DPP (Cth) v Johnson - [2012] VSCA 38

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0225

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Appellant
	v
ANNE JOHNSON	Respondent

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JUDGES:	MAXWELL P, HOLLINGWORTH and CAVANOUGH AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 February 2012
DATE OF JUDGMENT:	23 February 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 38
JUDGMENT APPEALED FROM:	R v Johnson (Unreported, County Court of Victoria, Judge Pullen, 18 December 2009)

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CRIMINAL LAW – Director’s appeal – Sentence reduced because of undertaking to co-operate and give evidence – Respondent largely failed to honour undertaking – No reasonable excuse – Appeal allowed – Sentence below quashed – Respondent resentenced to a term of imprisonment of 4 years and 9 months, with a non-parole period of 2 years and 9 months – Crimes Act 1914 (Cth) s 21E

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Gurvich	Director of Public Prosecutions (Cth)
For the Respondent	Mr T Kassimatis with Mr R Stransky	Pica Criminal Lawyers

MAXWELL P:

I agree with Hollingworth AJA.

HOLLINGWORTH AJA:

Introduction

On 21 October 2009, the respondent pleaded guilty to one count of importing a marketable quantity of a border controlled drug (heroin) on 17 February 2009.

At the plea hearing on 14 December 2009, the respondent gave an undertaking to give full and frank evidence for the Crown, in accordance with her statement dated 11 December 2009, in any proceedings the Crown may nominate, including proceedings in respect of Thi Loan Tran (a woman also known as Loan of Kim Son or Hong Anh Vo). The undertaking was given under s 21E of the Crimes Act 1914 (Cth) (the ‘Act’).

On 18 December 2009, the respondent was sentenced to a total effective sentence of 4 years’ imprisonment, with a non-parole period of 2 years. The learned sentencing judge noted that, but for the undertaking, her Honour would have imposed a sentence of 5 years’ imprisonment, with a non-parole period of 3 years.

The Commonwealth Director of Public Prosecutions appeals against sentence, on the ground that the sentence imposed is inadequate as a result of the respondent, without reasonable excuse, having failed to co-operate in accordance with the undertaking.

The original written statement

On Friday, 11 December 2009, the respondent made a written statement to police, which explained the background to, and circumstances of, her involvement in the importation of heroin from Vietnam into Australia. Relevantly for present

purposes, the respondent said:

(a) she had obtained legal advice before making the statement;

(b) a woman called Thu was involved in making arrangements for the respondent to import drugs, including arranging her airfare, giving her cash spending money and part payment for the importation;

(c) about one week before travelling to Vietnam, she had overheard a telephone conversation between Thu and another person, about the quantity and purity of drugs that the respondent was to carry. Thu told her that the other person on the phone was Loan of Kim Son;

(d) whilst in Vietnam, the respondent had a telephone conversation with…

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 DPP (Cth) v Johnson

Details

AGLC: DPP (Cth) v Johnson [2012] VSCA 38
Case: [2012] VSCA 38
Decision Date: 23 February 2012

CaseChat Overview and Summary

The case involved the Director of Public Prosecutions for the Commonwealth, who appealed against the sentence of Johnson, who was convicted of several criminal offences. The original sentence was reduced due to Johnson's undertaking to co-operate and give evidence. However, Johnson largely failed to honour his undertaking and provided little useful evidence. The appeal to the court was about whether the original sentence was appropriate, considering Johnson's failure to co-operate as promised. The legal issues were whether the sentence was manifestly inadequate and whether there were reasonable grounds for Johnson's non-compliance with his undertaking.

The court reviewed the circumstances surrounding Johnson's sentencing and the extent to which he honoured his undertaking to co-operate. It was noted that Johnson had provided little useful evidence and that there were no reasonable grounds for his failure to honour his promise. The court held that the original sentence was manifestly inadequate because it failed to take into account Johnson's failure to fulfil his part of the bargain. The court concluded that the appeal should be allowed and that the original sentence should be set aside. Johnson was then resentenced to a term of imprisonment of 4 years and 9 months, with a non-parole period of 2 years and 9 months.

The court emphasised that a sentence should reflect the gravity of the offence and the need for general deterrence. The court also stressed the importance of ensuring that sentences reflect the offender's culpability and the need to protect the community. The court concluded that Johnson's sentence should be increased to reflect his culpability and to provide general deterrence. The court also noted that the sentence should be sufficient to reflect the community's need for protection. The final orders of the court were that the original sentence be quashed and that Johnson be resentenced to a term of imprisonment of 4 years and 9 months, with a non-parole period of 2 years and 9 months.

Orders