1 The appellant, Bradley Darryl Johnson, pleaded guilty to four charges of aggravated burglary, one charge of burglary, eight charges of theft, one charge of attempted theft, one charge of handling stolen goods and three summary charges for driving offences.

2 On 30 May 2012, the appellant was sentenced as follows:

Burglary [Crimes Act 1958 (Vic) s76(1)]

10 years [Crimes Act 1958 (Vic) s76(3)]

Theft [Crimes Act 1958 (Vic) s72]

10 years [Crimes Act 1958 (Vic) s74]

Aggravated burglary [Crimes Act 1958 (Vic) s77(1)]

25 years [Crimes Act 1958 (Vic) s77(2)]

Theft [Crimes Act 1958 (Vic) s72]

10 years [Crimes Act 1958 (Vic) s74]

Attempted theft [Crimes Act 1958 (Vic) s321M]

10 years [Crimes Act 1958 (Vic) s74]

Aggravated burglary [Crimes Act 1958 (Vic) s77(1)]

25 years [Crimes Act 1958 (Vic) s77(2)]

Aggravated burglary [Crimes Act 1958 (Vic) s77(1)]

25 years [Crimes Act 1958 (Vic) s77(2)]

Theft [Crimes Act 1958 (Vic) s72]

10 years [Crimes Act 1958 (Vic) s74]

Theft [Crimes Act 1958 (Vic) s72]

10 years [Crimes Act 1958 (Vic) s74]

Aggravated burglary [Crimes Act 1958 (Vic) s77(1)]

25 years [Crimes Act 1958 (Vic) s77(2)]

Theft [Crimes Act 1958 (Vic) s74]

10 years [Crimes Act 1958 (Vic) s74]

Theft [Crimes Act 1958 (Vic) s72]

10 years [Crimes Act 1958 (Vic) s74]

Handle stolen goods [Crimes Act 1958 (Vic) s88(1)]

15 years [Crimes Act 1958 (Vic) s88(2)]

Theft [Crimes Act 1958 (Vic) s72]

10 years [Crimes Act 1958 (Vic) s74]

Theft [Crimes Act 1958 (Vic) s72]

10 years [Crimes Act 1958 (Vic) s74]

Drive in a dangerous manner [Road Safety Act 1986 (Vic) s64(1)]

240 penalty units and/or 2 years [Road Safety Act 1986 (Vic) s64(2)]

Drive whilst disqualified [Road Safety Act 1986 (Vic) s30(1)]

(First offender) 30 penalty units or 4 months [Road Safety Act 1986 (Vic) s30(1)]

Fail to stop vehicle after an accident [Road Safety Act 1986 (Vic) s61(1)(a)]

(First offender) 5 Penalty Units or 14 days imprisonment [Road Safety Act 1986 (Vic) s61(5)(a)]

6 years with a non-parole period of 4 and a half years

Other orders: Driver's licence cancelled and disqualified from obtaining one for three years Sentencing Act 1991 (Vic) s89(4)

3 At the time Mr Johnson was sentenced, he was serving a period of two years, five months and seven days, which had been reclaimed by the Parole Board as a result of him breaching parole on an earlier sentence by travelling interstate.

4 He had served one year, seven months and 16 days of the reclaimed period leaving him with nine months and three days left to serve. The judge ordered that the current sentences should be served concurrently with the time which remained owing to the Parole Board. Thus the effect of his sentence was that he would be eligible for release after serving four years ten months and 16 days from his date of arrest.

5 The appellant initially relied upon two grounds in support of an application for leave to appeal against sentence and was subsequently permitted to add a further ground. A single judge of this Court refused leave to grant the appellant leave to appeal on grounds 1 and 2 but gave him leave to appeal on ground 3.[2]

6 Ground 3 was that 'fresh evidence sheds new light on the appellant's mental condition at the time of the offending and sentencing, namely that the appellant suffered and continues to suffer from a paranoid schizophrenic illness of a well established and of a permanent nature and which is relevant to the assessment of his moral culpability and prospects for rehabilitation and the weight to be given to denunciation and deterrence.'

7 The Crown has conceded that the psychiatric evidence about Mr Johnson's mental condition amounts to fresh evidence and that accordingly he should be resentenced on that basis. As a consequence, the appellant does not press grounds 1 and 2.

8 The appellant was 29 at the time of the offending. All of the offences occurred within a relatively short period.

9 The circumstances of the offending were helpfully summarised by Ashley JA when he considered the leave application:

On 6 September 2010, the appellant entered a house located at 3 Anthony Street, Mildura by smashing a rear sliding glass door [Charge 1 - Burglary]. Once inside the house, the appellant took a spare key to the occupant's utility and stole the vehicle. It was recovered six days later in a nearby estate [Charge 2 - Theft].

At some time on the night of 25-26 September 2010, the appellant attended 430 Montario Avenue, Mildura. The appellant gained entry to the premises through a rear door while the occupants were asleep inside [Charge 3 - Aggravated burglary]. The appellant went to the victims' bedroom and stole $100.00 cash and a set of car keys from a handbag. The appellant then used the car keys to steal a vehicle [Charge 4 - Theft].

In the early morning of 26 September 2010, the appellant and a co-offender, Jarrod Peterson, travelled to the Comfort Inn, Mildura, in the stolen vehicle. After parking the stolen vehicle in the car park, the appellant attempted to steal property from a station wagon, but was challenged by the owner of the vehicle [Charge 5 - Attempted theft]. The owner attempted to apprehend the appellant, but the appellant broke free and fled the scene with Peterson in the stolen vehicle.

A little later that morning, the appellant and Peterson travelled to a premises in Red Cliffs in the stolen sedan. The appellant went to the back of the premises and jemmied a sliding door, while Peterson remained in the car [Charge 6 - Aggravated burglary]. The appellant was disturbed by one of the occupants and he fled the scene with Peterson in the stolen vehicle.

A few hours later, the appellant and Peterson travelled in the stolen sedan to another premises in Red Cliffs. The appellant gained access to the premises through an unlocked door at the rear of the house while the occupants were asleep [Charge 7 - Aggravated burglary]. Peterson remained in the stolen vehicle. The appellant stole $800.00 cash and a set of keys to yet another vehicle [Charge 8 - Theft]. The appellant, together with Peterson, then left the premises in the newly stolen vehicle, leaving the earlier stolen vehicle behind [Charge 9 - Theft]. The appellant and Peterson then travelled to South Australia in the newly stolen vehicle before returning to Mildura.

On 28 September 2010, the appellant and Peterson drove the stolen vehicle to a residential property at Irymple. The appellant walked to a laundry door and gained access to the premises by breaking the glass and opening the door [Charge 10 - Aggravated burglary]. Meanwhile, the occupants, a female and a new born baby, slept inside. Peterson remained outside the premises. Once inside, the appellant stole a laptop, $450.00 cash from the female victim's purse and a set of carkeys [Charge 11 - Theft]. The appellant and Peterson then stole the female victim's station wagon and drove away [Charge 12 - Theft].

Peterson was arrested on 29 September 2010 at his residence in Mildura. Following Peterson's arrest, the appellant fled Victoria with his then girlfriend. They travelled to Adelaide. The appellant and his girlfriend abandoned the stolen station wagon in Adelaide. They came to the attention of South Australian Police for a number of aggravated burglaries and thefts of motor vehicles. There was a police pursuit, which involved the intentional ramming of both police and civilian witnesses. The girlfriend was arrested in South Australia.

On 4 October 2010, the appellant stole a sedan from a victim at knifepoint at a petrol station in Adelaide. He subsequently returned to Victoria in that stolen vehicle [Charge 13 - Handle stolen goods].

On 5 October 2010, the appellant went to a hotel and stole yet another vehicle [Charge 14 - Theft].

On the same day, the appellant drove the vehicle which he had stolen in Adelaide to a fuel station in Red Cliffs and put petrol to the value of $82 into the vehicle. He drove off without paying for the fuel [Charge 15 - Theft].

The summary charges arise out of the driving of that vehicle later that day.

10 Since the appellant no longer presses ground 1, which was a parity ground, it is unnecessary to describe the sentences imposed on his cooffender.

11 As I have said, the Crown has conceded that Ground 3 is made out and that the appellant should be resentenced. During the plea hearing, the sentencing judge considered reports of forensic psychologist, Dr Ian Joblin, which was provided in 2004 when he was sentenced, and of consulting psychologist, Mr Warren Simmons, which was based on his interview of the appellant on 22 March 2012.

12 In his reasons, the judge referred to Dr Joblin's opinion that the appellant had had a very disturbed family history, that his psychological problems were related to his consistent drug and alcohol abuse and that he was intelligent and had insight. At that stage Dr Joblin considered that the appellant was not psychotic.

13 His Honour also discussed Mr Simmons' report, which noted that the appellant's offending history in the past related to his drug and alcohol use but that when Mr Johnson was taken into custody at the end of 2010, he was placed in a psychiatric unit in Melbourne Assessment Prison and later transferred to the Thomas Embling Hospital, where he was placed on a course of Xyprexa and remained as an inpatient for two to three months.

14 Mr Simmons noted that the appellant had made a significant attempt at self harm at that time which seemed to be psychotic in origin and said that there was no doubt that the appellant was suffering from some psychiatric condition 'that appears to be related to psychosis rather than mood disorder.' At that stage, however, Verdins principles were not pressed. On that basis his Honour said:

There is no material before me upon which I conclude at the time of your appearance before you on 9 May you were suffering from a form of mental illness.

15 However, as Ground 3 reveals, there has been a subsequent report by a forensic psychiatrist, Dr Andrew Carroll, when indicates that Mr Johnson is now suffering from paranoid schizophrenia. Dr Carroll expressed the following opinion:

At some period in his late 20s, it appears that he [the appellant] has developed a paranoid schizophrenic illness, which now appears to be well established and is a condition of a permanent nature; the absence of mood symptoms even though he is no longer on a mood stabiliser make schizophrenia a more likely diagnosis than schizoaffective disorder. It may well be that his heavy substance misuse played some part in the genesis of this illness, but it certainly now appears to have an independent existence whether he is using substances or not. Symptomatically, his schizophrenia appears to currently manifest itself as a core delusional belief about some kind of supernatural power with which he was initially endowed, but has now 'destroyed' the exact nature of which he feels unable to divulge. There was also possible evidence at interview of some ongoing auditory hallucinations. From a risk perspective, the particular content of his psychotic beliefs clearly place him at a high risk of suicide if he ceases his medication: this is because his preoccupation with the 'destroyed thing' becomes more intense and he feels compelled to suicide in order to enter the afterlife and atone for his actions which led to the destruction of the 'destroyed thing'.

It is certainly likely that he was suffering from at least some symptoms of his illness throughout September-October 2010, based on his floridly unwell state when assessed soon after reception into custody. On careful exploration, I could find no evidence however of any direct causal nexus between his psychotic illness and the spree of offending just prior to his most recent incarceration. Although such symptoms would have affected his capacity to think clearly about the wrongfulness of his actions, given his entrenched pattern of offending and his own account of the offending and its motivation, it is not possible to assert that such symptoms were a significant causal factor in his offending.

Although he still has some residual symptoms, these do not appear to be having a severe effect on his day to day functioning or to be placing him at a high risk of harm to self or others. He is well engaged with his psychiatric care in prison and appears to be functioning reasonably well there. I could find no evidence to suggest that imprisonment is having a more negative effect on him than would be the case for someone without a mental illness [emphasis added].

16 Dr Carroll said that Mr Johnson had need for support in his rehabilitation and it was difficult to be optimistic as to his mental health prognosis and his risk of reoffending. He also noted that Mr Johnson had not expressed remorse for his most recent offending but:

This seems to reflect his overwhelming psychotically based guilty free occupation about the 'destroyed thing' which overshadowed possible guilt feelings for other actions rather than being indicative of callous disregard on his part.

17 Counsel for the appellant conceded that Dr Carroll had expressed the opinion that the mental condition from which Mr Johnson suffers had had limited causal relationship on the offending and on his moral culpability and had also said that his psychiatric condition would not make his period in prison more burdensome than for a person not suffering from that mental condition. Nevertheless, counsel submitted that both the psychiatric condition and his cognitive problems had had some effect on his appreciation of the wrongfulness of his offending and submitted that his paranoid schizophrenia required moderation of the emphasis to be placed on general and specific deterrence.

18 In resentencing the appellant, both his guilty plea and his appalling family background are significant mitigating factors. As the sentencing judge acknowledged, the appellant was exposed to violence within his family, spent time in foster care and in numerous refuges. On the other hand, he has a long history of substance abuse which, in addition to his mental illness, will make his rehabilitation particularly difficult.

19 The offending in this case was serious. Three of the victims of his offences provided victim impact statements which referred to their intense and long lasting fears for their safety as a result of the offences covered by charges 611 and 12.

20 Further, the appellant has an appalling criminal history which includes three prior convictions for burglary, seven prior convictions for theft of a motor vehicle, two prior convictions for theft, two prior convictions for aggravated burglary and one prior conviction for handling stolen goods.

21 Many of these offences appear to have occurred as a consequence of his drug addiction. Dr Carroll suggests that his paranoid schizophrenia did not become manifest until his late 20s, so it cannot be said that the previous offending was attributable to his mental illness.

22 In my view the sentences imposed on the appellant should be slightly reduced. Despite Dr Carroll's opinion that the appellant's psychotic symptoms were not a significant causal factor in his offending, some reduction is appropriate because of the decreased emphasis to be placed on general and specific deterrence as a result of the appellant's mental illness.

23 The appellant's appeal is allowed and the sentences of 12 months imprisonment imposed on charges 2, 5, 8, 9 and 15 are set aside. In lieu thereof, sentences of six months imprisonment are imposed on each of those charges.

24 The base sentence is the two years' term of imprisonment imposed on Charge 3. I make the following orders for cumulation: two months on Charge 1, one month on Charge 4, four months on Charge 6, four months on Charge 7, four months on Charge 10, one month on Charge 11, one month on Charge 12, three months on Charge 13, one month on Charge 14, three months on Charge 23. As I have said, this amounts to a total effective sentence of four years. The nonparole period to be imposed is three years' imprisonment.

25 It is declared that a period of 487 days (not including today) be recorded as already served under sentence and it is ordered that the fact that the declaration was made and its details be noted in the records of the Court.

27 Pursuant to s 6AAA of the Sentencing Act, the Court declares that if it had not been for the guilty plea, Mr Johnson would have been sentenced to a total effective sentence of five years and six months with a nonparole period of 44 months.

28 Since exceptional circumstances have been made out, these sentences are to be served concurrently with the sentence previously imposed following the breach of parole.

30 It should be noted in relation to re-sentencing the appellant, the fact that he had completed courses during the time of his incarceration was taken into account, the relevant certificates having been provided on the hearing of the application.

[1] The appellant was released on parole on 6 October 2008. On 29 April 2010 the appellant's parole was cancelled because he had gone interstate. The appellant was arrested on 9 October 2010 in relation to his parole cancellation. On 14 October 2010 the appellant's parole was deemed to have been breached and he was returned to prison to serve the unexpired portion of his earlier sentence, being 2 years, 5 months and 7 days' imprisonment. See DPP v Johnson (Unreported, Country Court of Victoria, Judge Wood, 30 May 2012), [53]-[55].

[2] Johnson v DPP (Unreported, Court of Appeal, Justice Ashley, 29 May 2013).