JOHNSTON, A R

STATE OF TASMANIA v AARON ROY JOHNSTON                 18 DECEMBER 2019

and JARROD McKENNA

COMMENTS ON PASSING SENTENCE                                                         GEASON J

Mr McKenna, you appear for sentence on 12 counts of stealing, two counts of burglary, and four counts of receiving stolen property.  You have pleaded guilty to all charges.

Your offending begins in March 2017 when you were in Devonport. Your whereabouts were ascertained from Telstra phone records, and Facebook entries. A Toyota Hi Lux valued at $2400 was stolen from a driveway at Stoney Rise. That vehicle has not been recovered but some of it was found in your possession as part of another vehicle. That vehicle had registration plates which had been taken from a vehicle that had been written off in an accident in September 2016.

On 30 March 2017 you returned to Devonport. There you burgled a shed in William Street by cutting the lock. From inside you stole two Polaris off-road vehicles and two chainsaws with a combined value of $13,500. The off-road vehicles were recovered.

On 1 April 2017 again you travelled to Devonport. You entered a shed on a property in York Street and stole a motorbike worth about $5000. Subsequently, a friend of the complainant in that case purchased some bike wheels on “gumtree”. He asked the complainant to pick them up for him from a residence in Bridgewater. That residence was occupied by an associate of yours. The complainant found his bike wheels there. No more of the bike was recovered.

In May 2017 you were again in Devonport. A Nissan patrol and a quantity of tools were stolen. The vehicle was worth about $40,000 and the tools $5000.The wreck of that vehicle was found at Elderslie along with several other wrecked vehicles. Some additional parts of the vehicle were found at your co-accused’s residence. Your offending also involved taking a Toyota Hi Lux worth approximately $20,000, UHF radios, a welder and some other items to a total value of about $10,000. This property was recovered by its owner.

In April 2017 a Toyota Hi Lux and a quantity of property was stolen in Margate, in the south of the state. The property included tools, like a nail gun. Some of the stolen property was located in another vehicle used by you in July 2017.

In May 2017 you stole another Toyota Hi Lux vehicle. It was taken from his home in West Moonah. It was worth about $7000. The remains of this vehicle were found with those of other vehicles, in an area under your control on a site close to your home..

The next charge of stealing relates to a silver Nissan patrol stolen in May 2017. A quantity of tools was also taken. The vehicle remains were located at Pelham. Five wheels from that vehicle, with tyres affixed, were located at your residence; some parts were located at the residence of your co-accused.

Not long after that you stole another Toyota Hi Lux along with its contents stolen. The vehicle was worth about $8000 and the contents over $1000. The remains of this vehicle also located at Pelham.

In May 2017 a property at Howden was entered and damage caused. A trail bike and accessories and a Nissan patrol were stolen. The vehicle was worth in excess of $50,000. The remains of that vehicle were located at Tanina Bluff with parts of other vehicles the subject of the indictment. It was completely dismantled. Some parts were found at your co-accused’s home. Also located at Eldersleigh  were the remnants of a Toyota Hi Lux stolen from Howden in May 2017.

Over two nights in May 2017 you stole vehicles from Salvator Road and Cavell Street in West Hobart. They were worth nearly $6000 and $10,000. About $1000 worth of personal items were in one of the vehicles. The remains of both vehicles were located by police at Pelham in a substantially wrecked condition. Again, as with other charges you are linked to this offence by Telstra Tower usage, but also from surveillance cameras set up at Pelham by police.

In May 2017 you stole a Toyota Hilux from inside a locked shed at the Jackson Motor Co in Glenorchy. The theft occurred after hours. Again Telstra Tower usage placed you in that area at that time. That vehicle was found in a wrecked conditione as well. It had been worth about $8000.

In June 2017, you stole two Nissan patrols from Judbury and Gardner’s Bay. They were worth $20,000 and $8000 respectively. Neither vehicle has been recovered. Again you have been linked to them through phone usage.

In June 2017 a Toyota Hi Lux was stolen from the Jackson Motor company. In respect of this vehicle you have accepted by your plea the Crown’s case that you supplied information which enabled an associate to steal that vehicle. It was worth about $11,000.

The total value of vehicles stolen by you is in excess of $180,000.

I have regard to the matters that have been put to me by your counsel. I note that you were arrested at work, and you lost your job immediately.  In respect of that work, I have a reference which indicates that you are a valued employee.  I take account of that as evidence that if you choose to behave lawfully, you are capable of making a useful contribution to the community.  As a youthful offender your rehabilitation is an important sentencing consideration, and one I afford considerable weight.

It has been put to me that you are one of a larger group involved in the systematic theft and stripping of motor vehicles.  It is submitted that the group involved up to eight people who would break into vehicles and take parts from them, and that you were encouraged to participate in these activities in the manner alleged by the State.  It is not submitted to me that you assisted authorities by naming these other people.  I nevertheless accept the submission that you cut ties with this group after June 2017, and that you have had no contact with them since.  I accept that you had desisted from criminal conduct prior to arrest. Apart from a driving offence in late 2017, there is no other criminal behaviour evident in your record or otherwise alleged.  I accept therefore the submission that you are a young offender who has demonstrated that he is capable of rehabilitation.

By the same token, you conduct has caused significant damage to property acquired by members of this community through their hard work and effort.  They are entitled to the protection of the law and a sentence from this Court which upholds those rights. I have not received any victim impact statements, but I accept that the loss of a motor vehicle will have caused significant distress and inconvenience to the complainants in these cases.  Some have lost tools which are, in all likelihood, used in the course of their earning a living.

In sentencing a youthful offender I am required to give prominence to the prospect of your rehabilitation, as I have noted.  And, whilst general deterrence has a more muted function when sentencing a young offender, it cannot be ignored altogether.  That is why, in my view, notwithstanding your youth, a term of imprisonment is necessary for the offending in which you have engaged.  This was a persistent course of conduct involving serious dishonesty and planning, and significant detriment to many people. The value of the property lost is significant.

I am required to give effect to the principle of totality. That requires me to impose a sentence which is not crushing.  I adopt the principles, and the approach, articulated in the High Court in Mill and relied upon by the Court of Criminal Appeal in Fletcher-Jones.

For your plea of guilty I discount the penalty I would otherwise have imposed by 5%.  It was not an early plea of guilty, but I accept that a utilitarian benefit accrues nevertheless in consequence of it. This would have been a long trial.  .

You are convicted.  Balancing the need to deter others from behaving this way, with your youth, I sentence you to three years’ imprisonment.  That sentence is backdated to when you went into custody.  I am required to give consideration to whether all or part of that sentence should be suspended. I have decided that to do that would be to ignore relevant sentencing considerations.  But I also consider that the imposition of the minimum non-parole period adequately addresses your personal circumstances. I also observe that it would be contrary to logic in some respects to suspend any part of that sentence, since you are already in breach of an earlier suspended sentence.  In relation to that sentence, I activate it, and direct that it is to be served concurrently with the sentence I have just imposed.  By making it concurrent, I am addressing totality and considerations relevant to your youth. That will afford you the earliest opportunity to establish yourself as a responsible member of the community.  To that end I direct that you be eligible for parole after you have served half of the sentence that have just imposed. (I note that I have previously made the property-related orders sought by the State).

So you must serve half the sentence of 3 years imprisonment before you are eligible to apply for parole.

In relation to you, Mr Johnston, you appear on fewer matters – seven counts of stealing, four counts of receiving stolen property, and a single count of aggravated burglary.

I will summarise the facts.  In early May 2017, a Nissan Patrol and a Toyota Hilux were stolen from properties in Kingston and Montrose.  The thefts occurred between 8pm and 9am.  Each of the vehicles had been purchased just a few months earlier from your brother and from the partner of another person who was your brother’s colleague.

Telstra phone records show that you utilised the phone tower north of Margate, and later at Claremont and Montrose.

The Nissan Patrol was located near Pelham, stripped, and parts and some other items were found at your residence in Claremont.

The remnants of the Toyota Hilux, were found at Tanina Bluff forest reserve near Elderslie and Gretna.

Your co-accused, Mr McKenna stole each of those vehicles.  He also stole a Nissan Patrol belonging to another person, the parts and contents of which were located at a residence occupied by you.  You also participated in an aggravated burglary at Howden on 15 May 2017, entering that property as a trespasser intending to steal from it. There you stole a trail bike and helmet, and related paraphernalia and a Nissan Patrol, as well as its contents which included a brush-cutter and sander.  These thefts occurred whilst the owners were working elsewhere or interstate. The Nissan Patrol was valued at in excess of $50,000. Parts from the Nissan Patrol were located at your residence, and that of your parents.  (Your parents had no knowledge and/or involvement in the offending).

On 16 May 2017, a Toyota Hilux was stolen along with a generator and some other equipment from Howrah.  You were apprehended shortly after midnight driving a Hilux vehicle. You had the generator.

Telstra tower usage shows you travelling to Launceston on the evening of 20 May, and returning to the south of the State in the early hours of 21 May.  In Launceston, you entered the yard of City Motors in Invermay and stole a Nissan Navara and a tailgate for a Holden vehicle.  Their combined value was in excess of $17,000.

Parts of vehicles were located in your residence including a Nissan Navara bonnet, a tailgate, a passenger side door, a bull-bar and engine.

The theft of a Telstra Corporation Nissan Patrol in February 2018 led police to property at Levendale where they set up surveillance.  There they observed the Telstra vehicle and two other vehicles, an Isuzu tip-truck and a Mitsubishi Lancer.  On 23 February 2018 you arrived there in a truck.  You commenced moving branches that had camouflaged those vehicles and you started the Mitsubishi Lancer.  You began dismantling the Telstra vehicle.

The Isuzu truck had been stolen from an auction yard, entry having been gained through a fence.  That vehicle had been purchased by someone at auction for around $27,000, and was awaiting collection.  It was found in a dismantled state.

You appear before me with a number of relevant prior convictions including similar offences committed in 2012, 2013, and 2014, in respect of which you were sentenced to a period of 12 months’ imprisonment, wholly suspended on conditions.  Those convictions, four for stealing and four for receiving stolen property, were jury verdicts.  At the time you were sentenced for those matters, the court observed that you had begun to take a more responsible attitude; that you had distanced yourself from offenders with whom you used to associate; that you were starting your own business working on cars; that your relationship was sound; and that your partner was expecting a child.  It was observed by the sentencing judge that you had experienced for yourself what it was like to be the victim of motor vehicle theft.  The court observed indications of rehabilitation which prompted it not to require you to serve the sentence of imprisonment it had imposed.

I have been provided with a detailed and helpful plea in mitigation, as well as a forensic psychological assessment.  The opinion of Mr Minehan is that you present with no history of acquired brain injury or other relevant medical diagnosis, but he records that you have previously been diagnosed with Aspergers Disorder.  It is his opinion that this diagnosis remains current and has relevance here.  You do not have any intellectual impairment and the opinion records a significant aptitude in spatial and perceptual skills. Relevantly, for my purposes in sentencing you, it is Mr Minehan’s opinion that the Verdins principles are engaged.  His opinion is that your level of cognitive impairment has the effect of reducing your ability to exercise appropriate judgment and to make rational choices.  This may also contribute, in his opinion, to your being disinhibited and having a reduced ability to control impulses and regulate emotions.

It is opined that the Court should take into account a reduced moral culpability based upon an impaired ability to exercise judgment or make rational choices; that it should accept that you have an impaired ability to appreciate the wrongfulness of your conduct, a matter relevant to specific deterrence, and accept that your difficulties in respect of social interaction and close proximity to other people will make the experience of the prison environment more difficult.

Whilst the State does not challenge that opinion, it emphasises the objectively serious nature of the offending, the significant detriment which accrued to the victims of your crimes including the impact of these crimes on their capacity to travel and perhaps even to earn an income.  Matters to which I adverted in respect of your co-accused.

I accept Mr Minehan’s opinion, and, in particular, his conclusion that mental health conditions, impaired mental functioning at the time of the commission of these crimes, reduced your moral culpability and therefore have a bearing on the sentence which should be imposed. I take account of the fact that imprisonment will be more difficult for you for the reasons he expresses.  I accept you have skills which could be used productively and provide a basis for your future rehabilitation should you choose to engage those skills appropriately.

I sentence you on that basis, recognising, as I did with your co-accused, that you are still a youthful offender for whom rehabilitation is a primary objective. I will reflect that consideration in your case too by imposing the minimum non-parole period.

I also recognise the utilitarian benefit of your plea of guilty which, though not an early plea saved a long trial, with a modest reduction of 5% in your sentence.

As in the case of your co-accused, I recognise the need for parity in sentencing and have regard to the principle of totality in fixing penalty. I will impose a global penalty as an appropriate means of applying the totality principle. I note too that there is a suspended sentence the State has asked me to activate.

I must have regard to your prior convictions but I will consider those in the context of the opinion in Mr Minehan’s report.

I must also recognise the victims of your offending and the need to deter others. Those considerations are not supplanted altogether, by the mental health considerations identified by Mr Minehan. Yours too was a persistent course of conduct which caused significant property losses. You too have not identified the other offenders who participated in your offending.

In your case, I have determined that a term of imprisonment is appropriate.  You are convicted of all matters. The sentence of the court is two years and four months’ imprisonment.

The law requires me to suspend that sentence, or a part of it, unless I am satisfied that it is not appropriate to do so. In my view, and despite the report from Mr Minehan, it is not appropriate to suspend that sentence or any part of it. I have incorporated the matters referred to in his report and in the matters in mitigation in arriving at a head sentence and fixing the non-parole period.  In your case, too, the sentence begins on the date you were remanded in custody upon your plea of guilty. I activate the suspended sentence and I direct that it be served concurrently with the sentence that I have just imposed, again to reflect your youth, your prospects and the contents of the report from Mr Minehan.

(In your case, too, I have previously made appropriate orders in relation to property.)

So you must serve half the sentence of imprisonment for 2 years and 4 months before you are eligible to apply for parole.