R v JOHNSON

Facts

1. The facts in all matters are before the court by way of a set of agreed facts, which is at tab five of the Crown tender bundle, exhibit A on sentence.
2. At 2:51am on Thursday, 29 December 2022, CCTV from 6B Francis Court, Ashmont captures this offender and the co-offender Fox walk up to the driveway of the residence. The resident kept her motor vehicle, a Toyota sedan, in the driveway. Also in the driveway was her daughter's car, a Suzuki which she was looking after for her daughter. The offenders approached the Toyota sedan. Fox attempted to open the front passenger door while the offender attempted to open the front driver's door. The car was locked and they were unable to gain entry into the car. Fox then walked to the Suzuki also parked in the driveway and attempted to open the driver's door, however it was locked. The offenders left the premises immediately after. The occupier of the premises was later informed by neighbour that a car had been stolen in the neighbourhood. She reviewed the CCTV footage, observed the offenders and reported the matter to police. This grounds the charge of enter building with intent to commit an indictable offence. It is a typical or unremarkable example of that type of offence. If further assessment is necessary the matter is below mid-range.
3. The facts then go to detail the aggravated Break Enter and Commit serious indictable offence charge. At about 3am on 29 December 2022 this offender and the co-offender Fox gained entry to a garage at 8 Francis Court, Ashmont through a side door that is always locked. Within the garage were keys to an Audi Q7 motor vehicle which was owned by Tristan Gilchrist who lived at the property. The offender took the keys from where they were within the garage and used them to gain access to the vehicle that was parked in the driveway. Soon after, Mr Gilchrist's partner, Rachel Miller, was woken by the sound of the vehicle starting. She woke Gilchrist and they ran out of the house to the front of the property where they saw the car being reversed in the driveway. Ms Miller ran to the passenger side door and saw two men in the front seats and noticed that this offender was driving.
4. The offender reversed harshly and hit a blue Mazda vehicle that was parked at the property, causing significant damage to the vehicle. The Audi was stationary for a short time while Johnson placed the car in drive. Rachel Miller ran after the car and opened the passenger door again. She managed to take hold of Fox's jumper although she was unable to stop the offender from driving the vehicle away from the property.
5. Documents from the Bendigo Bank tendered at the sentence hearing indicate that the Audi vehicle was valued at $30,000. The offence occurred at residential premises at night, although entry was only effected to the garage rather than the residence itself. The vehicle was later destroyed, there being a separate charge relating to that. However, the value of property taken was substantial. I accept that for the purpose of sentence the offending was essentially opportunistic. Noting what was said by Adams J in Hunter v R [2011] NSWCCA 141 at [52], I am of the opinion that this matter is below mid-range but not substantially so.
6. The charge of driving in a manner dangerous to the public attaching to the section 166 certificate relates to the offender reversing harshly and driving the Audi vehicle so as to cause it to impact with the Mazda. Taken in isolation this matter is below mid-range.
7. Sequence 12, a charge of being carried in a stolen conveyance, also relates to the offender allowing himself to be carried in the stolen Audi vehicle. Again, taken in isolation this is a typical or unremarkable example of that type of offending. It occurs to me that the sentence of this matter would be wholly concurrent with the sentence in respect of the aggravated Break Enter and Commit serious indictable offence matter.
8. I now go to the charge of Destroy Property by Fire in company. At 6:25am on 29 December 2022, Janice Korner was in her kitchen at 4 John Street, Kooringal when she heard a noise coming from the back yard. She looked out the window and saw the Audi (i.e. Mr Gilchrist's vehicle that had been stolen) had been driven up into her driveway and parked inside a carport which was attached to the house.
9. She went towards the carport to investigate and she saw this offender standing at the front of the car. At this time, she heard a noise coming from where the vehicle was located and saw that it was on fire. The fire at this point was at the back of the vehicle. She immediately contacted emergency services and noticed the offender had left the property.
10. The fire brigade attended at 6:39am; the vehicle was well alight with flames spreading throughout the garage ceiling of the residence. At 6:31am this offender is captured on CCTV crossing Lake Albert Road about 150 metres from the location of the fire. At 6:34am the offender is seen by a witness running from the rear yard of a residence along Paul Street and into Tichborne Crescent. At 6:37am the offender is seen on CCTV continuing to run away from the direction of the fire.
11. The Audi vehicle was completely destroyed by the fire. The damage at 4 John Street was extensive and the carport ceiling, shed ceiling, cladding on the side of the house which the carport joins and the gazebo all required replacing. Documents at tab six of the Crown tender bundle indicate the damage amount to be $117,788. The matter involved the wanton destruction of the Audi motor vehicle and substantial damage to the home of a citizen who simply had the misfortune of their home being chosen by this offender to dispose of the stolen vehicle. The matter is a serious example of a charge of destroy property by fire in company. If further assessment is required the matter is within the mid-range.
12. I now go to the matter of the police pursuit and the unlicensed driver matter. At about 5:50am on 29 December 2022 police become aware that the stolen Audi was being driven around the Kooringal area. At the time the vehicle was also being followed by Mr Gilchrist and Ms Miller who had contacted police and advised of the location of the Audi.
13. At 6:07am the vehicle was sighted by Highway Patrol turning from Glenfield Road into Redhill Road. The vehicle accelerated and proceeded in a westerly direction. Police activated all warning devices and initiated pursuit 22/3614. The vehicle increased its speed to 150 km per hour. On two occasions along this section of the roadway, the vehicle momentarily crossed to the incorrect side of the roadway. At the intersection of Yentoo Drive, Glenfield the vehicle turned right and accelerated to where its speed varied between 60 km/h to 80 km/h. At the intersection of Fernleigh Road the vehicle turned left and drove west, where it accelerated to a speed of no less than 120 km/h. Along this section of the roadway the vehicle overtook a westbound heavy vehicle on the incorrect side of the road before returning to its correct side. At the intersection of Cameron Street the vehicle turned right, then right into Mumford Street. The vehicle accelerated to a speed of no less than 100 km/h before slowing and turning. For this section of the pursuit the vehicle speed varied between 50 km/h and 80 km/h. At the intersection of Fernleigh Road, the vehicle turned left and accelerated in an easterly direction at a speed of no less than 90 km/h and again crossed to the incorrect side of the roadway. At the intersection of Tobruk Street the vehicle swerved at an oncoming vehicle. At this point the pursuit was terminated by police due to the dangerous manner of the driving.
14. To my mind this is a serious example of a police pursuit. The Court attendance notice indicates the pursuit lasted for approximately five minutes. As a resident of the city of Wagga Wagga and as the resident presiding judge at that centre for a period of over six years, I am well aware that the areas traversed by the police pursuit are residential areas of suburban Wagga Wagga. The matter is well within the mid-range of seriousness. The offender was unlicensed and had never been licensed. The offender was therefore an inexperienced driver, which adds to the seriousness of the matter.
15. That leaves sequence 8, i.e, the Take and Drive conveyance without the consent of owner charge. Ms Amanda Lidden who resides at an address in Pearson Street, Uranquinty woke at about 3:45am on 29 December and began to get ready for work. At about 3:55am she went to her vehicle that was parked in the driveway, unlocked it and placed her drink bottle and work uniform inside the vehicle then returned inside leaving the car unlocked. At 3:59am she returned to her vehicle and saw the co-offender Fox leaning inside the front door. She yelled at him and he ran off, getting inside the front passenger door of the stolen Audi which was being driven by this offender. The vehicle was parked at the front of the property and once the co-offender was in the car Johnson sped off, before returning to the property and driving past the front of house. A large black torch that had not been in the car previously was found in the car. Again, taken in isolation this is a typical unremarkable example of this type of offending.

Criminal history

1. The offender was born on 4 May 2001 and accordingly was 21 at the time of the offending and is now 22 years of age. He has a very substantial record both as a juvenile and as an adult. Indeed, the record is such that the Crown submitted that the principles enunciated by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 were enlivened. Given the record of the offender, to my mind the Crown cannot be criticised for making that submission. However, the offender is still a relatively young man, being only 22 years of age. Given that circumstance, I will deal with the criminal history as one that does not entitle the offender to any particular leniency rather than as an aggravating factor. Nevertheless, whilst I will deal with the record on this basis, there must be some element of specific deterrence factored into the sentence.
2. The offender has numerous entries on his juvenile record for offences such as Break Enter and steal, Destroy or damage property, and the like. Even putting to one side the juvenile history, which is substantial, the offender's record as an adult taken by itself does not entitle the offender to any particular leniency. He has been convicted of Damage Property in company in respect of which a custodial sentence was imposed in 2020 and in 2021 he was sentenced to a total sentence of two years and three months for robbery in company. Parole in respect of that offending expired on 30 November 2022, about a month before this offending. He has also been convicted of Riot in respect of which a sentence of one year and five months was imposed. In 2023 he was sentenced to 6 months imprisonment for assaulting an officer and Be Carried in a stolen conveyance.

Subjective Case

1. When the matter first came before the court on 29 November 2023, Mr Jackson, counsel for the offender, who is within the experience of this court both experienced and able, indicated that it was his client's wish for the matter to be finalised without a psychological report or the like. I made clear, essentially for the benefit of the offender, that that made it difficult for the Court to make any positive findings on subjective matters, in particular what have become known in shorthand terms as the "Bugmy factors". I note the offender is Aboriginal and grew up at Lake Cargelligo. I note that I have presided over many matters in regional New South Wales involving indigenous offenders.
2. The offender has a very extensive record as a juvenile. I recognise that Bugmy v The Queen [2013] HCA 37 is authority for the proposition that there should be evidence before the court of the deprivations suffered by an offender before the principles are enlivened. There is the evidence of the offender's record in the matter presently under consideration. Noting the extent of the record as a juvenile and in particular some of the offending and the length of some of the Control Orders imposed, I am prepared to find that the "Bugmy factors" are enlivened to an extent. However, in the absence of other evidence or material, I cannot give those factors the weight I suspect they are probably worth.
3. Mr Jackson helpfully prepared a two-page document which became Exhibit 1 on sentence titled "Personal Subjectives of the Offender". The offender is the youngest of seven children and he has five brothers and one sister. Although he was enrolled at the Lake Cargelligo Primary School his attendance was minimal and sporadic. His attendance at secondary school was likewise minimal and sporadic.
4. Further, while attending primary school he commenced using cannabis and later began using methamphetamine and heroin. The offender apparently indicated to his counsel that ice (methamphetamine) is now his preferred drug.
5. When he was 15 the offender was sentenced to a control order of three years, which was reduced to 2 years on appeal. While in juvenile custody the offender completed his Year 10 Certificate.
6. The offender's parents separated and moved to Griffith. His parents live together but are no longer in a relationship. The offender and his mother reported that there was no domestic violence while the offender was growing up.
7. Clearly, there is a real and regrettable possibility that the offender is either institutionalised or is very close to being so. Mr Jackson submitted, correctly, that since the offender's first control order he has spent more time in custody than he has in the community. The offender apparently reported to counsel that there were no issues regarding his time in juvenile detention.
8. The offender reported to his counsel that he was using ice at the time of this offending and was committing these offences for the purpose of obtaining more of that substance.
9. While he has been in custody awaiting sentence in respect of this offending the offender's former partner gave birth to a daughter, in September. He has no contact with his daughter, who now resides in Tumut with her mother.
10. Upon his eventual release the offender wishes to return to Griffith but apparently would ultimately like to move elsewhere for a fresh start.
11. The offender confirmed to counsel that he is currently on the Buprenorphine Program while in custody and he intends to continue this with the hope of breaking his addiction. Once sentenced, the offender intends to enrol in programs in the hope of improving his employment prospects upon his eventual release. Further, he will enrol in programs to assist with substance abstinence.
12. The court also has a Sentencing Assessment Report, which is Exhibit B on sentence. That report is far from positive. It notes that he is presently housed at the Wellington Correctional Centre and has other matters coming before the courts in December and January.
13. Further, the report notes that the offender has no employment history. He is considered to be a young offender. He has spent a total of nine months in the community as a combined total since becoming an adult at 18 years of age.
14. Under the heading "Attitudes", the author of the SAR notes that the offender appeared unable to recognise the severity of his offences and minimised his behaviour. He expressed no regret and showed self-concern with how his offending behaviour has affected him by way of incarceration. The author went on to say that the offender displayed a negative pro criminal attitude with no thought of the consequences or concern for his offending. The author also notes the offender was difficult to engage for the purposes of preparation of the report.
15. It is noted in the report that the offender has been on the Buprenorphine Program and the offender reported that he is motivated to stay compliant with treatment in the community.
16. The offender acknowledged to the author of the report that he was driving dangerously during a police pursuit but was unable to recognise the impact this had on community safety. The author notes, "overall Mr Johnson lacked empathy or concern for the impact of his offending and how his actions have affected the victims."
17. However, the offender expressed a willingness to undertake interventions to address his offending behaviour. The author of the report indicated that this would appear to be a superficial response given his past disregard of orders and his repeated refusal to attend appointments for the purposes of the preparation of the report. The offender has been subject to a number of institutional misconduct charges whilst being in custody on this occasion. He is assessed as being at a high risk of reoffending.
18. Given the assessment that the offender is at a high risk of reoffending, taken with the substantial criminal history, I cannot find on balance the offender is unlikely to reoffend. Further given that history, the contents of the sentencing assessment report and the failure to engage in the past I cannot find that there are good prospects of rehabilitation. Indeed, I am extremely guarded about the offender's prospects of rehabilitation. There is nothing before the court on which any finding could be made that the offender is remorseful. Realistically, counsel accepted as much at the sentence hearing.
19. Be that as it may, I am of the opinion that there should be a finding a special circumstances in this matter. Given the risk of institutionalisation the offender will need intensive and extensive supervision so far as his appropriate reintegration into the community is concerned. The offender is on the buprenorphine program and has indicated a willingness to remain on that program upon his eventual release. There will also need to be intensive and extensive supervision to ensure that the offender receives the appropriate treatment and counselling for substance abuse issues.

General remarks

1. Mr Jackson submitted, appropriately, that this would be an appropriate matter for an aggregate sentence. If separate sentences were imposed there would need to be some meaningful partial accumulation of sentences, particularly in respect of the aggravated Break Enter and steal, Destroy Property by fire and Police Pursuit matters.
2. There is also an issue of parity so far as the co-offender Caine Fox is concerned. Fox was sentenced to an aggregate sentence of four years. However, Fox was not charged with the Destroy Property by fire or the Police Pursuit matter. As I have indicated previously, the value of the property stolen in respect of the aggravated Break Enter and Steal matter was not before the court. Fox was sentenced ex tempore and I do not have a transcript of my remarks. The sentence imposed on this offender must be greater than that imposed on the co-offender.
3. I accept there are issues of general and specific deterrence to be addressed in this sentencing exercise. Citizens have the right to be able to go to bed at night without being concerned about their home being violated and their property being plundered by people such as this offender and co-offender. As I observed when dealing with the facts of the matter, the destruction of the Audi and the damage to the home by fire was simply an act of wanton destruction. I also note from the facts that when the pursuit was initiated by police the pursuit was allocated the number 22/3614. The number of pursuits is indication enough for the need for general deterrence.
4. While the offender at 22 years of age is still a young man, which must be part of the instinctive synthesis process of determining the appropriate sentence, his age is of no assistance to him in respect of the driving matters. The Court of Criminal Appeal in a number of matters has emphasised the need for general deterrence in driving matters involving young offenders. For example, see the additional comments of Bell P (as the Chief Justice then was) in Byrne & Cahill v R [2021] NSWCCA 185 at [2]-[5].
5. The Crown provided helpful, comprehensive, written submissions. Much of the content of the Crown's submissions goes to findings of the seriousness of the various offences. I have dealt with the seriousness of the matter when dealing with the facts. I have previously noted the Crown's submission relating to the use that the court should make of the offender's extensive criminal history.
6. Mr Jackson made oral submissions in which he noted appropriately that the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty and noted that the matter has been dealt with relatively expeditiously. He conceded that the court would be unable to make any finding of remorse. Counsel submitted that I could still find that the "Bugmy factors" are present. I have done so for the reasons set out earlier in these reasons. I accept that there is a real risk of institutionalisation so far as the offender is concerned. Mr Jackson also submitted that the criminality was no more than mid range and that the offences were neither sophisticated nor planned. I accept the submissions of counsel.
7. I have done my best so far as dealing with what little subjective material is available. However, essentially I have to deal with the matter as best I can with what little subjective material is available.
8. In passing sentence I will need to have regard to and give proper effect to sections 3A and 5(1) of the Crimes (Sentencing Procedure) Act 1999. Section 3A sets out the purposes of punishment, namely: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
9. Section 5(1) of the Act provides: A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
10. In the matter presently under consideration given the offending, the maximum penalties, the standard non-parole period in respect of one of the offences, criminal history of the offender and the issues of general and specific deterrence clearly there must be a sentence of imprisonment imposed in this matter. I did not understand counsel for the offender to submit otherwise.
11. The Crown Sentence Summary indicates that the offender has been in custody on these matters since 30 December 2022, and accordingly in the absence of any other submissions that is the date on which I will commence the sentence. I note that the SAR records that the offender has served other sentences while in custody.
12. This is an appropriate matter for an aggregate sentence. The sentences that would have been imposed had separate sentences been imposed are as follows:

Substantive Matters Sequence 1: Enter building/land with intent to commit an indictable offence, a total sentence of 15 months indicating a starting point of 1 year 8 months (20 months). Sequence 3: Aggravated Break Enter and Commit Serious Indictable offence, a non-parole period of 1 year 8 months with a balance of term of 11 months, making a total sentence of 2 years 5 months, indicating a starting point of 3 years and 3 months. This is marginally more than that indicated in respect of the co-offender Fox as the court is informed of the value of the property taken. Sequence 5: Destroy Property by Fire in Company, a total sentence 2 years and 7 months indicating a starting point of 3 years 6 months. Sequence 8: Knowingly Drive Stolen Conveyance, a total sentence of 13 months indicating a starting point of 18 months. Sequence 11: Drive Manner Dangerous in a Police Pursuit, a total sentence of 18 months indicating a starting point of 2 years. Sequence 12: Knowingly be carried in Stolen Conveyance, a total sentence of 13 months, indicating a starting point of 18 months.

Section 166 Certificate Matters Sequence 9: Drive in a Manner Dangerous, a fixed term of 4 months imprisonment. Sequence 10: Drive Never Licensed: Conviction and no further penalty, i.e. dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act, 1999.

Orders

1. In respect of all matters to which the offender has pleaded guilty he is convicted.
2. The offender is sentenced to an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years and 3 months.
3. The non-parole period will date from 30 December 2022 and will expire on 29 March 2026. The balance of term on parole of 1 year 9 months will commence on 30 March 2026 and will expire on 29 December 2027.
4. The offender will be eligible for release at the expiration of the non-parole period and I recommend that release.
5. The sentence indicates a finding of special circumstances, the reasons for which have been set out earlier in these reasons. The non-parole period is 65% of the total sentence.
6. In respect of the Drive Manner Dangerous in a Police Pursuit, the offender is disqualified from driving for 2 years. In respect of the Drive in a Manner Dangerous to the Public matter attaching to the s. 166 certificate, the offender is disqualified from driving for 12 months. It is the intention of the court that these periods of disqualification are concurrent.
7. The court makes an order of compensation payable to the owner of the Audi, Mr Tristan Gilchrist in the amount of $30,000.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2023