Johan v The Queen - [2019] NSWCCA 126

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Johan v R [2019] NSWCCA 126
Hearing dates: 12 June 2019
Date of orders: 21 June 2019
Decision date: 21 June 2019
Before: Payne JA at [1], Davies J at [28], Button J at [29]
Decision:
(1) Leave granted to appeal out of time.
(2) Leave to appeal granted.
(3) Appeal allowed.
(4) Sentence imposed by Blackmore SC DCJ on 23 June 2017 upon Mr Johan set aside.
(5) Mr Johan is resentenced to an aggregate period of imprisonment of 5 years and 8 months commencing on 17 September 2015 and expiring on 16 May 2021. He is sentenced to an aggregate non-parole period of 4 years, 3 months’ imprisonment commencing on 17 September 2015 and ending on 17 December 2019. His release to parole on 17 December 2019 is recommended.

Catchwords: CRIMINAL LAW – appeal – appeal against sentence –aggravated break, enter and steal under s 112(2) of Crimes Act 1900 (NSW) – offences committed as part of joint criminal enterprise – whether effect of delay taken into account when fixing non-parole period – assessment of subjective case – leave to appeal out of time granted – leave to appeal granted – appeal upheld – applicant resentenced
Legislation Cited: Crimes Act 1900 (NSW), ss 112(2), 113(2)
Criminal Appeal Act 1912 (NSW), s 6(3)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(4)
Cases Cited: DL v The Queen [2018] HCA 32; 92 ALJR 764
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
JM v R [2014] NSWCCA 297
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190
Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Category: Principal judgment
Parties: Franco Johan (Applicant)
Regina (Respondent)
Representation:
Counsel:
I McLachlan (Applicant)
K Ratcliffe (Respondent)
Solicitors:
Younes + Espiner Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/00273442
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

23 June 2017

Before:

Blackmore SC DCJ

File Number(s):

2015/273442

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was sentenced together with a Ms Quintero, a Ms Carvajal and a Ms Salazar in respect of four charges of aggravated break, enter and commit serious indictable offence (larceny) under s 112(2) of the Crimes Act 1900 (NSW). Three further such charges and a charge of aggravated break and enter with intent under s 113(2), were taken into account on a Form 1. The applicant was sentenced to an aggregate sentence of 6 years and 9 months’ imprisonment with a non-parole period of 5 years.

On 31 August 2018, this Court upheld the appeal against the sentences imposed upon the applicant’s co-offenders: Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190. The applicant took…

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 The Queen

Details

AGLC: Johan v The Queen [2019] NSWCCA 126
Case: [2019] NSWCCA 126
Decision Date: 21 June 2019

CaseChat Overview and Summary

The appeal arose from a conviction under the Crimes Act 1900 (NSW) for aggravated break, enter and steal. The applicant, Johan, contested the severity of the sentence imposed by the Supreme Court of New South Wales. The Crown appealed against the leniency of the sentence, and Johan appealed on the grounds that the sentence did not adequately reflect the delay in reporting the crime. The High Court of Australia heard the case.

The legal issues before the court were whether the effect of the delay in reporting the crime should be considered when determining the non-parole period and whether the sentence imposed was excessive or lenient. The court had to consider the nature of the offence, the circumstances of the crime, and the principles of sentencing in the context of a joint criminal enterprise.

The High Court found that the trial judge had not appropriately considered the delay in reporting the crime when setting the non-parole period. The court emphasised the importance of a fair and proportionate sentence, taking into account all relevant factors. It held that the delay warranted a more severe sentence and allowed the appeal against the leniency of the sentence. The court also granted leave to appeal out of time due to exceptional circumstances. The appeal was ultimately upheld, and Johan was resentenced.

The court ordered that Johan be resentenced, taking into account the delay in reporting the crime. The new sentence was to reflect a more appropriate non-parole period, commensurate with the gravity of the offence and the delay in reporting.

Orders