R v Johnston
[2015] VSC 16
•29 January 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL JURISDICTION
S CR 2014 0142
| THE QUEEN |
| v |
| BRITTNEY JOHNSTON |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 5 December 2014 and 29 January 2015 |
DATE OF SENTENCE: | 29 January 2015 |
CASE MAY BE CITED AS: | R v Johnston |
MEDIUM NEUTRAL CITATION: | [2015] VSC 16 |
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CRIMINAL LAW – Sentence – Manslaughter – Stabbing – Domestic violence – Plea of guilty - Offender was ‘ice’ affected – History of weapons use - Reasonable prospects of rehabilitation.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Dalziel | Office of Public Prosecutions |
| For the Offender | Mr McMahon Ms Burchill | Gleeson & Associates |
HIS HONOUR:
Brittney Johnston, you have pleaded guilty to one charge of manslaughter based on an unlawful and dangerous act, namely the stabbing of James Berias in the chest region with a large kitchen knife on 6 April 2014.
The maximum penalty for manslaughter is 20 years.
Summary of Offending
You began a relationship with James Berias only a few months before he died at your hand. It was a volatile relationship. Between February and April 2014, there were many arguments between the two of you and on a number of occasions you resorted to physical violence, including the use of a knife.
On 6 March 2014, you punched Mr Berias in the mouth, knocking out a tooth. His close friend Dion Baines took you to hospital because you had cut your hand badly in the process. In mid-March 2014, you were waving a knife around during a dispute and cut Mr Berias on the wrist. On 30 March 2014, when Mr Berias came around to your house and there was an argument over a Commodore station wagon he had recently bought you, you swung a knife at him, cutting his left elbow.
The fact that the two of you were using ice during your brief relationship no doubt contributed to its volatility. And you knew that when you were affected by ice, you were a danger to others. On 5 April 2014, the day before you killed Mr Berias, you had a conversation with his friend Mr Baines at a service station, whilst Mr Berias was washing the station wagon he had bought you. You and Mr Baines were smoking ice together in Mr Berias’ or Mr Baines' truck when you said that you had to get off the ice because ‘I can't handle it and when I'm on this stuff I know I will kill someone.’ You were right.
The next evening, around 10.40 pm, you stabbed Mr Berias with a kitchen knife in the chest in the course of an argument at your home in Yarraville.
As I said, you had been using ice during your relationship with Mr Berias. You had smoked ice with his friend Mr Baines on the evening of 5 April 2014. Around 7 pm the next day, Mr Berias called Mr Baines and told him that the two of you had just ‘picked up’ some ice. I have no reason to doubt Mr Baines’ account of that call.
Further, you told the psychologist Pamela Matthews, who interviewed you on 14 November 2014 and wrote a report dated 27 November 2014 which was tendered by your counsel, that, as at the time of the killing you had ‘been up 4-5 days, no sleep, not in my right mind [...] that high.’ I cannot say with certainty when you last used ice prior to the killing – you did not specifically admit to the psychologist that you used on the evening of 6 April 2014 - but I find, to the criminal standard, that your offending was connected to your substance abuse. That is an aggravating factor because you knew that ice exacerbated your tendency to be violent, of which I will say more later.
What you were arguing about late on the evening of 6 April 2014 and what exactly happened during the argument leading up to you stabbing Mr Berias is uncertain. Neighbours heard yelling but not the details of what was said. You gave varying accounts after the incident, which make you an unreliable historian. You suggested, amongst other things, that Mr Berias stabbed himself or that you stabbed him in self-defence.
An autopsy was conducted on Mr Berias on 7 April 2014. The cause of death was described as ‘a single stab wound to the chest.’ There was fresh bruising to the back of Mr Berias' right hand which according to the pathologist, could have been sustained during the adoption of offensive or defensive type measures. The toxicologist's report noted that Mr Berias had methylamphetamine and amphetamine in his system.
On 7 April 2014, approximately 10 hours after the stabbing, you underwent a forensic physical examination with your consent. The forensic registrar observed a fresh ‘1 mm laceration to the inner aspect of the lower lip’ and remarked that it ‘could have occurred due to external blunt force forcing the lip against the teeth or … by you biting the inside of your mouth.’ Scratch abrasions to the back of your right hand and outer aspect of your right arm were noted and the forensic registrar opined that they could have occurred within the time frame of the fatal incident the night before.
On 8 April 2014, whilst in custody, you spoke over the phone to your former partner's mother, Nicole Reichelt, whom you call ‘Mama.’ According to her, you said that you slashed Mr Berias because you wanted him to leave you alone. You did not mention any violence on his part towards you.
What is clear is that by your plea of guilty, you acknowledge that you stabbed Mr Berias and that you had no justification for doing so, that you were not acting in lawful self-defence.
Impact on victims
Mr Berias was only 34 years old when you killed him. I have received victim impact statements from his parents, siblings and young nieces and nephews. James Berias was a much loved and loving son, brother and uncle. His family is devastated by his death. He is sorely missed, and the loss is felt not only by his family. I quote from the victim impact statement of his sister Leanne:
Organising James’ funeral wasn't easy, but when my siblings and I were carrying him down the aisle of the church on that day, passing 1,000 people, if not more, it showed me just how much James meant to everyone, not just to his family, but to the entire community. He in some way or another had touched the hearts of so many people.
Antecedents
You were 21 at the time of the offence and are now 22, having been born on 12 September 1992.
You have a number of prior court appearances for criminal offences, commencing in the Children's Court when you were 16. Between 2008 and 2010, you had four court appearances in the Children's Court for a total of 29 offences, including violent offences such as recklessly causing injury, attempted armed robbery, armed robbery, assaulting police and threatening to inflict serious injury. The most serious sentence you received in the Children's Court was probation. Your prior in the Children's Court for threatening to inflict serious injury involved you grabbing some butter knives and threatening to stab DHS workers if they did not get out of your way.
Because the above mentioned priors are Children's Court priors they will not count against you as adult priors do. A different view is rightly taken of offending when an offender is immature. The Children's Court priors deserve mention however because they are consistent with a troubling tendency – namely, a tendency to violence and a tendency to resort to knives – that emerges more clearly from your personal history, to which I will turn in a moment. It is a tendency that makes specific deterrence – that is, imposing a punishment that will deter you in the future from such conduct – an important consideration.
For the sake of completeness, I note that you have three court appearances in the Magistrates' Court for a total of 11 convictions, but mostly for motor vehicle related offences. I do not attach any significance to your Magistrates' Court priors.
Personal History
As I said, you were born on 12 September 1992. In relation to your early life I gained most assistance from a 2008 Children's Court Clinic report by psychologist Dr Cattapan, which was based not only on information supplied by you, but also by your parents and other interested parties.
When you were only 2, your mother noticed that you seemed different to other 2 year-olds. When you were 4, you were diagnosed by a paediatrician with attention deficit hyperactivity disorder (‘ADHD’) and placed on stimulant medication. At this time you were reported to be hyperactive and had difficulty socialising with other children, whom you would sometimes bite.
When you were 6, your parents separated. Your father had a drinking problem and was sometimes physically violent towards your mother. He spent time in gaol. Your mother came to realise that she coped better when your father was in gaol. You and your brother and sister remained living with your mother who re-partnered. She went on to become a registered nurse.
When you were 12, you left home. According to Dr Cattapan's report, you said you left home because you were ‘uncontrollable, hurting people, abusive, fighting with my stepdad, running away.’ By this time you were on the anti-psychotic drug Risperidone to reduce your aggression, having been diagnosed with a conduct disorder, ADHD and dysthymia (i.e. persistent low moods). On occasions you would self-harm.
From the age of 12 until about 14, you had stints in foster care but you also lived with your father at times throughout that period. Your father had stopped using alcohol but had graduated to heroin and speed and was in a relationship with a woman, I am told a prostitute, who was also a heavy drug user. Your father continued to receive gaol sentences from time to time. In 1999, he was diagnosed by Forensicare with schizophrenia and also put on Risperidone.
From around the age of 12, your own substance abuse problems commenced. You drank, used cannabis daily and chromed. At times you wanted to return to your mother’s home but she would not allow you to use cannabis in her home. In your teens you also tried ecstasy and speed but did not like the effect of those drugs apparently.
You completed Year 9, having attended multiple primary and secondary schools. You explained to Dr Cattapan in 2008 that your frequent changes of school were related to your mother's changes of employment and being expelled for fighting. In Ms Matthews’ report she says that your full score IQ is 84, placing you at the 13th percentile; that is, the low average range of intelligence.[1]
[1]Report of psychologist, Ms Pamela Matthews, dated 27 November 2014 (‘Matthews’) 6.2.
When you were about 16, you commenced a relationship with Ben Lang, who is about a year older than you. You and Mr Lang have had two daughters, Ayla-Mae (born 18 September 2009) and Annabelle (born 21 March 2013), both of whom are now being cared for by your mother.
So you were just 17 when you became a mother yourself, and you were 20 when you had your second child. The relationship between you and Mr Lang was, to say the least, volatile. Both of you abused drugs. Both of you were violent towards each other. I have read numerous police LEAP reports about police attending your home when domestic disputes broke out. It appears on one occasion Mr Lang broke your eye socket. Mr Lang has also served time in gaol.
Regarding the violence perpetrated by you on Mr Lang, a report from a mental health service called Orygen Youth Health dated 16 June 2014 notes that you told a psychiatrist in 2010 that you ‘put Ben in hospital on two occasions – having once stabbed him and on one further occasion when [you] inflicted an injury to his finger - in retaliation to his aggression towards [you].’[2] This accords with the statement in the depositions from Mr Lang's mother, which says you were violent towards Mr Lang during the relationship, including using a knife.[3]
[2]Depositions 191.
[3]Depositions 59.
Unfortunately, your recourse to knives in domestic disputes is not just a recent phenomenon.
During your relationship with Mr Lang, your cannabis use was ongoing. Psychologist Pamela Matthews notes that subsequent to the birth of Annabelle, you also began using a point of methylamphetamine a day.[4]
[4]Matthews 4.5.
In early 2014, it appears that Mr Lang was in prison but the dramas in your life did not abate. According to a report from your GP, Dr Ciaran Laughlin, he began treating you for mental health problems around February 2014 when you came to him complaining of worsening anxiety. He placed you on anti-anxiety and anti-psychotic mood stabilising medication. He also wanted to involve a psychiatrist in your treatment, as did you.
It was also in February 2014, as I have already mentioned, that you struck up a relationship with James Berias.
On 4 March 2014, Dr Laughlin referred you to Headspace to see a psychiatrist but the referral was not taken up.
On 16 March 2014, your house burnt down and you lost your dog.[5] You were depressed. You were using 2 to 3 grams of cannabis a day and abusing alcohol.[6] A report from Orygen Youth Health (‘Orygen’) dated 16 June 2014 records that around mid-March that year you were paranoid, entertaining thoughts of self-harm and harming others,[7] and that you were seeking psychiatric help.
[5]Ibid 1.7.
[6]Ibid 4.4.
[7]Ibid 5.3.
On 18 March 2014, your GP referred you to Orygen to see a psychiatrist. This proved to be an ongoing source of frustration for you as it appears that Orygen took the view that you should be referred off to a psychologist or counsellor, contrary to your wishes.
In late March 2014, tensions between you and Mr Berias escalated.
Between 25 March and 29 March 2014, Mr Berias provided you with funds to purchase a Commodore station wagon for $6,700. The car was put in your name. After he bought you the car, it seems that Mr Berias came to feel that you were ignoring him and just using him, at least that is the feeling he conveyed to his close friend Mr Baines.
On 27 March 2014, you and your daughters moved into a new home in Yarraville.[8]
[8]Ibid 5.3.
On Saturday 29 March 2014, you took possession of the Commodore station wagon.
On Sunday 30 March 2014, Mr Berias attended your new home late in the evening and there was a dispute over the car. A neighbour, Gary Leslie, saw a male banging on the front door of your home. He heard him say ‘[i]f you don't give me the car I’m gonna run you and the kids off the road and make sure youse die.’[9] Apparently Mr Berias thought the car in question had been damaged. A neighbour, Shay Nelson, heard an argument between a male and female over damage to a car that had been recently acquired. The male was yelling about who would pay for the damage. Mr Nelson could see a car, a Commodore station wagon. He heard the male threatening to burn the female’s house down.[10] A neighbour, Crystal Cutlack, overheard the male saying ‘something about how her last house got blown up’ and saw him kick a car.[11] This was not the Commodore, but your Mazda. Raelene Cutlack, Crystal's mother, heard noises like someone hitting a car and a male yelling about ‘the biggest junkie in the street’ and also ‘if you don't give the money then I am taking the car.’[12]
[9]Depositions 15.
[10]Depositions 9.
[11]Depositions 50.
[12]Depositions 52.
The police attended. Mr Berias was bleeding from the left elbow. He told the police that you had cut him with a knife to the left elbow.[13] I note at this point that according to Mr Lang’s mother, whom you had dinner with on 5 April 2014, you told her that you had stabbed Mr Berias during an argument over a car and money.
[13]Depositions 206.
On the night of the car incident, a Family Violence Safety Notice[14] was given to Mr Berias and he was subsequently interviewed by police regarding criminal damage to your Mazda. Police had observed a dent to the rear left quarter panel of your Mazda.[15] Mr Berias denied damaging the car. You made a statement alleging that he had caused the damage.
[14]Depositions 249.
[15]Depositions 209.
On 31 March 2014, an Interim Intervention Order[16] was obtained on your behalf against Mr Berias[17] even though you did not wait around for the actual hearing of your case.
[16]Depositions 253.
[17]Matthews 6.3.
On 2 April 2014, you saw one of Orygen’s psychiatric registrars for an assessment but you did not the meet their criteria.
On 5 April 2014, you saw your GP and expressed your unhappiness that Orygen was encouraging you to see a psychologist rather than their psychiatrist.
On 5 April 2014, in the evening, as I have already mentioned, you also saw Mr Baines and Mr Berias at a service station. This was when you smoked ice with Mr Baines in the truck and told Mr Baines you had to get off ice or you would kill someone.
On 6 April 2014, at about 7 pm, Mr Baines and Mr Berias spoke over the phone and Mr Berias said that he and you had just ‘picked up’ (that is, scored ice).[18] Later that night, around about a quarter to eleven, you stabbed Mr Berias, killing him.
[18]Depositions 44.
Analysis
You have had a very difficult life. It should be apparent from my brief account of that life that, especially in your early years, there were problems not of your own making which no doubt contributed to your long history of substance abuse and mental problems. Your circumstances between the age of 12 and 14 were particularly unfortunate. And you have been a victim as well as a perpetrator of domestic violence.
I accept that your mental health was deteriorating in early 2014 and, recognising this, you were making genuine efforts to seek professional help. The fact that your house burned down in March 2014 added significantly to your levels of anxiety and volatility. Your mental health was not assisted by your ongoing substance abuse, including the use of ice.
Ms Matthews expresses the opinion that in the 12-month period leading up to the stabbing, you were subjected to intense levels of psychosocial stress and you were ‘suffering from Persistent Adjustment Disorder with mixed disturbance of emotions and conduct at the time of the offence.’[19] I accept that opinion[20] and consider that it somewhat reduces your moral culpability.
[19]Matthews 8.4.
[20]and her opinion that you have a Borderline Personality Disorder; see Matthews 7.3.
As conceded by the prosecution in its submissions, some reduction in your sentence is warranted, having regard to the principles concerning the sentencing of offenders suffering from a mental illness. The fact that you were actively seeking assistance for your mental health problems also counts in your favour. But your continuing use of ice when you knew that it contributed to you being violent is a circumstance of aggravation, as your defence counsel recognised.
I also accept that the problems in your relationship with Mr Berias were not all of your own making. What the neighbours heard of the conflict between you and Mr Berias on the night of 30 March 2014 does not reflect well on Mr Berias. Further, your desire to get off ice was not assisted by the fact that Mr Berias was also an ice user.
You are still young. Rehabilitation is an important consideration when sentencing a young offender such as you, even if the seriousness of this offence must temper the reduction in sentence you might otherwise receive because of your age. If you are rehabilitated, the community as well as you benefits.
Although you have a long history of substance abuse and volatile relationships, I consider that you have reasonable prospects of rehabilitation. I have known many young offenders with far worse criminal records than you. You have not previously undergone a prison sentence. Hopefully, the time spent in gaol will help you to break the cycle of drug abuse and domestic violence.
You have a supportive mother who is currently looking after your two daughters, who are now aged 5 and almost 2. When you are eventually released from custody, you have responsibilities to them and a powerful motive to set your life on the right path. I take into account that your time in custody will be more burdensome because you are separated from your daughters when they are still so young.
Your attitude to gaol, as recorded by Ms Matthews, is encouraging: she writes that you are currently working in horticulture and undertaking courses in literacy and numeracy, ‘trying to make the best out of a bad situation … Insight was present.’[21]
[21]Matthews 5.6.
You pleaded guilty to this offence at an early stage. The committal hearing was conducted on the papers. No witnesses were called and you pleaded guilty to manslaughter before the committing magistrate. I accept that your plea of guilty is evidence of some remorse and you should receive a discount for more than just utilitarian considerations, such as the saving of time and money that a plea of guilty occasions. You told Ms Matthews that ‘I live with the guilt of what I have done every day ... I don't know how to tell Mr Berias’ family how sorry I am.’ The prosecution took me to some letters you wrote to Mr Lang after the incident, on 15 April 2014 and 15 July 2014. There is no remorse shown in those letters but since then you have accepted responsibility and, with that acceptance, exhibited some remorse.
The sentence I impose on you must give significant weight to specific and general deterrence - that is, deterring you and deterring others from domestic violence. Even though I have found you have reasonable prospects of rehabilitation, specific deterrence assumes prominence because of your history of violence and use of knives.
As the cases show, manslaughter by unlawful and dangerous act can be committed in many varying ways. There is a broad spectrum of such offences. I consider that this offence falls in the middle to upper range of the spectrum, as it involved the use of a large knife in a domestic dispute and the victim was stabbed in the chest.
I have been referred to a number of manslaughter cases to assist me with the range of sentences for an offence such as this, and have also considered other cases.[22] The case of Kells v R[23] bears many similarities to your case.[24] In that case, the female offender and male victim had been in a relationship for approximately five months. Their relationship was characterised by frequent arguments and mutual abuse. They had separated several times but had always reconciled.
[22]Director of Public Prosecutions v Kerr [2014] VSC 374; Director of Public Prosecutions v Bryan [2014] VSCA 54; Mocenigo v R [2013] VSCA 231; Kells v R [2013] VSCA 7; Director of Public Prosecutions v Pennisi [2009] VSCA 322; R v Bangard (2005) 13 VR 146; [2005] VSCA 313.
[23][2013] VSCA 7. See also the cases summarised in the Judicial College of Victoria Sentencing Manual at Chapter 27.13.1.
[24]The following summary is taken from the Sentencing Manual at 27.13.1.
The night before the offence, neighbours reported hearing loud and violent arguments between them. Several police units attended the house and the nearby vicinity several times during the night. Eventually, in the early hours of the next morning, the offender left the house to stay with a friend. However, she returned to the house a short time later. The victim was not there, but returned shortly after, at which time the argument resumed.
The offender scuffled with the victim, who then entered a bedroom. The offender armed herself with a knife from the kitchen, approached the bedroom door and pushed it open to find the victim approaching her. The offender stabbed the victim in the chest, penetrating his heart. She then rang 000 and admitted that she stabbed her partner in the chest. The victim died at the scene and was unarmed at the time of his death.
Ms Kells was sentenced to eight years with a non-parole period of five years. She was aged 26 at the date of the offence. She was born to a teenage mother. She left home aged 13 when her relationship with her mother deteriorated. She moved in with her father, who she had had little contact with. Her father drank heavily and, unlike your situation, sexually assaulted her. She ceased living with him at 14. She had no contact with any family. There was cannabis use from early teens. She later used stimulants, prescription medications and opiates.
She left school in Year 10. She was unemployed, save for a 12-month childcare course and a brief time dancing. She had three children. She had previous convictions including weapons offences. She had significant borderline and antisocial traits. She had shown genuine remorse, though her rehabilitation prospects were considered poor. She pleaded guilty to manslaughter during the course of her trial for murder.
From that brief summary, it is clear that there are many similarities, but there are also dissimilarities with Kells’ case. One does not approach other manslaughter sentencing cases as precedents.[25] A sentencer is not obliged to distinguish other cases if he or she is minded to impose a sentence that is less or more than a sentence imposed in another case. But a sentencer must have regard to current sentencing practices to determine the appropriate range within which the sentence should fall, and I have done so.
[25]Hudson v R (2010) 30 VR 610, 617; [2010] VSCA 332 [31].
Sentence
For the offence of manslaughter I sentence you to imprisonment for eight years.
You must serve a minimum of six years before being eligible for parole.
I declare that you have already served 298 days of that sentence by way of pre-sentence detention.
I am required by s 6AAA of the Sentencing Act 1991 (Vic) to indicate what sentence I would have imposed but for your plea of guilty. I would have imposed a sentence of ten years and six months, with a non-parole period of seven years and six months if you had not pleaded guilty.
Finally, I make the disposal order that was sought by the prosecution in respect of the knife used in the commission of the offence.
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