R v Johnstone
[2017] ACTSC 304
•12 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Johnstone |
Citation: | [2017] ACTSC 304 |
Hearing Date: | 12 October 2017 |
DecisionDate: | 12 October 2017 |
Before: | Penfold J |
Decision: | See [14] – [19] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re‑sentence – breach of good behaviour order by further offending – driving a stolen and unregistered motorbike – possession of methamphetamine – possession of a knife – drug driving – dysfunctional upbringing – cannabis use from young age – Solaris program being undertaken in custody – residential rehabilitation after release also recommended – offender re‑sentenced – non‑parole period to end at end of Magistrates Court sentences currently being served. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 110 |
Parties: | The Queen (Crown) Michael John Johnstone (Offender) |
Representation: | Counsel Mr S McLaughlin (Crown) Ms H Russell (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) Limited (Offender) | |
File Number: | SCC 217 of 2015 |
The offences
In February 2016, I sentenced Michael Johnstone to a total of 27 months imprisonment for an aggravated burglary, two damage property offences, one theft and one offence of riding in a motor vehicle dishonestly and without consent. The sentence was backdated to account for pre-sentence custody and was suspended after 11 months had been served, subject to a good behaviour order for 18 months. That good behaviour order would have expired last month.
Before that, however, Mr Johnstone committed two new series of offences that breached the good behaviour order.
On 4 August 2016, he was arrested by police who had observed him driving a stolen and unregistered motorbike. He was found to be in possession of a small quantity of methamphetamine and a knife and, when tested, also had methamphetamine in his system. Those events gave rise to a number of separate charges, to which Mr Johnstone pleaded not guilty. As a result of adverse findings about the lawfulness of Mr Johnstone's arrest, a number of the charges were dropped, but the five charges arising from the facts I have outlined were found proven in the Magistrates Court, and yesterday (11 October 2017) Mr Johnstone was sentenced by Magistrate Cook to a total of 10 months imprisonment, all to be served in full-time custody.
After his arrest in August 2016, Mr Johnstone remained in custody until granted bail on 1 November 2016. He failed to appear in the Magistrates Court after that at least once, and a warrant was issued. On 6 February this year he was again arrested, on the warrant and also in relation to new offending involving obstructing police, assault occasioning actual bodily harm, unauthorised possession of a firearm and going equipped for theft, in that he had a lock-picking tool with him. He has been in custody ever since.
Mr Johnstone pleaded guilty to the 2017 charges, and was sentenced by Magistrate Theakston in August this year to imprisonment for 105 days, backdated to the date of his arrest in February in connection with those charges. That sentence had thus been completed on 21 May of this year.
The sentence imposed by Magistrate Cook yesterday was backdated 8 months to 11 February of this year to take account of Mr Johnstone's pre-sentence custody in 2016, and the continuing 2017 custody after the sentence imposed by Magistrate Theakston was completed on 21 May. Magistrate Cook's sentence will expire on 10 December this year.
That is, by my calculations, Mr Johnstone has spent about 340 days in custody since 4 August 2016, and has so far served about 349 days of the sentences that have been imposed on him this year. In other words, there has been little concurrency between the sentences for the two series of offences committed since I sentenced Mr Johnstone early last year. Given in particular Mr Johnstone's relative youth, I consider that some concurrency is appropriate between the sentences I must deal with and the sentences Mr Johnstone has served in the last few months.
Evidence
The following material is in evidence before me:
(a)a police statement of facts for the 2017 offences;
(b)a criminal history up to date immediately after my sentencing in early 2016[1];
(c)a pre-sentence report prepared in August this year from Magistrate Theakston's sentencing;
(d)a copy of my 2016 sentencing remarks; and
(e)an email from Corrective Services about Mr Johnstone's participation in the Solaris Program during his current term in the Alexander Maconochie Centre (AMC);
all of which were tendered by the prosecution. With defence counsel's consent, I also accepted from the prosecutor an oral description of the circumstances of the 2016 offences.
In my earlier sentencing remarks I have set out Mr Johnstone's background in some detail, and see no need to do so again. I note, however, that Mr Johnstone is now 23, that he had a somewhat disrupted childhood due to his parents' alcohol abuse and their medical problems, but that he now seems to have a supportive relationship with some members of his immediate and extended family. Mr Johnstone did not complete his secondary education, and is said to have low literacy and numeracy skills. He has been employed from time to time in unskilled positions.
Mr Johnstone has in the past engaged in binge drinking, but claims to have largely given up alcohol these days; on the other hand, he used cannabis for several years from the age of 14, and has been using methylamphetamine in the last two or three years.
Mr Johnstone has a significant criminal history for a man of his age, although much of it arises from breaches of good behaviour orders made in relation to relatively low-level substantive offences.
Corrections staff report that Mr Johnstone began to participate in the Solaris Therapeutic Community program in the AMC on 3 August 2017, which he is due to complete late in November. He is said to have engaged with the program to a satisfactory standard. Around the same time, it seems, Mr Johnstone began seeking places in residential rehabilitation programs in the community, and was offered a place in Benelong Haven in northern New South Wales. Counsel for Mr Johnstone says that he wishes to take up that place when he is released from custody, but the pre-sentence report also records that in August Mr Johnstone was expressing doubts about whether he would need to do this program if he completed the Solaris Therapeutic Community while in custody, and suggesting that on his release he would rather return to live with family members and seek employment.
It seems to me that if Mr Johnstone really wants to break the cycle of addiction and offending, then it would be very useful for him to reinforce what he has achieved in the Solaris Therapeutic Community by undertaking a community-based residential rehabilitation program, whether in Canberra or elsewhere.
Sentence
Mr Johnstone, please stand. I note your convictions in the Magistrates Court for two series of offences committed in breach of the good behaviour order I made early last year. Under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I cancel that good behaviour order.
Given the number and nature of the offences you have committed in breach of the original good behaviour order, it would in my view be open to me simply to impose the outstanding 16 months of the sentence I handed down last year to be served in full-time custody. However, having regard to your somewhat dysfunctional upbringing and more importantly your youth, the significance of promoting your rehabilitation, and the signs that you are yourself ready to make efforts towards that rehabilitation, I propose to re‑sentence you so as to offer you another chance to complete your sentence in the community.
Accordingly, I re-sentence you as follows.
First, I will just repeat the terms of those old sentences:
(a)for the aggravated burglary – 24 months imprisonment;
(b)for the damage property offence – 18 months imprisonment;
(c)for the second damage property offence – 12 months imprisonment;
(d)for the theft offence – 12 months imprisonment; and
(e)for the dishonestly ride motor vehicle offence – 3 months imprisonment.
That, as before, gives a total of 27 months, given the concurrency that was provided for. That will be served starting from 11 June 2016 and to expire on 10 September 2018 as follows:–
(a)for the aggravated burglary – from 11 June 2016 to 10 June 2018;
(b)for the first damage property offence – 11 March 2017 to 10 September 2018;
(c)for the second damage property offence – 11 March 2017 to 10 March 2018;
(d)for the theft – from 11 March 2017 to 10 March 2018; and
(e)for the motor vehicle offence – from 11 June 2018 to 10 September 2018.
That gives a total of 27 months running from 11 June 2016 to 10 September 2018.
I now set a non-parole period of 18 months, to run from 11 June 2016 to 10 December 2017.
Mr Johnstone, the effect of backdating to June 2016 and the non-parole period is that you will be eligible for parole in a couple of months, in fact, on the same day that your Magistrates Court sentences finish. That means that you should make your parole application as soon as possible, and that will give you time to make some proper plans for residential rehabilitation ideally, or whatever else you plan to do after you are released. It will also give you a real incentive to comply with whatever conditions are imposed on your parole. It will leave you, assuming you are released on parole on 10 December, with nine months still to serve, so a nine-month parole period. You would understand, I think, that if you do not comply with your parole conditions, you might finish up serving some or even all of that nine months in full-time custody. So that is a real incentive to cooperate with your parole supervision and with what you are expected to do.
The nine months in particular should, I think, give you plenty of time to undertake a community-based residential rehabilitation program if you are still planning to do that. I would have to say to you, I think that would be very valuable, because I think you will find that it may be relatively easy to cooperate and to comply with what people tell you to do while you are in the prison, but it is not nearly so easy when you have to make the decisions yourself, and to start by moving from the prison environment rehabilitation centre more or less straight into another rehabilitation centre would be very helpful in reinforcing what you have learnt.
If you have any particular questions about the effect of the orders I have made, you might be able to ask Ms Russell after I finish, or the court officials.
You may sit down.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: 2 November 2017 |
[1] Noting that the offence of riding in a motor vehicle dishonestly and without consent for which I sentenced Mr Johnstone in 2016 has been mistakenly entered as having been before me in 2013, and is accordingly wrongly located in the criminal history.
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