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Johan v R

Johan v R

Case [2015] NSWCCA 58 10 April 2015

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Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Johan v R
Medium Neutral Citation:	[2015] NSWCCA 58
Hearing Date(s):	3 March 2015
Date of Orders:	10 April 2015
Decision Date:	10 April 2015
Before:	Leeming JA at [1]; Simpson J at [3]; Schmidt J at [29]
Decision:	Leave to appeal be granted but the appeal be dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – whether there was failure to give appropriate weight to age and background when assessing moral culpability – whether sentence imposed was manifestly excessive – leave to appeal granted, but the appeal be dismissed
Legislation Cited:	Crimes Act 1900 (NSW), s 97(1), s 97(2) Children (Criminal Proceedings) Act 1987 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Firearms Act 1996 (NSW) Victims Support and Rehabilitation Act 1996 (NSW) (Repealed)
Cases Cited:	Alvares v The Queen [2011] NSWCCA 33; (2011) 209 A Crim R 297 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Dougan v The Queen [2006] NSWCCA 34; (2006) 160 A Crim R 135 KT v The Queen [2008] NSWCCCA 51; (2008) 182 A Crim R 571 IE v The Queen [2008] NSWCCA 70; (2008) 183 A Crim R 150 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 MJ v R [2010] NSWCCA 52 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 R v Bus (Court of Criminal Appeal (NSW), 3 November 1995, unrep) R v Engert (1995) 84 A Crim R 67 R v Fernando (1992) 76 A Crim R 58 R v Franks [2005] NSWCCA 196 R v Hamied [2007] NSWCCA 151 R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Hoang [2003] NSWCCA 380 R v Holder [1983] 3 NSWLR 245 R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 R v Krstic [2005] NSWCCA 391 R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Mitchell [2002] NSWCCA 270 R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim 369 R v Smith [2007] NSWCCA 100 R v Voss [2003] NSWCCA 182 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 R v Taufahema [2010] NSWCCA 241 Veen v The Queen (No 2) [1988] HCA 14;

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 Johan v R

Details

AGLC: Johan v R [2015] NSWCCA 58
Case: [2015] NSWCCA 58
Decision Date: 10 April 2015

CaseChat Overview and Summary

In Johan v R, the appellant, Johan, was appealing against his conviction and sentence for a criminal offence. The appeal centred on the argument that the sentencing court had failed to appropriately consider Johan's age and background when assessing his moral culpability, and that the sentence imposed was manifestly excessive. The case was heard by the High Court of Australia, which granted leave to appeal but ultimately dismissed the appeal.

The primary legal issue the court had to address was whether the sentencing judge had given inadequate weight to Johan's age and background, which could have mitigated his moral culpability. Additionally, the court needed to determine if the sentence was manifestly excessive, considering all relevant factors. The court's consideration involved examining the sentencing principles, the objective of punishment, and the proportionality of the sentence in light of Johan's personal circumstances.

The court found that the sentencing judge had taken into account Johan's age and background, albeit not explicitly detailed in the sentencing remarks. The judge had assessed Johan's personal circumstances and considered the objective of punishment, which included deterrence and rehabilitation. The court held that the sentence was not manifestly excessive, as it was proportionate to the seriousness of the offence and aligned with the sentencing principles. The appeal was dismissed, and the original sentence was upheld.

Orders