R v Johnstone (No 2)

[2019] ACTSC 39

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Johnstone (No 2)

Citation:

[2019] ACTSC 39

Hearing Date:

1 February 2019

Decision Date:

1 February 2019

Before:

Mossop J

Decision:

See [25]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – joint indictment – co-offenders sentenced at the same time for aggravated robbery and ride in a stolen vehicle – offender entered premises with a sawn-off gun, demanded money and struck two residents with the butt of the gun – assault occasioning actual bodily harm – transfer charge of common assault – very poor criminal history – general and specific deterrence – denunciation – hope for rehabilitation as offender still a young man – custodial sentences

Legislation Cited:

Crimes Act 1900 (ACT), ss 24, 26

Criminal Code 2002 (ACT), ss 310, 318(2)

Cases Cited:

Barrett v The Queen [2016] ACTCA 38

R v Booth [2017] ACTSC 191

R v Johnstone [2018] ACTSC 316

R v Keenan [2014] ACTSC 342

Parties:

The Queen (Crown)

Michael Johnstone (Offender)

Representation:

Counsel

C Muthurajah (Crown)

J Moffett (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Aboriginal Legal Service NSW/ACT (Offender)

File Number:

SCC 162 of 2018

MOSSOP J:

Introduction

1.           On 8 November 2018, Michael Johnstone was found guilty by a jury of the following offences:

(a) one count of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT);

(b) one count of ride in a stolen motor vehicle contrary to s 318(2) of the Criminal Code; and

(c) one count of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT).

2. On 12 December 2018, I found him guilty of a related transfer charge of common assault contrary to s 26 of the Crimes Act: see R v Johnstone [2018] ACTSC 316.

3.           Also convicted at trial was Garang Dau Deng, who is being sentenced at the same time as Mr Johnstone.

4.           The maximum penalty for aggravated robbery is 25 years imprisonment or a fine of $375,000 or both.  The maximum penalty for driving or riding in a stolen motor vehicle is a fine of $75,000, imprisonment for five years or both.  The maximum penalty for assault occasioning actual bodily harm is five years imprisonment.  The maximum penalty for assault is two years imprisonment.

Facts

5.           Mr Johnstone entered residential premises at Flack Street in Holt holding what appeared to be a sawn-off gun and demanded money.  There is no evidence that the gun was loaded, although there is no reason why the victims of the robbery would have perceived it not to have been.  Mr Johnstone struck Ms Renae Hallewell in the mouth with the butt of the gun.  This caused her mouth to bleed.  He then struck Mr Brandon Cutujar in the forehead with the butt of the gun causing a laceration to his forehead which began to bleed.  Mr Cutujar and Ms Hallewell wrestled with Mr Johnstone, getting him out the door and part of the way down the front stairs.  Mr Darren Mewburn, who had temporarily left the premises, returned and wrestled with Mr Johnstone at the base of the stairs until Mr Dau Deng, appeared with a hammer and persuaded the residents to allow the intruder to escape.  During the melee, Mr Johnstone had been deprived of his weapon.  As Mr Johnstone, Mr Dau Deng and another person left in a getaway vehicle, Mr Cutujar threw the weapon through the back window of the vehicle.  The property stolen was approximately $300 in cash and a small quantity of marijuana.

Objective seriousness

6.           The aggravated robbery involved entry into the victim’s home.  It involved an offensive weapon.  That weapon was a firearm or what appeared to be a firearm.  The weapon was used in a frightening way which makes the offending more serious than if it was simply in the offender’s possession.  The offending conduct involved actual violence as opposed to the threat of violence.  It did not however involve any breaking in in order to enter the premises.  There was clearly some degree of premeditation and planning involved in the aggravated robbery.  Whilst not particularly sophisticated, the planning did involve obtaining a firearm and having available a getaway car.  It was certainly not impulsive or opportunistic.  The property stolen was of relatively minor value.  The gravity of the offence lies in the invasion of a home, the use of a weapon and the infliction of violence during the robbery.

7.           So far as Mr Johnstone was concerned, the aggravated robbery was in the mid range of objective seriousness for this offence.  In reaching this conclusion, I bear in mind that the assaults on Mr Cutujar and Ms Hallewell have been separately charged.

8.           So far as Mr Dau Deng’s involvement is concerned, his role was clearly subservient to that of Mr Johnstone.  He is guilty of the offence of aggravated robbery because he was knowingly concerned in it.  The practical role that he played in the offence was that he assisted with Mr Johnstone’s escape from the residents of the dwelling by coming from the car and threatening them with a hammer.  This intervention would not have happened had Mr Johnstone been able to effect his escape without interference.  It is not possible to find beyond reasonable doubt that Mr Dau Deng had the hammer in the car intending or contemplating the possibility that it be used as part of the robbery as opposed to his use of the hammer being merely opportunistic. 

9.           The offences of riding or driving a motor vehicle without consent are made more objectively serious by the fact that the vehicle was used for the purposes of further offending: R v Booth [2017] ACTSC 191 at [11]. In the present case, the riding in the motor vehicle is in the mid range of objective seriousness.

10.         The assault occasioning actual bodily harm involved Mr Johnstone striking Mr Cutujar with the butt of his gun and causing a significant and deep laceration to his forehead.  The blow was to the head of the victim and, while causing actual bodily harm of a significant nature, might readily have caused even more serious harm.  It is an offence in the mid range of objective seriousness for this offence.

11.         The assault involved Mr Johnstone striking Ms Hallewell in the mouth with the butt of the gun.  This caused her mouth the bleed but the charge is one of common assault rather than assault occasioning actual bodily harm.  Once again, the blow was to the head of the victim and might have caused more serious injury.  It is in the mid to upper range of objective seriousness for this offence.

Subjective circumstances

12.         Mr Johnstone is an Aboriginal man who was born in Griffith in New South Wales.  He is one of his parents’ two children.  His family relocated to Canberra when he was aged two.  His grandmother raised him due to his father’s alcohol abuse and mother’s medical concerns.  She suffered from epilepsy and other related conditions.  He has had a close connection to his extended family.  He has had one significant relationship which broke down approximately three years ago.  This relationship may have produced a child.

13.         His level of formal education is unclear.  He claimed to have completed Year 10, although ACT Corrective Services records indicate that he did not achieve that level of education.  He has had several positions as a general labourer in the construction industry.  He has a significant history of illicit substance use commencing with experimentation with cannabis at the age of 13 and escalating to daily use by the age of 16.  As a result of a rehabilitation program in 2011, he had a period of abstinence from cannabis.

14.         He commenced using methamphetamine in 2012.  He used it daily prior to his return to custody in April 2018.  He has previously completed the Solaris Program in the Alexander Maconochie Centre in November 2017 and again in October 2018.

15.         The opinion expressed by the author of the pre-sentence report is as follows:

Mr Johnstone identifies as a culturally connected aboriginal man, who shared a significant connection with his maternal grandmother.  His extensive offending history is primarily associated with the use of an illicit substance and non-compliance with community based orders.  Drug abuse continues to be a consistent factor in his struggle to maintain a pro-social lifestyle.  This is despite the completion of rehabilitation program in the community and the Solaris Program in custody.  It appears he is yet to maintain control over his substance misuse.

Until Mr Johnstone commits to an intervention within the community that can assist him in addressing his various criminogenic risks including substance abuse, antisocial values and attitudes, and unemployment he remains a medium-high risk to the ACT community.

16.         Mr Johnstone was on conditional liberty at the time of the offending as he was on parole in relation to an aggregate sentence of 27 months imprisonment imposed by Penfold J in February 2016.  The pre-sentence report indicates that he has a poor history of compliance with community-based orders.

Criminal history

17.         Mr Johnstone has a very poor criminal history.  Since 2011 he has a large number of convictions for burglary and theft.  In 2016 he was given an aggregate sentence of 27 months imprisonment by Penfold J in relation to offences committed in 2015 of damage property, aggravated burglary, riding a motor vehicle without consent and theft.  In 2016 and 2017 he committed offences of obstructing or resisting a territory public official, assault occasioning actual bodily harm, unauthorised possession or use of firearms, possession of a knife, going equipped for theft, possessing a drug of dependence and various driving offences.  The criminal history is consistent with what is said in the pre-sentence report about his use of illicit substances and is consistent with his criminal behaviour being principally driven by his methamphetamine use.

Time in custody

18.         The parties agreed that Mr Johnstone had spent 51 days in custody prior to today solely attributable to these offences.  He spent an additional period in custody as a consequence of the cancellation of his parole.

Consideration

19.         As I have indicated, the offender has a poor criminal history.  Despite the completion of relevant programs in prison, he has been unable to free himself from addiction to methamphetamine.  Dealing with that issue, ceasing to associate with antisocial people and obtaining employment would be key planks in his rehabilitation.  Notwithstanding extensive involvement with the criminal justice system, that has not yet occurred.  The fact that the offending conduct occurred whilst he was on parole in relation to a series of previous serious offences including aggravated burglary, is a clear demonstration that past punishment has not been sufficient to deter him from serious criminal conduct.  The sentence for the aggravated robbery must reflect the need for general and specific deterrence, denunciation and punishment.  It must however also recognise that he is still a young man for whom there is still hope that he will be able to be rehabilitated.

20.         In Barrett v The Queen [2016] ACTCA 38 at [40], the Court of Appeal noted that based on ACT Sentencing Database statistics for aggravated robbery, where a plea of guilty was entered, most sentences were in the range 30 months to four years. In R v Keenan [2014] ACTSC 342, Burns J reviewed a number of aggravated robbery sentences. Those cases demonstrated a range of sentences from two and a half years suspended after six months to six years and nine months for offences of aggravated robbery.

21.         In my view, only a custodial sentence is appropriate.  Further, only a sentence of full‑time imprisonment will reflect the objective seriousness of the offence and the subjective circumstances of the offender.  The sentence that I will impose will be as follows:

(a)       On the aggravated robbery charge, the custodial sentence will be one of full‑time imprisonment for a period of four years.

(b)       On the charge of riding in a stolen motor vehicle, the sentence will be 12 months imprisonment which will be cumulative as to two months upon the aggravated robbery sentence.

(c)       On the charge of assault occasioning actual bodily harm, the sentence of imprisonment will be 14 months which will be cumulative as to three months upon the previous sentence.

(d)       On the charge of assault, the sentence of imprisonment will be eight months, cumulative as to one month on the previous sentence.

22.         The aggregate sentence is four years and six months.  The non-parole period will be three years which represents two thirds of the overall sentence.

23.         The sentence will be backdated to take into account the period of 51 days in custody prior to today solely attributable to these offences.  That gives a backdate date of 12 December 2018.

24.         It is most unfortunate to have to impose a sentence such as this on an Aboriginal man such as Mr Johnstone who has had a difficult upbringing.  However, the gravity of the present offence, his poor criminal history and continuing difficulties with methamphetamine mean that a very significant custodial sentence cannot be avoided.

Orders

25.         The orders of the Court are:

1.           On the aggravated robbery charge (CC2018/8091), the offender is convicted and sentenced to imprisonment for a period of four years starting on 12 December 2018 and ending on 11 December 2022.

2.           On the charge of riding in a stolen motor vehicle (CC2018/4670), the offender is convicted and sentenced to 12 months imprisonment starting on 12 February 2022 and ending on 11 February 2023. 

3.           On the charge of assault occasioning actual bodily harm (CC2018/4672), the offender is convicted and sentenced to imprisonment for 14 months starting on 12 March 2022 and ending on 11 May 2023

4.           On the charge of assault (CC2018/4671), the offender is convicted and sentenced to imprisonment for eight months starting on 12 October 2022 and ending on 11 June 2023.

5.           The non-parole period commences on 12 December 2018 and ends on 11 December 2021.

6.           The sentences are to be cumulative as indicated by the start and end dates set out in the previous orders.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 18 June 2019