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Johns (a Pseudonym) v The Queen

Johns (a Pseudonym) v The Queen

Case [2016] VSCA 97 10 May 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0141

SAM JOHNS (A PSEUDONYM)[1]	Applicant
	v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGES	WEINBERG AP, ASHLEY and FERGUSON JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 April 2016
DATE OF JUDGMENT	10 May 2016
MEDIUM NEUTRAL CITATION	[2016] VSCA 97
JUDGMENT APPEALED FROM	DPP v Johns (Unreported, County Court of Victoria, Judge Montgomery, 19 June 2015)

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CRIMINAL LAW – Sentence – Six charges of rape – Intentionally Cause Injury – Offending over sustained period - Victim was wife – Impact of delay –Anomalies in individual sentences imposed – Anomalies affecting total effective sentence – Sentence manifestly excessive - Leave to appeal granted and appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC with Mr G F Connelly	Ann Valos Criminal Law
For the Crown	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG AP:

I agree, for the reasons given by Ferguson JA, that leave to appeal should be granted, the appeal allowed, and the appellant resentenced as her Honour has proposed.

ASHLEY JA:

I agree in the reasons of Ferguson JA and with the orders which her Honour proposes.

FERGUSON JA:

Overview

On 16 June 2015 the applicant was convicted of six charges of rape and one charge of intentionally causing injury to his wife. The offences were committed between May 2001 and January 2011. The last three offences of rape were committed at a time when the applicant and the victim were separated.

The applicant was sentenced on 19 June 2015 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Rape [Crimes Act 1958, s38(1)] 25 years imprisonment 8 years imprisonment 1 year

2 Intentionally cause injury [Crimes Act 1958, s18] 10 years imprisonment 2 years imprisonment Nil

3 Rape [Crimes Act 1958, s38(1)] 25 years imprisonment 6 years imprisonment 6 months

4 Rape [Crimes Act 1958, s38(1)] 25 years imprisonment 6 years imprisonment 6 months

5 Rape [Crimes Act 1958, s38(1)] 25 years imprisonment 6 years imprisonment 6 months

6 Rape [Crimes Act 1958, s38(1)] 25 years imprisonment 6 years imprisonment 6 months

7 Rape [Crimes Act 1958, s38(1)] 25 years imprisonment 10 years imprisonment Base

Total Effective Sentence: 13 years imprisonment

Non-Parole Period: 10 years

Pre-sentence Detention Declared: 3 days

Other orders:
Forfeiture order (charge 7)

Sentenced as a serious sexual offender (charges 4, 5, 6 and 7)

Forensic procedure

The applicant seeks leave to appeal against sentence on the ground that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive. The applicant draws attention to what he contends are serious anomalies in the sentences imposed on charges 1, 2 and 7, to the impact of the sentences on charges 1 and 7…

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 Johns (a Pseudonym) v The Queen

Details

AGLC: Johns (a Pseudonym) v The Queen [2016] VSCA 97
Case: [2016] VSCA 97
Decision Date: 10 May 2016

CaseChat Overview and Summary

The case of Johns (a Pseudonym) v The Queen involved the appellant, who was convicted on six counts of rape and one count of intentionally causing injury. The appellant's wife, who was the victim of these offences, had tragically passed away before the sentencing hearing. The High Court of Australia was tasked with determining whether the sentence imposed by the lower court was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed on the appellant was manifestly excessive in light of the totality of the circumstances, including the delay in bringing the case to trial and the anomalies in the individual sentences. The appellant argued that the sentences for each count of rape were excessive and did not adequately reflect the cumulative effect of the offences, which had been committed over an extended period against his wife. Furthermore, the appellant contended that the total effective sentence imposed was manifestly excessive.

The court examined the individual sentences for each offence and found that they were indeed excessive. The cumulative effect of the offences, which had been committed against the appellant's wife over a sustained period, warranted a more severe sentence. The court also noted the significant delay in bringing the case to trial, which had an impact on the severity of the sentence. After considering all the circumstances, the court concluded that the total effective sentence imposed was manifestly excessive. Consequently, the High Court granted leave to appeal, allowed the appeal, and re-sentenced the appellant.

Orders