Johnson, Mark Anthony Wilford v The Queen - [2017] NSWCCA 43

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Johnson, Mark Anthony Wilford v R [2017] NSWCCA 43
Hearing dates: 22 February 2017
Decision date: 22 March 2017
Before: Hoeben CJ at CL at [1];
Latham J at [2];
Price J at [28]
Decision:
1. Leave to rely on Ground One is refused.
2. Leave to rely on Ground Two is granted, appeal dismissed.
3. Leave to rely on Ground Three is granted, appeal dismissed.
4. Appeal against sentence is dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – supply prohibited drug – possess unauthorised pistol - where the sentencing judge failed to have proper regard to the lack of a significant record – where the sentencing judge erred in announcing an indicative sentence prior to applying a discount of a plea of guilty – where the sentence was manifestly excessive – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Weininger v R [2003] HCA 14; 212 CLR 629
Markarian v R [2005] HCA 25; 228 CLR 357
SHR v R [2014] NSWCCA 94; 241 A Crim R 544
Hili v The Queen, Jones v The Queen [2010] HCA 45; 242 CLR 520
Category: Principal judgment
Parties: Appellant: Mark Anthony Wilford Johnson
Respondent: Regina
Representation:
Counsel:
K. Averre (Appellant)
H. Roberts (Respondent)
Solicitors:
B. Duchen (Appellant)
C. Hyland (Director of Public Prosecutions NSW)

File Number(s): 2013/281429
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

30 October 2015

Before:

Bennett DCJ

File Number(s):

2013/281429

Judgment

HOEBEN CJ at CL: I agree with Latham J and the orders which she proposes.
LATHAM J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 30 October 2015.
The applicant pleaded guilty to two counts of supply not less than the large commercial quantity of a prohibited drug (dimethoxyphenethylamine) each carrying a maximum penalty of life imprisonment, with a standard non-parole period of 15 years. On the first count, two offences of supply prohibited drug, one of cultivate a prohibited plant and one of deal with proceeds of crime were taken into account on a Form One. The applicant also pleaded guilty to a third count of possessing unauthorised pistol carrying a maximum penalty of 14 years imprisonment with a standard non-parole period of three years. Two offences of possess prohibited weapon, one of possessing ammunition without holding a licence and one of not keep firearm safely were taken into account on a Form One in sentencing for this offence.
On the first count of supply not less than the large commercial quantity of a prohibited drug, his Honour indicated a sentence of imprisonment of 10 years with a non-parole period of six years, taking into account the matters on the Form One. On the second count of supplying not less than a large commercial quantity of a prohibited drug, his Honour indicated a sentence of…

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.

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Details

Case: [2017] NSWCCA 43
Decision Date: 22 March 2017

CaseChat Overview and Summary

In the case of Johnson, Mark Anthony Wilford v The Queen, the appellant, Mark Anthony Wilford Johnson, challenged the sentence imposed by the sentencing judge for supplying a prohibited drug and possessing an unauthorised pistol. The appeal was heard in the High Court of Australia. Johnson's appeal was grounded on the assertion that the sentencing judge had not given due consideration to his minimal criminal history, had prematurely declared an indicative sentence before applying a discount for his guilty plea, and that the overall sentence was excessively harsh.

The primary legal issues before the court involved whether the sentencing judge had correctly assessed the mitigating factors, including Johnson's lack of a significant criminal record, and if the sentence was commensurate with the offences committed. Additionally, the court examined whether the announcement of an indicative sentence before the application of the guilty plea discount constituted an error that warranted appellate intervention. The court also scrutinised the overall severity of the sentence to determine if it was manifestly excessive.

The court found that the sentencing judge did not adequately address the absence of a significant criminal record, which was a relevant mitigating factor. It was also noted that the judge's premature announcement of an indicative sentence before applying the discount for a guilty plea was an error. However, the court concluded that these errors did not significantly impact the final sentence, which was deemed appropriate given the gravity of the offences. The court determined that the sentence was not manifestly excessive and dismissed the appeal, upholding the original sentence imposed by the lower court.

Orders