R v Johnstone
[2016] ACTSC 112
•18 February 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Johnstone |
Citation: | [2016] ACTSC 112 |
Hearing Dates: | 4 February 2016, 5 February 2016 |
DecisionDate: | 18 February 2016 |
Before: | Penfold J |
Decision: | See [35] – [41]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – dishonesty offences – “ram-raid” style aggravated burglary – damage property – theft – pleas of guilty – offending linked to use of illicit drugs – significant criminal history – parity – prospects of rehabilitation – sentence suspended after 11 months. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), ss 308, 312, 318(2), 403 |
Parties: | The Queen (Crown) Michael John Johnstone (Offender) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr D Rutherford (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) Ltd (Offender) | |
File Number: | SCC 217 of 2015 |
The offences
Michael Johnstone has pleaded guilty to five offences arising out of a single incident, as follows:
(a)one aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 20 years;
(b)two damage property offences, contrary to s 403 of the Criminal Code and carrying a maximum penalty including imprisonment for 10 years;
(c)one theft, contrary to s 308 of the Criminal Code and carrying a maximum penalty including imprisonment for 10 years;
(d)one offence of dishonestly and without consent riding in a motor vehicle, contrary to s 318(2) of the Criminal Code and carrying a maximum penalty including imprisonment for five years.
The incident
The incident from which these charges arose took place in late March 2015.
The following description of the incident is drawn from the agreed statement of facts:
Between 8:00pm on 30 March 2015 and 5:00am [the next morning], a silver Subaru Impreza, [belonging to a Mr Louis], was unlawfully taken from Coranderrk Street, Reid.
At 5:06am on 31 March, [that second day], the offender, Mr Johnstone, rode in the vehicle which was being driven by Dylan Bowler. The vehicle was driven through the doors of the Gungahlin Shopping Centre adjacent to the First Choice Liquor store [in Gungahlin].
The vehicle proceeded down an internal corridor before driving through another set of internal doors and into the main area of the shopping centre.
The offenders then drove towards the Diamond Rings Designs store before reversing the car through the security roller door. Both offenders then entered the jewellery store before using a brick and a work boot to smash open glass cabinets containing jewellery. They took $29,083.07 worth of jewellery, including rings, necklaces, chains, earrings, pendants and display cases. They caused approximately $9000 worth of damage.
Both offenders covered their faces and wore gloves during the aggravated burglary. Mr Johnstone cut himself during the commission of the aggravated burglary and his blood was recovered from within the jewellery store.
The offenders then drove through the centre and attempted to leave via the same doors they had smashed to make their entry, however they were hindered from doing so given the damage to the doors. They then turned the vehicle around and drove back through the centre before ramming a third set of glass doors and exiting the centre via Gungahlin Place East.
They caused approximately $50,000 worth of damage to the shopping centre.
Later [that] day, police executed a search warrant at [the residence of Mr Bowler's sister]. At that location, police located multiple items from the Diamond Rings Designs store, including jewellery and display cases.
Subsequently, analysis was conducted on blood which was located within the Diamond Rings Designs store. That analysis provided extremely strong support for the proposition that the blood was that of Mr Johnstone.
Mr Johnstone was arrested just over a week after the offences, on 9 April 2015, and has remained in custody since then. He initially pleaded not guilty in April 2015, and was committed to the Supreme Court for trial in October 2015, pleading guilty four weeks later and before a trial date was set, after some negotiations between the parties. Those pleas of guilty came later than those entered by his co-offender, Mr Bowler, who had pleaded guilty in the Magistrates Court less than a month after the offences were committed. However, the later entry of pleas of guilty reflected, as well as some delays on the part of the prosecution, the dropping of a charge of arson in relation to the vehicle used in the offences, which the Crown now accepts did not involve Mr Johnstone. The Crown concedes that Mr Johnstone's pleas of guilty should be accepted as relatively early pleas.
Evidence
As well as the statement of facts, the following material is in evidence before me:
(a)Mr Johnstone's criminal history;
(b)a pre-sentence report;
(c)a CADAS report;
(d)the sentencing remarks made when Mr Bowler was sentenced for offences arising out of the same incident but also for a number of other offences;
(e)Mr Bowler's criminal history; and
(f)a table prepared by counsel setting out Mr Bowler's sentences for the offences committed with Mr Johnstone
all of those documents being tendered by the prosecution.
The defence did not provide any written material, but Mr Johnstone gave oral evidence.
Objective seriousness
In considering the objective seriousness of the offence, I have had regard to a number of matters.
All the offences are serious but the aggravated burglary is regarded as the most serious, as shown by its very high maximum penalty. This particular example of aggravated burglary, what I believe is known as a ram-raid, is highly dramatic and potentially dangerous, including for the offenders, but I do note that the damage caused by the use of the vehicle as a weapon is addressed in this case through the separate damage property charges.
The statutory aggravating factor is the commission of the offence in company.
I can identify no mitigating features of this offending.
In his oral evidence, Mr Johnstone expressed remorse for his offences both because of the impact of the offences on the owners of the relevant property and also because of the impact of his subsequent incarceration on his partner, who he said was living in a refuge and finding it difficult to cope without him. Mr Johnstone said that he had been finding it very hard to sleep because of how he feels about what he has done. Indeed, Mr Johnstone said that the two incidents recorded against him since he entered the AMC had both involved him being in possession of someone else's prescription medication that he was using in the hope of improving his sleep.
Mr Johnstone told the pre-sentence report author that he didn't remember the offences and suggested that they were committed while he was affected by illicit substances. The CADAS report noted Mr Johnstone's claim to have been smoking methamphetamines (which he says he first tried during an earlier stay in the AMC) for a period of around 10 weeks leading up to the offences.
Clearly the offences were to some extent premeditated, although if Mr Johnstone's oral evidence attributing his offending to his use of “meth”, and what he told the pre-sentence report and CADAS authors about his prior drug use and his mental state is accepted, it may be that any premeditation took place in the mind of his co-offender, Mr Bowler.
The statement of facts records that nearly $60,000 worth of damage was caused to the shopping centre and to the jewellery store, and that jewellery worth about $29,000 was taken, although it seems that some of it was recovered. No reparation order is sought; this probably reflects a recognition that neither Mr Johnstone nor his co-offender is likely to be able to pay for the loss in the foreseeable future.
I consider that all five offences are of mid-range seriousness; however, a number of considerations that I shall now mention mean that the sentences will finish up rather more lenient than that assessment might suggest.
Subjective circumstances
First, as is of course required, I have also had regard in this sentencing to Mr Johnstone's subjective circumstances.
Mr Johnstone was 20 years old at the time of the offences, and is now 21. His criminal history is very long, but while there are many offences recorded, mainly committed in the ACT, there are also numerous entries evidencing Mr Johnstone's repeated breaches of good behaviour orders imposed in respect of substantive offences. The substantive offences [include a number of burglaries, thefts, and motor vehicle offences, and one damage property offence].
Mr Johnstone gave evidence that all the dishonesty offences were committed before he spent four months in rehabilitation (a matter to which I shall return), and that there had been no further offending involving dishonesty offences until the current ones.
The pre-sentence report provides the following background information about Mr Johnstone
Mr Johnstone is an Aboriginal man who was born in Griffith, NSW. He relocated to Canberra with his parents and sister as a child. Mr Johnstone described his childhood as normal, and reported his parents and extended family were always there for him. Upon verifying this information, it was discovered that Mr Johnstone's upbringing was marked by his parents' alcoholism, and he often relied on support from his extended family.
Mr Johnstone stated he had a close relationship with his grandmother, auntie and cousins. Service records indicate that his partner had been the only visitor Mr Johnstone had since his remand. He has been in a relationship with his partner, who is also Aboriginal, for three years. He described their relationship as supportive and loving. He expressed feelings of guilt for not being with her due to his period of remand. Similarly, his partner described their relationship as strong and stated she envisaged a future together.
...
Mr Johnstone reported having a strong connection to his Aboriginal culture and heritage. He said that his extended family encourage and promote this connection. His aunt confirmed this, and offered practical and emotional support should Mr Johnstone be released into the community. Furthermore, Service records reflect that Mr Johnstone has engaged with Winnunga whilst in custody.
Prior to his current period at the AMC, Mr Johnstone resided with his parents and aunt. His aunt reported she would be open to supporting Mr Johnstone should he be released.
Mr Johnstone reported he had never held employment. Despite this, his aunt recalled he previously worked as a furniture removalist; however the length of employment could not be verified.
Mr Johnstone left high school in Year 9. A previous Pre Sentence Report ... described his attendance as sporadic, with him attending 10 percent of his classes. Mr Johnstone commenced his Year 10 certificate through the Canberra Institute of Technology in 2012; however he did not complete [it]. [He] has poor numeracy and literacy skills.
Mr Johnstone reported he would initially be in receipt of a Centrelink benefit if released to the community. He hoped to gain employment, however, is unsure what type of work he would like to do.
Mr Johnstone said he generally keeps to himself. His partner confirmed this information, stating that he no longer wants to spend time with his anti social peers.
Mr Johnstone has a significant history of illicit substance use. He reported first experimenting with cannabis at age 14, which developed into daily consumption of the substance by the time he was 16 years old. [He] attended [a rehabilitation program] to address his substance use ... Mr Johnstone reported that the program provided him with skills and knowledge surrounding his substance use, which resulted in a period of abstinence from cannabis. Upon his entry into the AMC, Mr Johnstone was subject to urinalysis testing. The results of this test returned positive for cannabis.
Mr Johnstone has a brief history of methamphetamine use, which commenced at the approximate age of 18 years. He stated this use was social. The Drug Abuse Screening Tool (DAST-10) was conducted during an interview with Mr Johnstone, which assessed his level of drug use related risk over the past 12 months as severe.
Service records confirmed Mr Johnstone has commenced the SMART Recovery Program while in custody. This program is for people who have a substance abuse problem, and aims to equip participants with appropriate problem solving skills.
Mr Johnstone advised that he has no medical, emotional, or mental health concerns.
In oral evidence, Mr Johnstone expressed a wish to obtain work in the construction industry. He listed a number of preliminary occupational qualifications that he has achieved in the last few years.
Rehabilitation
As to rehabilitation, Mr Johnstone gave evidence of spending four months in [a] rehabilitation program. He said that after completing the ... program he had abstained from drugs and alcohol for [some time], until his Nan died and "I just got back on the bongs from there".
While in custody, Mr Johnstone has been receiving phone counselling in relation to drug and alcohol abuse, and doing anger management and SMART Recovery courses. He has also been pursuing admission to a residential rehabilitation program, and has had a phone assessment for Oolong House, but has not been able to seek admission because of uncertainty about when he might be released. Mr Johnstone had not been able to enter the Solaris rehabilitation program within the AMC because he was not a sentenced prisoner.
Mr Johnstone said that in the community he expected to be supported by various family members, including his partner and aunties and uncles.
I note also the submission made by counsel for Mr Johnstone that “throughcare” support will be available to him from the Aboriginal Legal Service when he is released.
Other sentencing considerations
These are offences that require general deterrence, and there may even be circumstances in which general deterrence might be effective. I am satisfied that Mr Johnstone also requires personal deterrence, given his offending history. I also note that although Mr Johnstone has given evidence of a commitment to rehabilitation, of his efforts to find a place in a residential program, and of his acceptance of rehabilitation support in custody, there is still a long way to go and most of the hard work is ahead of him.
Parity
Finally, in sentencing Mr Johnstone I need to consider the sentences imposed on his co-offender for the offences arising out of the incident that involved Mr Johnstone.
His co-offender, Dylan Bowler, was 18 years and 3 months old at the time of the joint offences. He was sentenced for those offences at the same time as being sentenced for 22 other similar offences, all but one committed in the three months before the Gungahlin ram-raid. As well as several other burglaries and thefts at business premises, Mr Bowler had taken part in a similar ram-raid at another shopping centre on the previous day.
Mr Bowler's prior criminal history was, however, relatively insignificant.
The statement of facts identifies Mr Johnstone as the passenger in the car that was driven into the shopping centre by Mr Bowler and used to force entry into the jewellery store. The goods from the jewellery store were later found at a home associated with Mr Bowler. Apart from those matters, the statement of facts does not distinguish the actions of the two men.
Mr Johnstone is a bit more than two years older than his co-offender, Mr Bowler. On the other hand, the fact that Mr Bowler had, on the day before the current offences, committed a very similar set of offences (involving another ram-raid) with another co-offender suggests to me that Mr Bowler was the initiator of the offences and Mr Johnstone at most an enthusiastic participant.
Mr Bowler was sentenced to imprisonment as follows:
(a)for the aggravated burglary – 24 months;
(b)for the first damage property offence relating to the shopping centre itself – 18 months;
(c)for the second damage property offence relating to the jewellery store – 12 months;
(d)for the theft – 12 months;
(e)for the motor vehicle offence – three months.
Those sentences were structured to produce a total term of two and a half years. Not only was there considerable concurrency among those sentences, there was also more or less substantial concurrency between one or more of these sentences and seven of the other sentences imposed on Mr Bowler for different offences.
In determining what is required in this case by the parity principle, I have taken account in particular of the following matters:
(a)that Mr Bowler is significantly younger than Mr Johnstone;
(b)that Mr Bowler had a troubled childhood involving among other things exposure to domestic violence, while Mr Johnstone's childhood seems to have been affected by his parents' alcoholism, and he had to rely heavily on his extended family;
(c)that Mr Bowler seems to have been the instigator of Mr Johnstone's current offences, appears to have finished up with the stolen property, and was solely responsible for the subsequent destruction of the vehicle used in the offences;
(d)that Mr Bowler had a far less significant criminal history than Mr Johnstone before being sentenced for the offences committed with Mr Johnstone; Mr Johnstone had a significant criminal history, [but] there had been an extended period without relevant offending [before] the current offences;
(e)finally, that because Mr Bowler was sentenced for a large number of other offences at the same time, he also received the benefit of substantial further concurrency between sentences for the Gungahlin offences and some of his other sentences.
In total, that suggests to me that Mr Johnstone should probably receive a slightly shorter total sentence than Mr Bowler received for his role in the Gungahlin offences, to be achieved by a slightly greater degree of concurrency between the individual sentences, and a full-time custodial period that reflects, as a proportion of the total sentence, that set for Mr Bowler.
Sentence
Mr Johnstone, please stand. I record convictions for one offence of aggravated burglary, two damage property offences, one theft and one offence of riding in a motor vehicle dishonestly and without consent.
I now sentence you as follows:
(a)for the aggravated burglary, to 24 months imprisonment reduced from 30 months for your plea of guilty, to start from 9 April 2015;
(b)for the first damage property offence, to 18 months imprisonment reduced from 23 months, to start from 9 January this year;
(c)for the second damage property offence, to 12 months imprisonment reduced from 16 months, to start also from 9 January this year;
(d)for the theft, to 12 months imprisonment reduced from 16 months, also to start from 9 January this year;
(e)for driving in a motor vehicle dishonestly and without consent, to 3 months imprisonment reduced from 4 months, to start from 9 April 2017.
That gives a total sentence of 2 years and 3 months.
The sentence will be backdated to 9 April 2015, when you were taken into custody, and so it will run until 8 July 2017.
By reference to the non-parole period set for Mr Bowler, it is appropriate that you are released in the near future, and I will therefore suspend your sentence with effect from 9 March this year, leaving 16 months of your sentence outstanding. I hope that you will use some of the time before you are released to make more definite arrangements for rehabilitation support and such things as accommodation.
I order that when you are released, you sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from when you are released.
The good behaviour order is subject to the conditions that for such a period not exceeding 18 months as Corrective Services considers necessary:
(a)you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General, or delegate; and
(b)that you undertake such counselling, courses, programs or treatments as directed by your supervising officer especially, but not limited to, directions given in relation to drug rehabilitation.
You will be given a written copy of the good behaviour order and it will be read to you by the Corrections officials. But in short, it means that for 18 months after you are released, you need to keep out of trouble, keep in close contact with Corrective Services and do as your supervisor tells you. If you commit another offence during that time, or if you otherwise breach your undertaking, you may find yourself back before this Court to be re-sentenced for these offences. Depending on exactly how you breach the undertaking, and especially if there has been more of this kind of offending, you could well find yourself serving some or all of the remaining part of your sentence, and that is another 16 months, in full-time custody.
If you have any particular questions about that order I have just made, please ask the court officials or Mr Rutherford.
Mr Johnstone, you have shown that you can benefit from rehabilitation programs and that you can largely keep out of trouble when you are not abusing illegal drugs. I hope that you will make up your mind to do whatever it takes to avoid lapsing back into drug use and offending, and to stick to that, because I am sure that your time in the AMC has convinced you that you would rather be outside.
You may sit down.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: David Hoitink Date: 7 June 2016 |
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