R v Johnson [2017] ACTSC 125

[2017] ACTSC 125

See [40] - [44] below.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - burglary - common assault - damage property - whether breach of trust involved - guilty pleas not early but before trial date set - offender still a young man - offender's dysfunctional childhood - age and circumstances in which offender acquired addiction may be relevant sentencing consideration - victim's attitude to offence not relevant sentencing consideration - need for offender to address anger - no obligation to backdate new sentence where pre-sentence custody already accounted for in earlier sentencing.

Crimes Act 1900 (ACT), ss 26, 116(3)

Crimes (Sentencing) Act 2005 (ACT), ss 63, 66

Magistrates Court Act 1930 (ACT), s 90B

Beniamini v Craig [2017] ACTSC 30

Fusimalohi v The Queen [2012] ACTCA 49

Heard v The Queen [2015] ACTCA 6

Millard v The Queen [2016] ACTCA 14

R v Henry [1999] NSWCCA 111; 46 NSWLR 346

R v Hutchinson [2014] ACTCA 29

R v Palu [2002] NSWCCA 381; 134 A Crim R 174

Roncevic v Boxx [2015] ACTSC 53

Wronski v Raue [2012] ACTSC 87

SCC 223 of 2016; SCC 224 of 2016

1. David Johnson has pleaded guilty to one offence of burglary contrary to s 311 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 14 years.

2. In sentencing Mr Johnson, I am also asked to take into account the following offences:

(a) two offences of damaging property, contrary to s 116(3) of the Crimes Act 1900 (ACT) and carrying a maximum penalty including imprisonment for two years; and

(b) one offence of common assault, contrary to s 26 of the Crimes Act and carrying a maximum penalty including imprisonment for two years.

3. Those charges were originally committed to this Court for trial under s 90B of the Magistrates Court Act 1930 (ACT).

4. The incident from which these charges arose took place in April 2016.

5. Mr Johnson was a friend of the victim, and earlier in 2016 he had been staying with her on and off while there were difficulties between him and his partner. During that time, Mr Johnson had sold a car and had left the paperwork at the victim's house.

6. On 10 April 2016, Mr Johnson drove to the victim's house, opened the front door and yelled at the victim that he wanted his papers. When she said she was not sure where they were, he upended a couch, damaging a wall in the process, and abused the victim. She told him to leave, and when he did, she closed and bolted the door behind him.

7. Shortly afterwards, Mr Johnson broke down the door, damaging the wooden doorframe, and forced his way inside, pushing the victim out of the way as he did so, which caused her to fall over and feel pain. Mr Johnson then threatened to go to the victim's parents' house to look for his papers, which distressed the victim because her father is elderly and has heart problems.

8. Mr Johnson then left the house and damaged the victim's car, first by throwing a car battery through one of the rear windows and then by smashing the windscreen. Shortly after he drove away, the victim called the police.

9. Mr Johnson was summonsed in relation to these offences and first appeared in the Magistrates Court on 27 June 2016. On his third appearance he pleaded not guilty, and after several further mentions he was on 29 September 2016 committed to this Court for trial.

10. On 27 February this year, after a number of mentions in the Supreme Court but before a trial date was set, Mr Johnson pleaded guilty to the burglary offence, and indicated his willingness to have the remaining offences taken into account in his sentencing for the burglary.

11. He was remanded in custody in relation to these matters when they were committed to this Court on 29 September 2016, but had earlier been remanded in custody on unrelated matters.

12. On 1 November 2016, Mr Johnson was sentenced for other offences, being damage property and assault occasioning actual bodily harm committed on 8 October 2015, fail to appear on 1 March 2016, and drug-driving and driving unlicensed on 24 March 2016. The sentence totalled 17 months in prison, and was backdated to 22 August 2016 to take account of the 71 days Mr Johnson had by then spent in custody on charges unrelated to the current ones. That sentence will expire on 21 January 2018, and the 8-month non-parole period set by the Magistrate expired on 21 April this year. Mr Johnson had applied for parole, but it seems that the parole hearing has been put on hold, at least until this sentencing is resolved.

13. Thus, although Mr Johnson has been remanded in custody in respect of the charge for which I must sentence him since 29 September 2016, he has been serving other sentences throughout that period and indeed throughout the whole current period in custody.

14. As well as the statement of facts, the following material is in evidence before me:

(a) Mr Johnson's criminal history;

(b) a pre-sentence report;

(c) an email from the victim to the prosecutor about Mr Johnson's subsequent behaviour, and about her attitude to the offence; and

(d) a further email from Corrective Services to the prosecutor about Mr Johnson's expressed interest in undertaking the Solaris Program in the Alexander Maconochie Centre (AMC).

All of those documents were tendered by the prosecution.

(a) a letter dated 28 April 2017 from Mr Johnson addressed to the Court;

(b) an email from the pre-sentence report author to Mr Johnson's counsel;

(c) a certificate of completion of the First Steps Anger Management Program;

(d) a pre-sentence report dated 20 July 2015;

(e) an email from ACT Corrective Services about aspects of Mr Johnson's time in custody; and

(f) a supplementary pre-sentence report dated 26 April 2017.

16. In considering the objective seriousness of the offence, I have had regard to the following matters.

17. Burglaries cover a range of different kinds of offences. This burglary, in which Mr Johnson entered a house by force against the will of the occupant, would have been extremely frightening to her. I note Mr Johnson's admission that when he pushed the victim, he was aware that in the ordinary course of events, the result would be to cause harm to her. On the other hand, I accept defence counsel's submission that this was not the most frightening version of a home invasion, and I note that the harm inflicted was relatively minor and that the nature of the force used, a push to get the victim out of his way, was also relatively minor.

18. The prosecutor submitted that Mr Johnson's offence involved a breach of trust, because he had previously been trusted by the victim to live in the house that he has now burgled. I am not convinced that the current offence did involve a breach of trust. Such a breach might have been found if, for instance, Mr Johnson had broken into the premises to steal property he knew about as a result of previously being trusted to live there, or had gained access to the house by using knowledge about weaknesses in the security arrangements that he had obtained through living there. In this case, however, his entry into the house, after having been excluded from it by the victim, undoubtedly shows gross ingratitude to a person who had taken him in when he was in need, but I cannot identify a particular trust that was breached or how it was breached.

19. The email from the victim to the prosecutor described several approaches to her by Mr Johnson that suggest remorse on his part, including an attempt to apologise in person and an actual apology by email, and an offer to pay for the repair of the victim's damaged car and other property. The victim noted in that email that she had not yet been able to tell Mr Johnson the final cost of repairs.

20. On the other hand, I have not had regard to this email to the extent that it sets out the victim's views which are, in general terms, to the effect that this was not a big incident and that she would like to see Mr Johnson at home with his family.

21. It is settled law that a victim's attitude to the offence or the offender is not relevant to sentencing. In the case of R v Palu [2002] NSWCCA 381; 134 A Crim R 174, Howie J, with whom the other members of the New South Wales Court of Criminal Appeal agreed, explained this as follows:

37. The attitude of the victim cannot be allowed to interfere with the proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness. Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution.

(citations omitted)

22. Mr Johnson's offence is in my view of relatively low-level seriousness. The assault and the damage to the doorframe (both of which appear to have been almost incidental to his actions), were also of low-level seriousness, but the damaging of the victim's car was entirely gratuitous, and seems to have been nothing more than a vindictive expression of unjustified anger. Among other things, the scheduled offences, which are to be taken into account in sentencing for the burglary, emphasise the role of anger in Mr Johnson's offending, and the need for it to be addressed.

23. I have also had regard in this sentencing to Mr Johnson's subjective circumstances.

24. Mr Johnson is still only 20 years old, and was 19 at the time of these offences. His criminal history in the ACT consists of:

(a) a variety of relatively insignificant offences;

(b) 14 dishonesty offences committed in two separate incidents in March 2015, as well as two knife possession offences around the same time;

(c) the damage property and assault offences committed in October 2015; and

(d) a fail to appear on a bail undertaking offence, and two driving offences, in March 2016.

25. Mr Johnson had a troubled childhood, experiencing abuse and trauma, and by the age of 11 was living in a child refuge. From the age of 14, he lived with a foster family who apparently provided a positive environment, but by then he had begun to use both cannabis and Ice and that use escalated over time, leading Mr Johnson to acquire a variety of anti-social companions. In recent years, he has made various attempts to abstain from drug use, but so far does not appear to have had any lasting success.

26. Mr Johnson moved in with his partner at age 17, and now has a young son. This son is the survivor of twins, one of whom died before birth, and there are suggestions that Mr Johnson has unresolved grief issues arising from the baby's death. He has been violent towards his partner, and it seems that the child protection authorities do not at this stage support his return to live with his partner and child.

27. There is no information before me about Mr Johnson's education or employment history or his capacity to find employment in the future, although his letter to the Court did refer to his hope, on release, of obtaining work immediately so he could provide for his partner and son.

28. As noted, Mr Johnson has abused drugs since he was a young teenager, and the presentence report author reported that Mr Johnson attributed his offending in part to substance abuse and engagement with anti-social peers, while conceding that he was not affected by alcohol or drugs at the time of these offences; rather, he mentioned his difficulties with anger management as directly relevant to the current offences. Urinalysis in December 2016, during the current term in custody, showed drug use, but he has not been subject to urinalysis since January 2017.

29. During his current period in custody, Mr Johnson has completed an anger management course and has expressed an interest in undertaking further anger management counselling, as well as programs focused on drug and alcohol rehabilitation while in custody. I understand that he has been assessed as suitable for the SMART Recovery Program in custody, but it seems that he had not taken any active steps to get a place in the Solaris Residential Rehabilitation Program until after this sentencing hearing began in late April, even though he has been a sentenced prisoner for some months now. On the other hand I note that, earlier this year, he had applied to both Karralika and Arcadia House.

30. Mr Johnson has been in strict protection in the AMC since 20 September last year. I note that strict protection can make the prison experience even more onerous than usual, but it is not usually, and certainly not in the absence of information about why Mr Johnson needs strict protection, a basis for reducing the length or custodial component of a sentence.

31. General deterrence, and indeed denunciation, are relevant considerations in relation to burglaries, including burglaries of this kind, and personal deterrence also seems to be relevant given Mr Johnson's repeated offending. However, I suspect that deterrence will not be nearly as relevant in dissuading Mr Johnson from re-offending as would be the provision of help in the management of his distress and resulting anger.

32. I note in this context also that although Mr Johnson did not commit the current offences as a juvenile, he is still a young man and, apparently, a young man who has suffered a dysfunctional upbringing throughout most of his childhood. I consider it is reasonable to place quite some weight on his need for rehabilitation.

33. Mr Johnson's guilty pleas were not early, but did come before a trial date had been set, and one effect of the pleas of guilty was to spare the victim the need to appear in court and tell her story. The pleas will be recognised with a sentencing discount of around 15%.

34. The pre-sentence report assessed Mr Johnson as suitable for restorative justice, but no submissions were made about this by either party.

(a) a number of ACT Court of Appeal decisions (including those in the matters of Fusimalohi v The Queen [2012] ACTCA 49, R v Hutchinson [2014] ACTCA 29, Heard v The Queen [2015] ACTCA 6 and Millard v The Queen [2016] ACTCA 14) that were useful if not definitive in relation to the appropriate sentence for the burglary offence; and

(b) Refshauge J's decision in Beniamini v Craig [2017] ACTSC 30 for his Honour's comments about the role of the determination of objective seriousness in ACT sentencing.

36. I have considered the various sentences under review in those cases, but see no need to discuss the particular cases further, except to note my agreement with his Honour's comments in Beniamini v Craig about determinations of objective seriousness (see Roncevic v Boxx [2015] ACTSC 53 at [45] and [46])).

37. Defence counsel reminded me of the proposition that although drug addiction is not a mitigating factor as such, the age at which and the circumstances in which an offender acquired an addiction may well be relevant in sentencing (R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [273]).

38. I accept this, while noting Mr Johnson's concession that he was not under the influence of drugs at the time of the burglary and counsel's suggestion that he was, however, "hanging out" for drugs at the time (which may well have increased his difficulties in controlling his anger).

39. Defence counsel also pointed to the insight evidenced by Mr Johnson's recognition that he should try to deal with his drug abuse before he goes back into the community, especially in the hope of being able to be a good father to his young son.

40. Mr Johnson, please stand. I record a conviction on the charge of burglary. I also note the scheduled offences, being one common assault and two damage property offences, and I have taken them into account in sentencing you for the burglary.

41. I now sentence you to imprisonment for 20 months, reduced from 2 years for your guilty pleas.

42. The sentence will be backdated to 22 March 2017. This does not reflect the full period since you were remanded in custody in relation to the current offences, but that period is already being set against your current sentences, and the backdating gives you the benefit of 10 months concurrency between the sentences you are now serving and the new sentence that I have just imposed for the burglary offence.

43. As noted in Wronski v Raue [2012] ACTSC 87, I am satisfied that s 63 of the Crimes (Sentencing) Act 2005 (ACT) does not oblige a court, where pre-sentence custody has already been accounted for in another sentencing, to backdate the new sentence to reflect exactly the time spent in pre-sentence custody in respect of that particular offence, but to take account of that period in applying the totality principle to the determination of the period over which the offender must serve, or is treated as having served, the new sentence.

44. The new sentence will expire on 21 November 2018. Under s 66 of the Crimes (Sentencing) Act, I am obliged to set a new non-parole period for your total sentence (being the sentence I have just imposed and the Magistrates Court sentences which you are still serving), and I set a new non-parole period of 16 months commencing on 22 August 2016 and expiring on 21 December 2017. That means that you have just over seven months to serve before you become eligible again for parole. I don't know if that will allow you enough time to undertake the Solaris Program, and it may be that residential rehabilitation would need to be arranged as part of your parole conditions. On the other hand, you are not obliged to apply for parole at the earliest possible time if you are making progress in the AMC.

45. Even if it turns out that you don't now have time to do the Solaris Program, or that it is impossible due to your need to stay in strict protection, you should certainly have time to take part in further drug and alcohol counselling such as SMART Recovery, in anger management programs and, ideally, some counselling aimed at your unresolved trauma and grief problems.

46. Accordingly, I recommend that in the next few months, Corrections provide you at least with some form of trauma and grief counselling, which could presumably be provided one-to-one even to a person in protection, as well as offering you whatever is available in the way of anger management and alcohol and drug abuse help. Mr Johnson, I recommend that you make the most of any such help that is offered, with a view to putting yourself in a position, when you are finally released, to persuade the child protection authorities that you are a fit person to go back and live with your partner and your son.

47. If you have any particular questions about the orders, please ask the court officials or Mr Edmonds.

I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.