R v Johnstone [2007] VSCA 193

**2 (What follows is taken from the Crown summary, which was before the sentencing court). In 2003, Noradin Mustafa was the owner of a milk bar situated at 23 Olsen Place in Broadmeadows. He employed Koda Hamoud there on a full time basis and Ceyla Tariman on a part-time basis.

3 Some time after 11.30 pm on Saturday 20 December 2003, three men entered the milk bar, violently overpowered Hamoud and Tariman, took them upstairs and tied them up. These three men, together with three others, then stole large quantities of cigarettes, quantities of phone cards, cigarette lighters, cash, stamps and illegal tobacco called "chop chop", upon which no government duty had been paid. They also stole Hamoud's white Ford Taurus sedan.

4 Once the thieves left the premises, the two men untied themselves and alerted the police. A police car on patrol saw the convoy of at least three cars and gave chase. Two cars, full of stolen goods, were abandoned by the thieves and recovered by the police. One of these cars was the stolen car belonging to Hamoud. The third car got away. A fingerprint was found on a packet of cigarettes discovered in the abandoned cars. Eventually this was matched with the fingerprint of the appellant. Police flew to New South Wales and interviewed him on 12 July 2005.

5 In that interview he told police that he had been contacted by a friend to fly to Melbourne to help move some chop chop, and that he would be paid $800 for doing it. When he flew to Melbourne he was met by two men who drove him to a café, where he met three other men. There was another "Aussie bloke" in the group, but the other four were speaking Arabic from time to time.

6 The group set off and eventually arrived at a laneway where three cars were parked. One of these was a blue Mazda which had been stolen that evening in Sydney Road, Brunswick. They then began to load chop chop and tobacco into the three cars which were parked at the back of the milk bar. In the course of the raid, the two male shop assistants were overpowered, tied up and assaulted. The appellant was not a party to this aspect of the offending on the night. He was found not to have been complicit in the armed robbery, false imprisonment or intention to inflict injury.

7 In his interview with police, the appellant was fully co-operative and made full admissions. He stated that he went into the shop where he could hear people talking upstairs. He took out $120 to $200 from the cash register and some chop chop and helped to load the car. When they had finished he jumped into the back of a white Commodore with the other men and left the scene. Shortly afterwards, the police tried to intercept them and the cars split up. The car carrying the appellant managed to get away.

8 That car travelled to a garage under a building where the car was unloaded. The appellant was then dropped off at a bus stop, and after a while he was picked up by another man and taken to a hotel where he spent the night. The next morning, he was picked up by a man who drove him and two others to Sydney. Once in Sydney, those men tried to pay him off with phone cards, which he refused. He was not paid his $800. The value of the property stolen from the milk bar was approximately $55,000, of which approximately $45,000 worth was recovered.

9 Approximately 12 months after the events, police were able to identify the appellant by his fingerprints at the scene. At that time, he was undergoing sentence in NSW. On 24 June 2004, he was further sentenced in NSW on charges of assault police and exceed prescribed concentration of alcohol, and other driving offences, for which he received a total effective sentence of 18 months' imprisonment with a non-parole period of 4 months. As a consequence of the further charges, his parole was cancelled and he was returned to custody on 6 September 2004. He was bailed on 8 November and then returned to custody on 1 December 2004 to undergo a 12 month sentence for burglary and escape from lawful custody. Once that sentence was completed in NSW, he was extradited to Victoria in October 2005 to face these charges.

10 One other person was found to have matching DNA and fingerprints in the case. At the time of the appellant's sentence, that person had not been charged. He was in prison in NSW and it was intended that he be charged once he had completed his sentence there. No other co-offenders have been dealt with by the courts.**

**11 The grounds of appeal are threefold, but in substance the ground is that each of the individual sentences, the head sentence and the non-parole period is manifestly excessive. In support of that ground, it has been argued by Mr Dickinson that her Honour failed to give sufficient weight to the mitigating factors in favour of Mr Johnstone and failed to give sufficient weight to the principle of totality.

12 I consider that the appeal should be dismissed. In my opinion, the judge dealt in an exemplary manner with all of the relevant matters which needed to be addressed.

13 It was submitted for Mr Johnstone that his role in the criminal activity was misapprehended. This submission is unfounded. It is clear from the sentencing remarks that the judge accepted what was said on Mr Johnstone's behalf on the plea, that he had played a minor role and was not complicit in any of the violence. At paragraphs [14] and [15], the judge said:**

Briefly, for the purposes of sentencing you I accept that you played a minor role in these offences. You willingly provided your services to others who recruited you to travel from New South Wales to Victoria for the sole purpose of assisting in the movement of illegal tobacco known as "chop chop" from a raid of a milk bar situated at 23 Olsen Place, Broadmeadows.

In the course of that raid, involving five co-accused, two male shop assistants were overpowered, tied up and assaulted. Their victim impact statements were filed in these proceedings. However, given that the Crown accepts that you were not the person who committed the armed robbery, nor were you acting in concert, nor complicit in the agreement to do an armed robbery, false imprisonment or intention to inflict injury, I have not taken into account the victim's injuries and the effects of their injuries in formulating your sentence.[1]

14 At paragraphs [31] and [32], the judge said:

In sentencing you, I have had regard to your role in the offending and accept that you played the lesser role as a "hired hand" and that you were not responsible for the planning and execution of this professional operation.

You have pleaded guilty at early opportunity and I accept that you are not complicit or involved in the acts of violence perpetrated against either of the victims.

**15 As to the mitigating factors, it is clear, and indeed Mr Dickinson did not argue to the contrary, that her Honour had regard successively to the plea of guilty,[2] the fact that it was an early plea,[3] the fact that Mr Johnstone had shown remorse,[4] and the fact that there had been delay.[5] In relation specifically to the issue of delay, her Honour was, properly, referred by counsel for Mr Johnstone to the powerful statement of principle of Street CJ in Todd.[6] Her Honour expressly stated that she had taken those principles into account.[7]

16 As I said recently in Hay's case[8], the appeal against sentence is not a second bite at the cherry. It is not an opportunity to re-run arguments in the hope that three different judges will be persuaded to take a different view from the sentencing judge. The question for the appeal court is not what we would have done had we been called on to sentence the offender, but whether error has been demonstrated such that we can be satisfied that the sentencing discretion miscarried. This Court will only interfere where it is demonstrated that something has gone clearly wrong. [9]

17 As counsel for Mr Johnstone properly conceded, all relevant matters were considered by the sentencing judge. It was not suggested that her Honour considered any irrelevant matters, nor that any relevant sentencing principle was overlooked. The reasons provide, in my opinion, a clear account of the sentencing judge's evaluation of the matters put before her. In a case like this - and, as I said in Hay, most sentencing reasons from the County Court and Supreme Court have these characteristics - appellate intervention is likely to be quite exceptional.[10]

18 Of course it is always open to an appellant to argue that the conclusion arrived at was not reasonably open to the judge. Mr Dickinson embraced that task forcefully and persistently, and put everything which could have been said on Mr Johnstone's behalf in that regard. What Mr Dickinson needed to establish, but in my opinion failed to establish, was that the sentencing judge could not reasonably have imposed a sentence of three years, or a total effective sentence of three years and six months, or a non-parole period of two years.

19 The submission of manifest excess is to be regarded as a submission in these terms: "No reasonable judge could have imposed that sentence on this offender for this conduct, given his antecedents." So to state the test is to underline just how stringent it is. Arguments about the weight given to particular sentencing considerations fall to be tested by reference to the ultimate result, as counsel for Mr Johnstone acknowledged in written submissions and again before us this morning. Unless a matter is plainly misstated by the judge so that its character and significance has been obviously misapprehended, it is simply impossible for an appeal court to discern what weight is given to any particular factor. The argument on appeal must necessarily focus on whether, having regard to all the relevant matters, the sentence imposed was within the range reasonably open to that judge in the particular case.

20 The written submissions for the Crown helpfully provided the Court with the Sentencing Snapshot published by the Sentencing Advisory Council in August 2006 entitled "Sentencing Trends for Aggravated Burglary in the higher courts of Victoria". The Crown's submissions drew attention to two tables in that snapshot which show that, for the period 2000-2001 to 2004-2005, sentences of imprisonment for aggravated burglary ranged from three months to seven years; the median term of imprisonment was two years; the average was between two years and two years and four months; and the most common total effective sentence was two years.

21 Those statistics are necessarily of limited assistance because, of course, they give no information about any of the particular cases in which those sentences were imposed. At the same time, they do indicate the range within which sentences are imposed for this offence. As I put to senior counsel for the Crown, those figures show that the most serious examples of aggravated burglary to have come before Victorian courts in those years received sentences of seven years or below. Had that upper limit been, for example, 12 or 15 years, then it would be clear that sentencing judges were operating in a different range, with different outer limits.

22 The significance of those figures, it seems to me, is that it is very difficult for an appellant in Mr Johnstone's position to say that the sentences imposed on him were outside the range within which a sentencing judge could reasonably have sentenced him for this conduct, given his antecedents. He had multiple prior convictions for theft, handling stolen goods and going equipped to steal. He also had a prior conviction for assault with intent to rob.

23 Aggravated burglary is a very serious offence. That that is so is made clear by the fact that Parliament has fixed a maximum of 25 years for this offence, as for armed robbery. I accept, of course, as Mr Dickinson submits, that there are very many gradations of seriousness of that offence, but a sentence of three years against a maximum of 25 has objectively to be viewed as at the low end of the range which Parliament must have had in mind for that offence.**

24 In relation to general deterrence, Mr Dickinson drew attention to what the judge said in paragraphs 34 and 35, as follows:

Aggravated burglary is very serious, involving as they do the violation of private property. There is a need to emphasise general deterrence. As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account the need to protect the community from you and bear in mind the likelihood of your reoffending.

I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose just punishment. Mr Johnstone, these are without doubt very serious offences and in all the circumstances I have no alternative than the imposition of a custodial sentence.

He argued that, because of the mental dysfunction of his client, considerations of general deterrence and denunciation should have been "sensibly moderated". As he pointed out, that is a phrase which has recurred in the judgments of this Court since Batt JA first used it in Yaldiz[11]. Mr Dickinson argued that all of the principles recently re-stated in R v Verdins[12] were engaged in this case.

25 The principles linking mental illness to sentencing, as enunciated in R v Tsiaras[13], were restated in Verdins as follows:

Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.[14]

**26 Mr Dickinson's submission was that the judge fell into error by not having "sensibly moderated" the sentence to take account of Mr Johnstone's psychiatric disabilities. In my opinion, there was no error in that regard. (This was not put as a specific error, but I am content to deal with it as if it had been argued on that basis.)

27 The only relevant material before the judge was the report of Mr Ian Joblin, a forensic psychologist whose reports are often seen in criminal matters in this Court. Mr Joblin referred in his report to a psychiatric report which had been available to him. As Kellam JA pointed out in the course of argument, counsel for Mr Johnstone on the plea elected not to furnish the psychiatric report to the sentencing judge, on the ground that it was materially inaccurate. The significance of that, of course, is - as Kellam JA pointed out - that her Honour did not have what must be assumed to have been very important information about Mr Johnstone's psychiatric history. This underlines the point that a sentencing judge can only act on the material with which she is provided.

28 The first principle in Verdins is that moral culpability may be reduced if the relevant impairment of mental functioning affected the person at the time of the offending. But, as I pointed out to Mr Dickinson, there was nothing in the Joblin report which shed any light on that issue whatever. The relevant paragraph from Mr Joblin's report refers to the commission of the offences and notes that there was no involvement of alcohol or drugs, but says nothing whatever to suggest that the mental dysfunction should be regarded as mitigating the seriousness of what Mr Johnstone had done. Mr Joblin said:**

I note in relation to the offences there is no suggestion of any involvement of alcohol or drugs. It seems that he was offered an amount of cash to complete a job in Melbourne. He acknowledged that he made an error in judgment in accepting that. He reported that he did not hurt anyone. He apparently loaded a van and other cars but it seems he had had nothing to do with the tobacco prior to that, including the purchase, sale or disposition of the tobacco. It seems he was simply the 'gopher'. Mr Johnstone acknowledged that and the inappropriateness of his behaviour. He indicated that he was not paid. It seems that after the incident he was driven back to Sydney.

**29 As the Court said in Verdins, what the sentencing court needs is not the label which a psychiatrist or a psychologist might apply to the offender's condition, but specific expert evidence as to the effect which the condition had, or is likely to have had, on the offender at the time.[15] There was no such material before the judge and, in my opinion, no basis upon which she could have concluded that there was any relevant diminution of moral culpability or, as a result, any reason to think that Mr Johnstone was not a suitable vehicle for general deterrence. That conclusion was, as I suggested to counsel, reinforced by the fact that Mr Johnstone was a recidivist in offending of exactly this kind. Accordingly, I see no error in what her Honour said in the paragraphs set out above.

30 It is also notable that there was medical material in existence about Mr. Johnstone's head injury. That material was before Mr Joblin but evidently was not before the sentencing court, and it is not before us. Mr Dickinson has very properly drawn attention to what Mr Johnstone said at interview about that head injury - in particular, that it had occurred before this offending took place. Again, there was simply no material before the sentencing judge to enable her to form any view about whether the suffering of that injury, or the hospitalisation associated with it, in any way moderated the appellant's culpability for what was, on its face, a very serious offence.

31 Her Honour commented in the course of her reasons that there appeared not to have been a comprehensive psychological assessment of Mr Johnstone. She gave some consideration to the possibility of ordering a report for the court. In the event, that step was not taken, and there is no criticism at all to be made of her Honour for that decision. She was, unfortunately, in a position where there was material in the possession of counsel for the appellant which he evidently was unable to give her, and which would have had a bearing on these very matters.

32 Given the potential significance of questions of impaired mental functioning, as explained in Verdins, judges should feel no hesitation in ordering an independent report of that kind if, having regard to the principles in Verdins, they apprehend that such a report may shed light on the applicability of one or other of those principles to the case at hand. If, as I understand to be the case, there are significant delays associated with the obtaining of such reports from Forensicare, then it is to be hoped that the decision in Verdins has underlined the vital importance of good quality information of this kind for sentencing judges, and the absolute necessity of there being adequate public funding to enable those reports to be made available in good time.

33 I want to return to the issue of delay. As Mr Dickinson drew to our attention and as was pointed out on the plea, Mr Johnstone was first identified as being connected with this incident in early December 2004. He was interviewed in July 2005, when he made full admissions. He was extradited to Victoria at the end of October 2005 and spent more than a year in gaol in Victoria before being sentenced on 10 November 2006. I have already said that the matter of delay as a mitigating circumstance was properly addressed by her Honour, but it is important to note her Honour's remark (in the course of the plea) as follows: "It's a pity [this matter] has taken so long to come before the court as a plea. That's an indictment of our system."

34 This is the second time in recent weeks when I have noted, and endorsed, a concern of that kind expressed by a County Court judge. It is important that judges express their views on matters of that kind, so that this Court - and the responsible authorities - can be made aware of problems of delay. These expressions of concern by judges who deal with criminal matters every day should be listened to, so that matters are brought before the court quickly where, as here, it is obvious that there will be a guilty plea.

35 Finally, I simply wish to record the submission, forcefully made by Mr Dickinson, about the misfortune which has attended his client's life. As Mr Dickinson said, Mr Johnstone is a person whom luck has overlooked. Reading Mr Johnstone's history excites feelings of sympathy and concern. He has had few, if any, good opportunities and a quite inordinate number of difficulties in his life already.

36 Ironically, someone who has had such extensive institutionalisation - and hence, when he reoffends, is a candidate for more institutionalisation - is someone for whom prison is not likely to rehabilitative. Ideally one might have thought rather of a correctional solution (were it available) which provided him with support, encouragement, supervision, direction, a helping hand, to rescue the rest of his life. Directed rehabilitation support of that kind would surely be less costly than keeping him in jail, and would be very much in the public interest. Mr Johnstone's father stands ready to be a support person - and employer - for him upon his release. I certainly hope that his release on parole proves to be the beginning of a change in his life.

37 The sentencing reasons of the judge were clear, concise and thoughtful. It is apparent that she gave careful consideration to all relevant matters of mitigation. Ground 1 cannot be sustained. She took into account the issues of delay and the question of totality in accordance with Mill v The Queen[16] In my view, no error has been identified in her Honour's consideration of those matters.

38 Insofar as ground 3, the ground of manifest excess, is concerned, it is often said that the question of manifest excess admits of little elaboration. In all of the circumstances of this case, I do not consider that the individual sentences, the head sentence or the non-parole period can be said to be manifestly excessive. Notwithstanding the limited role of the appellant in the offences in question, the offences committed by him were serious. The appellant had a number of relevant prior convictions. The judge took into account the evidence before her of an opinion of psychologist Mr Joblin to the effect that the appellant was psychologically not well. Notwithstanding the existence of that report and the fact that the appellant had been examined by a psychiatric registrar who reported as late as 2 May 2005, there was no psychiatric evidence before her Honour. In my view, the report of Mr Joblin did not oblige the sentencing judge to find that the circumstances of the appellant fell within the Verdins principles.

39 I agree with the reasons of the President and Kellam JA and have nothing to add.

[6] [1982] 2 NSWLR 517, 519.

[8] [2007] VSCA 147.

[9] See Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627 (Kitto J).

[11] [1998] 2 VR 376, 381. (Winneke ACJ and Hampel AJA agreed).

[12] [2007] VSCA 102.

[13] [1996] VicRp 26; [1996] 1 VR 398.

[14] Above n 12, [32].

[15] [2007] VSCA 102 at [8], [13].

[16] (1988) 166 CLR 59.