R v Johnston [2017] NSWDC 176

District Court New South Wales

Medium Neutral Citation: R v Johnston [2017] NSWDC 176 Hearing dates: 5 May 2017 Date of orders: 05 May 2017 Decision date: 05 May 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an aggregate term of imprisonment consisting of a non-parole period of three years with a head sentence of five and a half years Catchwords: CRIMINAL LAW – Sentence – Form 1- Aggravated break, enter and steal – In company – On conditional liberty at time of offending – Offender had disadvantaged upbringing – Released from custody without appropriate support. Category: Sentence Parties: The Crown Shane Michael Johnston Representation: Solicitors: Director of Public Prosecutions – Crown Aboriginal Legal Service - Offender File Number(s): 2016/9153

SENTENCE 1. HIS HONOUR: When sentencing for offences committed against children Judges invariably recognise that children are vulnerable and need to be protected. Conversely when sentencing offenders who childhoods were far less than ideal, it is also important to remember such vulnerabilities. I have said this before and I will say it again, not all of us have the same advantages in life. 2. In Mr Johnston's case his mother had a significant problem with alcohol. This interfered with her ability to care for Mr Johnston and to provide him with appropriate guidance, boundaries and even food at times. From a very young age he was left to his own devices. It was in such circumstances that he began associating with antisocial friends, he began drinking, he began using drugs, and in order to provide some of the most basic necessities of life he began to steal to get food. 3. He now has, at the age of 42, a lengthy criminal history. Although it is many years since he was a child it is clear that the sad upbringing he received is a significant factor in his continued offending. 4. He was released from custody on parole in November 2015. He tells me that no real plan had been put in place for his release. He went to a boarding house where he could stay for three days, that having been arranged by Corrective Services authorities. Once those three days elapsed he was depressed, he had no place to go and it was in those circumstances that he committed the offences I will soon describe. 5. Another significant factor was this, he discovered that his partner had formed a new relationship with one of his friends. So, although, many of the challenges are the sorts often faced by prisoners who are released from custody he had an extra burden or two. 6. The first offence for which I must sentence him is an offence of break, enter and steal, this was the offence committed three days after his release from custody when the offender went to commercial premises in Haymarket. 7. He broke into those premises by forcing open the glass door, inside he ransacked the premises and stole two laptops before leaving. 8. In the early hours of the following day he, together with another man, went to different commercial premises, this time in York Street. What they did is largely captured by CCTV. Helpfully the Crown has provided stills from such footage in the agreed facts on sentence. That footage reveals Mr Johnston and his co-offender attempting to get into the commercial premises through some glass doors. They were unable to succeed. They then went to a nearby window which allows entry to a medical practitioner's premises. They smashed the panel above the locking latch which allowed them to open a window and gain entry to the doctor's surgery. Once inside he and his co‑offender again took a significant amount of property after having ransacked the premises in their efforts to find valuables. They took an iPad, three laptops, two hard drives and a Dictaphone. That is an offence of aggravated break, enter and steal, the circumstance of aggravation being that Mr Johnston was in custody. 9. Just across from that medical practice was another one. The two offenders forced open the glass door to that medical practice and went inside and stole some medicine, an examination kit, a glucometer, a stethoscope, and yet another laptop, as well as a prescription book. Again, in their efforts to obtain valuables, they ransacked those premises. That is an offence of aggravated break, enter and steal which appears on a Form 1 to be taken into account when I sentence the offender for the other offence of aggravated break, enter and steal. Again, the circumstance of aggravation for the offence on the Form 1 is that Mr Johnston was in company. 10. It was not long before the offender was identified as being one of the people involved. The CCTV footage revealed his face clearly at times. The relevant images were distributed amongst New South Wales Police. Because of Mr Johnston's record he was well known to many police officers and he was soon identified as one of the people responsible. Police arrested him when he was in custody on other matters. 11. I have already spoken about the offender's background. He has a significant criminal history, largely for offences of a similar type to the ones for which I must sentence him and given that, as I said earlier, he committed the first of those offence s only three days after being released from custody, I have to give some serious consideration to his prospects for rehabilitation. I certainly cannot say that they are good but Mr Johnston, who gave evidence before me today, recognises the problems that he will face upon his eventual release from custody for the sentence that I will shortly impose. He has plans. He intends to contact a place of accommodation six months before his release date, Foster House in this case. He has been told that he can get accommodation there which will give him time to get on his feet. 12. Mr Johnston has plans also to deal with another issue, he is currently on the methadone program and has been for some time. He tried to get off methadone once before without any other medication. He told me that this did not end well, he was sick for six months and so eventually he gave in. Giving in, in his case, did not mean going back onto methadone but using heroin, and so he intends to remain on the methadone program whilst in custody but upon release he hopes that buprenorphine which will eventually enable him to be completely drug free. 13. There are clear indications that Mr Johnston is heading in the right direction. In contrast to his earlier times in custody there have been no reports on his custodial history of him having failed or refused urine analysis. That supports his evidence that he has not been using drugs since going into custody in November 2015. He has kept himself busy whilst in gaol working in the textile area and has found it difficult to do any courses because of his movements, of course, over which he has no control throughout the various custodial centres. 14. Mr Johnston expresses his remorse. He wrote a letter to me which was tendered and gave oral evidence as well. Although he candidly acknowledged in answer to a question from the Crown that he had said that he was remorseful before, I do not mean to suggest that he is not remorseful on this occasion but it is obvious that sorrow for what you have done is not a guarantee that you will not do exactly the same in the future. 15. Mr Johnston pleaded guilty at the earliest opportunity and so the sentence I impose upon him will be 25% less than it would otherwise have been. 16. He was on parole at the time of these offences. His parole was revoked, one of the circumstances being the commission of these new offences, and so whilst it is an aggravating factor that he was on conditional liberty it is important that I do not double count. Accordingly, I will commence the sentence that I will shortly announce on 18 May 2016. Thus, part of his time in custody is referrable to serving the balance of parole. 17. I have received written submission from both the Crown and Mr Wong on behalf of Mr Johnston. One area of difference in the submissions of the lawyers concerns the objective gravity of Mr Johnston's offences. It is important that I resolve that issue. I find that the offences were significantly below the middle of the range of objective seriousness for offences of the types for which I must sentence Mr Johnston. I take into account that for the aggravated offence the circumstance of aggravation was that Mr Johnston was in company. There are many more serious circumstances of aggravation. I take into account that the serious indictable offence in each case was stealing, and once again there are more serious indictable offences which are covered by offence of break, enter and commit serious indictable offence or aggravated break, enter and commit serious indictable offence. And I take account in a significant way that the premises into which Mr Johnston broke were, on all three occasions, commercial premises. There is a significant difference between breaking into someone's home and breaking into someone's office or doctor's surgery. Part of the harm that is caused by a lot of break, enter and steal offences is the harm that is caused to householders who often experience a significant sense of anxiety at the knowledge that their home is not as safe as they thought it was. Also, in commercial premises there are less likely to be taken items of sentimental value. That is not to suggest that Mr Johnston did not get a great deal of loot from his offending but stealing from someone's home often involves taking items of little monetary value which are deeply missed by the owners of such items. And of course it is much less likely that there will be people in commercial premises at the time Mr Johnston committed his offences than would have been the case if he was breaking into residential homes. So that is why I say that in each case I find that the offences are significantly below the middle of the range of objective seriousness. 18. I take into account, of course, the maximum penalties for each of the offences and for the aggravated offence the fact that it has a standard non‑parole period. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. 19. There are clearly special circumstances in this case, the Crown acknowledged that very early on in her submissions. Two particular circumstances which justify a variation from the statutory ratio are these: 1. Mr Johnston's time in custody is to be largely accumulated on an earlier sentence with, and I have said this repeatedly but it is worth repeating, only three days in the community between periods of incarceration, and 2. The other circumstance is of course that Mr Johnston has spent a great deal of his time in gaol. As the commission of these offences demonstrates he will need a great deal of assistance upon his release from custody. In this regard I note that a forensic psychologist, Bradley Jones, whose report was tendered today has prepared a list of things that should be done in order to reduce Mr Johnston's risk of recidivism. As the psychologist notes, not only would that be in Mr Johnston's interests but also it will be in the interests of the community in general. 1. It is my recommendation to the parole authorities that they pay careful attention to the matters suggested by the psychologist. 2. I ask that a copy of Mr Bradley's psychological report be attached to the warrant for the assistance of the Probation and Parole authorities. 3. I will impose an aggregate sentence of imprisonment. Were I not to have done so for the offence of break, enter and steal I would have sentenced Mr Johnston to imprisonment for four years, for the aggravated break, enter and steal taking into account the Form 1 I would have sentenced him to imprisonment consisting of a non-parole period of two and a half years with a head sentence of five years. 4. The aggregate sentence I impose is as follows: 5. A non-parole period of three years to commence from 18 May 2016 with a head sentence of five and a half years. 6. Thus, Mr Johnston will be eligible for release on 17 May 2018.