarbo had locked it to keep you out because you said, “Why the fuck did you lock the door?” The only rational inference in the circumstances was that you had already tried (unsuccessfully) it to get in.

27. Ms Zarbo then tried to stall whilst the police arrived. She was unsuccessful because Ms Zarbo heard two loud bangs to the front door of her home in the early hours of the morning and the door burst open. And what was revealed was you, Tegan and Mr Sharpley all standing there - and Mr Sharpley was armed with a star post picket, which you knew he had.

28. The three of you then went into that home; and the three of you began to rummage through Ms Zarbo’s belongings looking for drugs.

29. In the course of this, Mr Sharpley picked up a tomahawk belonging to Ms Zarbo and put it in his pocket. He said words to the effect, “Go and get it or I’ll bash the fuck out of you with this”. Although the agreed facts do not expressly state it, the only rational inference in the circumstances is that “this” to which he was referring was the tomahawk.

30. Rather than seeking to discourage Mr Sharpley from his activities, you kept asking for drugs. Ms Zarbo stated she did not have any. You kept asking for drugs. Ms Zarbo was afraid that one or more of your group would assault her. She found a small quantity of an unidentified drug which she gave to you and your co-offenders.

31. You took whatever drug it was and your mood changed. You became amicable; and you and your co-offenders left the premises.

32. Shortly after that the police arrived. They found a broken wooden pole lying on the nature strip and a metal star picket lying in the gutter of Ms Zarbo’s house.

33. You were arrested on 16 August 2018.

34. It is these facts which constitute the second offence of aggravated break and enter and commit serious indictable offence. In terms of its objective seriousness for an offence of its kind, it is a midrange offence.

35. The second offence is additionally aggravated by the facts that: the offending occurred in the home of the victim; a weapon was used; and you were on bail. It is not an additional aggravating factor that you were in company because that is part of the definition of the offence.

36. You are now 38 years of age.

37. It is difficult to have a clear picture of your background, Ms Johnston because, to a very large degree it is you, and you alone, who is the source of the information about your background. And in this context, you have a significant history of convictions of dishonesty.

38. Moreover, to the extent that there is any purported corroboration of your version of your life, it is not helpful. It would seem that the only member of your family to whom you are now close, and upon whom you can rely, is your former step-father, Mr Matthew McMahon. Mr McMahon was interviewed by the psychologist who interviewed you - and to whom you gave what, at face value, is a very distressing family background. But Mr McMahon was unable, in some significant respects, to assist you. For example, you told the psychologist that your mother was a drug addict; that she had both verbally and physically abused you as a child; and that that abuse, verbal and physical, had increased as you got older and your mother’s drug use worsened. Significantly, Mr McMahon, although he confirmed that your mother was a drug addict, was unable to recall your mother being physically violent towards you. In addition, whilst he acknowledged that your mother was a drug user, he said that tension in the relationship between you and her was also partly because of your own behaviour. Furthermore, he said that you would fabricate stories about your mother and other family members.

39. So, when I read that you were sexually abused by family members and others, I have had to pause and think very carefully, Ms Johnston.

40. I am unable to be satisfied, on the balance of probabilities, as to the fine detail of what you have asserted.

41. I have noted, however, that you have been drinking since 13; that you have been smoking cannabis since you were 14; that you have been using ice and heroin since you were 31; and that you have also abused Oxycontin and benzodiazepine.

42. By having regard to that long history of drug use since childhood (which is consistent with some form of abuse as a child), together with the psychometric testing conducted by the psychologist (particularly on the depression, anxiety and stress scales); and by having regard to the fact that that psychologist was able to determine from objective circumstances that your trauma profile was clinically elevated indicating multiple features of trauma, I have concluded (with some reservations) that, although I cannot be confident as to the detail, there were some things in your childhood which would (more likely than not) attract the application of the principles in R v Bugmy.

43. That finding therefore reduces your moral culpability for your offending; and reduces the application of the principle of general deterrence - although it remains a relevant consideration.

44. More relevantly, Ms Johnston, by reference to your long criminal history - and the escalating nature of the violent aspects of that criminal history - specific deterrence and the protection of the community are principles which are fully engaged.

45. The psychologist has concluded (and I accept on the balance of probabilities) that you have significant mental health issues, including depressive disorder, post-traumatic stress disorder, and borderline personality disorder - together with severe amphetamine and opiate dependence.

46. You have never sought any treatment in connection with your drug use.

47. When you first appeared before me in Bathurst on 12 February this year, Mr Cranney persuaded me that I should grant you s 11 bail. It was a condition of that bail that, when you were to be released from custody, you were to go directly to Odyssey House headquarters in Sydney in the company of an officer from the Aboriginal Legal Service. And what did you do? You persuaded the officer to go to Odyssey House via your house at Bathurst and the moment that officer’s back was turned, when you were at your house, you bolted.

48. You told me today that the reason you bolted was because your ex-partner, Mervin, had bashed you. I do not believe that. You were in the company of an officer of the Aboriginal Legal Service. You were taken to your house (in breach of the s.11 bail). You went in the front door and you went out the backdoor. There was no opportunity for you to be bashed between the front and the back door, in the company of the officer of the ALS. I am certainly not persuaded of that fact on the balance of probabilities. It seems to me an implausible statement.

49. You pleaded guilty at an early stage and you will receive a 25% discount for the utilitarian value of the pleas. I am not persuaded, on the balance of probabilities, that there is any genuine remorse in relation to those pleas. They were entered in the face of overwhelming Crown cases.

50. Your experienced solicitor has submitted that you have low prospects of rehabilitation and the Crown has submitted that you have guarded prospects. Unless and until you receive treatment for your long-term drug use - and the causes underlying that drug use (whatever they maybe) - your prospects of rehabilitation are poor.

51. I have noted the following sentence in paragraph 48 in the psychologist’s report tendered on your behalf: “Given Ms Johnston’s fear and avoidance of treatment it is recommended that this support commence whilst she is incarcerated”. In other words, even the psychologist recognises the need for you to spend a period of time in custody in order that the custodial setting may provide the structure for you to commence rehabilitation because, without the structure of the custodial setting, you will continue to avoid it.

52. I intend imposing an aggregate sentence and, accordingly, it is necessary for me to state the indicative sentences underlying the ultimate aggregate sentence.

53. For the offence of intimidation, the indicative sentence before the discount would have been 18 months imprisonment. After the discount of 25%, the indicative sentence is 13 months imprisonment.

54. In relation to the aggravated break and enter offence, before the discount the indicative sentence would have been 7 years imprisonment. Because of the discount of 25%, the indicative sentence is 5 years and 3 months and the indicative non-parole period is 3 years and 11 months.

55. Your solicitor asked the Court to make a finding of special circumstances on the basis that your prospects of rehabilitation would be enhanced by a longer period on parole. The Crown has challenged that submission. The Crown has said that, in the circumstances, the Court would be slow to conclude that your prospects of rehabilitation would be enhanced by a longer period on parole and I generally accept that submission. There will, however, be a very minor adjustment to the non-parole period.

56. I therefore sentence you to an aggregate term of imprisonment of 5 years and 6 months. I fix a non-parole period of 4 years imprisonment. The non-parole period is to date from 4 February 2019 and will expire on 3 February 2023. I fix a balance of 1 year and 6 months to date from 4 February 2023 and which will expire on 3 August 2024.

57. Whether or not, Ms Johnston, you are admitted to parole will, to a large extent, depend on you. If you misconduct yourself in gaol, as you have on previous occasions, that will adversely impact on your prospects of parole. If, however, you continue to perform as well as you have done whilst in your latest period of incarceration - when there have been no misconduct charges - and if you satisfactorily attend to the rehabilitation courses, your prospects of being released to parole would seem to me to be good.

58. You will now go with the officers, thank you.

Decision last updated: 05 November 2019