DPP v Johnston - [2004] VSCA 150

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 146 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
CRAIG JOHN JOHNSTON

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JUDGES:	ORMISTON, BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2004
DATE OF JUDGMENT:	27 August 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 150

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CRIMINAL LAW – Sentencing – Appeal by Director of Public Prosecutions – Principles applicable to appeals by Director – Industrial dispute – Deliberate, carefully planned affray at two industrial premises – Common assault – Intentionally and unlawfully causing damage to property – Whether total effective sentence of 12 months’ imprisonment wholly suspended and fine of $10,000 is manifestly inadequate – Lack of remorse – Deliberate refusal to submit to sentencing judge that offender remorseful – No error by sentencing judge in finding of lack of remorse – Elements of offence of affray – Affray on private premises – Victims of affray likely to be terrified for own safety – Risk of reoffending – Offending not in course of genuine industrial dispute – Harm caused at premises premeditated.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr L. Lasry, Q.C. Mr G.P. Mullaly	Robert Stary & Assoc.

ORMISTON, J.A.:
BATT, J.A.:
CHERNOV, J.A.:

The Director of Public Prosecutions (“the DPP”) has appealed against sentences imposed in May 2004 on Craig John Johnston after he pleaded guilty to a presentment containing four counts, two of affray, one of assault and one of intentionally and unlawfully damaging property. On count 1, the first count of affray (for which a maximum term of five years’ imprisonment is prescribed) the respondent was sentenced to six months’ imprisonment. On count 2, that of common assault (for which the same maximum term is prescribed), he was sentenced to three months’ imprisonment. On count 3, the second count of affray, he was sentenced to eight months’ imprisonment. Finally on counts 4, that relating to the damaging of property (for which a maximum term of ten years’ imprisonment is prescribed), he was sentenced to four months’ imprisonment. Orders were made that three months of the sentence imposed on count 1 and one month of the sentence imposed on count 4 should be served cumulatively on the sentence imposed on count 3 and on each other. In consequence there was a total effective sentence of twelve months’ imprisonment, and the judge ordered that the sentence be wholly suspended for a period of three years. In addition his Honour ordered that the respondent pay a fine of $10,000, in respect of all offences, payment of which was stayed for six months. Finally, a compensation order was made in the sum of $44,560.18 in favour of Skilled Engineering Pty. Ltd., the company whose property was damaged in the course of the events that were covered by count 4.

From these sentences and orders the DPP has appealed on the sole ground that the sentence imposed is “manifestly inadequate” but refers in…

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 v Johnston

Details

AGLC: DPP v Johnston [2004] VSCA 150
Case: [2004] VSCA 150
Decision Date: 27 August 2004

CaseChat Overview and Summary

The case before the court was an appeal by the Director of Public Prosecutions against the sentence handed down to a defendant in a case involving serious criminal activity related to an industrial dispute. The defendant had been found guilty of engaging in a deliberately planned affray at two industrial premises, common assault, and intentionally causing damage to property. The court was tasked with determining whether the sentence of 12 months' imprisonment, wholly suspended, and a fine of $10,000 was manifestly inadequate. The appeal raised questions about the principles applicable to sentencing appeals by the Director of Public Prosecutions and the appropriate weight to be given to factors such as the lack of remorse demonstrated by the offender.

The court considered the elements of the offence of affray, particularly in the context of an affray occurring on private premises where the victims were likely to be terrified for their safety. The court examined the nature of the offending, which was premeditated and not part of a genuine industrial dispute, and the risk of reoffending. The sentencing judge had found that the offender showed no remorse and had deliberately refused to submit that they were remorseful. The court found no error in this assessment by the sentencing judge. The court also considered the total effective sentence imposed, which was a wholly suspended sentence of imprisonment and a substantial fine.

After considering the principles applicable to sentencing appeals by the Director of Public Prosecutions, the court found that the sentence imposed was not manifestly inadequate. The court took into account the premeditated nature of the offending, the lack of remorse demonstrated by the offender, and the risk of reoffending. The court concluded that the sentence imposed was appropriate in the circumstances. The appeal was dismissed.

The final orders of the court were that the appeal by the Director of Public Prosecutions was dismissed, and the sentence imposed by the sentencing judge was upheld.

Orders