Bradley Darryl Johnson v The Queen - [2013] VSCA 277

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0298

BRADLEY DARRYL JOHNSON	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 September 2013
DATE OF JUDGMENT	23 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 277
APPEALED FROM	DPP v Johnson (Unreported, County Court of Victoria, Judge Wood, date of sentence 30 May 2013)

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CRIMINAL LAW – Appeal against sentence – 27 charges relating to aggravated burglary, burglary, theft and handling stolen goods – Appeal against sentence of four years and five months with a non parole period of three years and three months – Fresh evidence – Appellant suffered and continues to suffer from a paranoid schizophrenic illness – Appeal allowed – Appellant resentenced to total effective sentence of four years with a non parole period of three years.

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Appearances:	Counsel	Solicitors
The Appellant	Mr P J Smallwood	VLA Melbourne
The Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

The appellant, Bradley Darryl Johnson, pleaded guilty to four charges of aggravated burglary, one charge of burglary, eight charges of theft, one charge of attempted theft, one charge of handling stolen goods and three summary charges for driving offences.

On 30 May 2012, the appellant was sentenced as follows:

charge on indictment offence maximum sentence cumulation

1 Burglary [Crimes Act 1958 (Vic) s76(1)] 10 years [Crimes Act 1958 (Vic) s76(3)] 12 months 2 months

2 Theft [Crimes Act 1958 (Vic) s72] 10 years [Crimes Act 1958 (Vic) s74] 12 months 1 month

3 Aggravated burglary [Crimes Act 1958 (Vic) s77(1)] 25 years [Crimes Act 1958 (Vic) s77(2)] 2 years Base

4 Theft [Crimes Act 1958 (Vic) s72] 10 years [Crimes Act 1958 (Vic) s74] 12 months 1 month

5 Attempted theft [Crimes Act 1958 (Vic) s321M] 10 years [Crimes Act 1958 (Vic) s74] 6 months 1 month

6 Aggravated burglary [Crimes Act 1958 (Vic) s77(1)] 25 years [Crimes Act 1958 (Vic) s77(2)] 2 years 4 months

7 Aggravated burglary [Crimes Act 1958 (Vic) s77(1)] 25 years [Crimes Act 1958 (Vic) s77(2)] 2 years 4 months

8 Theft [Crimes Act 1958 (Vic) s72] 10 years [Crimes Act 1958 (Vic) s74] 12 months 1 month

9 Theft [Crimes Act 1958 (Vic) s72] 10 years [Crimes Act 1958 (Vic) s74] 12 months 1 month

10 Aggravated burglary [Crimes Act 1958 (Vic) s77(1)] 25 years [Crimes Act 1958 (Vic) s77(2)] 2 years 4 months

11 Theft [Crimes Act 1958 (Vic) s74] 10 years [Crimes Act 1958 (Vic) s74] 12 months 1 month

12 Theft [Crimes Act 1958 (Vic) s72] 10 years [Crimes Act 1958 (Vic) s74] 12 months 1 month

13 Handle stolen goods [Crimes Act 1958 (Vic) s88(1)] 15 years [Crimes Act 1958 (Vic) s88(2)] 18 months 3 months

14 Theft [Crimes Act 1958 (Vic) s72] 10 years…

charge on indictment	offence	maximum	sentence	cumulation
1	Burglary [Crimes Act 1958 (Vic) s76(1)]	10 years [Crimes Act 1958 (Vic) s76(3)]	12 months	2 months
2	Theft [Crimes Act 1958 (Vic) s72]	10 years [Crimes Act 1958 (Vic) s74]	12 months	1 month
3	Aggravated burglary [Crimes Act 1958 (Vic) s77(1)]	25 years [Crimes Act 1958 (Vic) s77(2)]	2 years	Base
4	Theft [Crimes Act 1958 (Vic) s72]	10 years [Crimes Act 1958 (Vic) s74]	12 months	1 month
5	Attempted theft [Crimes Act 1958 (Vic) s321M]	10 years [Crimes Act 1958 (Vic) s74]	6 months	1 month
6	Aggravated burglary [Crimes Act 1958 (Vic) s77(1)]	25 years [Crimes Act 1958 (Vic) s77(2)]	2 years	4 months
7	Aggravated burglary [Crimes Act 1958 (Vic) s77(1)]	25 years [Crimes Act 1958 (Vic) s77(2)]	2 years	4 months
8	Theft [Crimes Act 1958 (Vic) s72]	10 years [Crimes Act 1958 (Vic) s74]	12 months	1 month
9	Theft [Crimes Act 1958 (Vic) s72]	10 years [Crimes Act 1958 (Vic) s74]	12 months	1 month
10	Aggravated burglary [Crimes Act 1958 (Vic) s77(1)]	25 years [Crimes Act 1958 (Vic) s77(2)]	2 years	4 months
11	Theft [Crimes Act 1958 (Vic) s74]	10 years [Crimes Act 1958 (Vic) s74]	12 months	1 month
12	Theft [Crimes Act 1958 (Vic) s72]	10 years [Crimes Act 1958 (Vic) s74]	12 months	1 month
13	Handle stolen goods [Crimes Act 1958 (Vic) s88(1)]	15 years [Crimes Act 1958 (Vic) s88(2)]	18 months	3 months
14	Theft [Crimes Act 1958 (Vic) s72]	10 years…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bradley Darryl Johnson v The Queen

Details

AGLC: Johnson v The Queen [2013] VSCA 277
Case: [2013] VSCA 277
Decision Date: 23 September 2013

CaseChat Overview and Summary

Bradley Darryl Johnson appealed his sentence against The Queen on the grounds of fresh evidence, specifically his ongoing paranoid schizophrenic illness. Johnson was found guilty on 27 charges, including aggravated burglary, burglary, theft, and handling stolen goods, and was sentenced to four years and five months imprisonment, with a non-parole period of three years and three months. The appeal was heard in the court of appeal.

The primary legal issue was whether the appellant's paranoid schizophrenic illness, which was not considered at the original sentencing, warranted a reconsideration of the sentence. The court had to determine if the fresh evidence was significant enough to warrant a new sentence and, if so, what the appropriate sentence should be. The appeal also questioned whether the original sentence was manifestly excessive or inadequate in light of the appellant's illness.

The court acknowledged the appellant's paranoid schizophrenic illness and its impact on his criminal conduct and culpability. The illness was deemed a significant mitigating factor that should have been considered at the original sentencing. The court found that the fresh evidence was substantial and warranted a reconsideration of the sentence. The appeal was allowed, and the appellant was resentenced to a total effective sentence of four years with a non-parole period of three years. The court concluded that the original sentence was excessive given the appellant's illness and its impact on his criminal behaviour.

Orders