CATCHWORDS:
Application for leave to appeal against sentences - multiple offences of robbery armed with a dangerous weapon - whether sentences manifestly excessive

LEGISLATION CITED:
Crimes Act 1900 - ss 95, 97(1), 97(2)
Firearms Act 1996 - s 7(1)
Crimes (Sentencing Procedure) Act 1999 - ss 23, 37, Pt 3 Div 3

CATEGORY:
Principal judgment

CASES CITED:
R v Goundar [2001] NSWCCA 198; 127 A Crim R 331
R v JW [2010] NSWCCA 49
R v Breedon (NSWCCA, 3 December 1992, unreported)
R v Hoschke [2001] NSWCCA 317
R v Wright [2009] NSWCCA 3
GAS v The Queen [2004] HCA 22; 217 CLR 198
The Queen v Pearce [1998] HCA 57; 194 CLR 610
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518
R v McNaughton (2006) 66 NSWLR 566
Veen v The Queen(No 2) (1988) 164 CLR 465
R v Wickham [2004] NSWCCA 193
Hillier v Director of Public Prosecutions [2009] NSWCCA 312
Weininger v The Queen (2003) 212 CLR 629
R v Baleiovalau [2009] NSWCCA 153
R v Ta [2009] NSWCCA 196
R v George (2004) 149 A Crim R 38
R v Henry (1999) 36 NSWLR 346

TEXTS CITED:

DECISION:
In the application of Paul Robert Johnson - grant leave to appeal but dismiss the appeal.
In the application of Michael Ronald Moody - grant leave to appeal but dismiss the appeal.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/2869
2009/2870
JAMES J
SIMPSON J
BARR AJ
FRIDAY 25 JUNE 2010

Paul Robert JOHNSON v R
Michael Ronald MOODY v R

Judgment

JAMES J: I have had the advantage of reading in draft the judgment of Barr AJ and the judgment of Simpson J.
In her judgment Simpson J agrees with the orders proposed by Barr AJ and, subject to one reservation, with his Honour’s reasons. Her Honour’s reservation concerns what weight, if any, should have been given to the different roles played by the two offenders in committing the common offences, in determining Moody’s ground of appeal based on the alleged disparity between the sentences imposed on him and the sentences imposed on Johnson.
As regards the sentencing of offenders who were parties to the same joint criminal enterprise, Simpson J has in her judgment referred to statements of principle in previous decisions of this Court and in particular R v Goundar [2001] NSWCCA 198; 127 A Crim R 331 and

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 Johnson v R

Details

AGLC: Johnson v R [2010] NSWCCA 124
Case: [2010] NSWCCA 124
Decision Date: 25 June 2010

CaseChat Overview and Summary

Johnson has applied for leave to appeal against his sentences for multiple offences of robbery armed with a dangerous weapon, arguing that the sentences are manifestly excessive. The application was considered by the court, which had to determine whether the sentences were indeed manifestly excessive and whether the sentencing judge failed to adequately consider the nature and gravity of the offences. The applicant contended that the sentencing judge did not properly account for the different nature of the offences on his criminal record, particularly given there were no prior robbery offences or offences of violence. The court examined the sentencing judge’s reasoning and found that the judge had appropriately considered the Form 1 offences and the applicant's criminal history, concluding that the weight given to personal deterrence was justified. The court further clarified that the sentencing judge's approach to considering these factors was within the permissible bounds, and there was no error in the manner in which the judge synthesised the sentence.

The court held that the applicant's argument that the sentencing judge failed to recognise the significantly less serious nature of the matters on the record was unfounded. The judge's brief reference to the lengthy criminal history was deemed accurate and sufficient. The court rejected the applicant’s assertion that the sentencing judge must have reasoned in an impermissible way and emphasised that the synthesis of a sentence is an instinctive process, not subject to rigid sequential consideration of each factor. The court concluded that the sentences were not manifestly excessive and denied the application for leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JAMES J

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Ratio Decidendi

Legal Principle Established

Established by: JAMES J

The submission continued to the effect that his Honour failed to acknowledge the different nature of the offences on Johnson’s record. It was pointed out that there were no prior robbery offences and no offences of violence. In the absence of an express limitation, it was submitted, it must be assumed that his Honour increased the weight to be given to personal deterrence to deter the applicant from crimes similar to those for which he stood for sentence but of which he had no prior history. Alternatively, his Honour increased the weight to be given to personal deterrence that failed to recognise and properly take into account the significantly less serious nature of the matters on the record. The additional weight that could be given to personal deterrence when sentencing for the robbery offences was extremely limited but no such limitation was acknowledged.Consideration His Honour said that the Form 1 offences were being taken into account in accordance with the guideline judgment. I accept that that was a reference to Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518 and that his Honour had in mind the manner in which such matters may sound in sentence. So much appears from his Honour’s reference to “retribution and deterrence”. I note that in para [44] of the same judgment Spigelman CJ said this -44 The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (See R v Kay at [69].) It seems to me that there is no reason to suppose that his Honour did other than he said he would do, namely take the Form 1 matters into account in the manner required by this Court. His Honour’s reference to Johnson’s criminal history was brief but accurate. The history was long, stretching back to 1998, when Johnson was 16 years old. He had many convictions for offences of or involving theft and unlawful entry on to premises. Those offences were the “matters of dishonesty” that his Honour was referring to. It would not have been lost on his Honour that robbery includes theft. In my opinion his Honour was entitled to come to the view that Johnson’s record was an aggravating feature. His Honour was not required to state whether or exactly how he took account of “the interplay (and overlap) between the considerations relevant as a result of the Form 1 and those resulting from the applicant’s prior history”. It seems to me that the applicant’s submissions proceed on two misconceptions. The first is to assume by reference to things his Honour did not say that he must have reasoned in an impermissible way. The second is to assume, because his Honour said first that he intended to give effect to the Form 1 offences and then that he intended to give effect to the criminal record, that his Honour considered the first without regard to the second and vice versa. Such a construction is not warranted. A sentencing judge who has to take into account a number of matters is obliged to mention them one at a time. One may not infer from that that the judge deals with any before any other or without regard to any other. The synthesis of a sentence is an instinctive process.

Actions

Citations

Johnson v R [2010] NSWCCA 124

Most Recent Citation

Yow v R [2010] NSWCCA 251

Cases Citing This Decision

R v Scott [2025] NSWDC 84
Citation 1 (Para 14)

…the injury, they may be more liable: R v Goundar [2001] NSWCCA 198; R v Breedon , Court of Criminal Appeal (NSW), 3 December 1992, unrep; Johnson v R [2010] NSWCCA 124.…
R v Nyrhinen [2023] NSWDC 615
Citation 2 (Para 61)

…m, and each played their part in carrying it into effect: R v Goundar [2001] NSWCCA 198; R v Breedon NSWCCA, 3 December 1992, unreported; Johnson v R [2010] NSWCCA 124.…
R v Clare; R v Ilievski [2022] NSWDC 383
Citation 3 (Para 47)

…e, and each played their part in carrying it into effect; R v Goundar [2001] NSWCCA 198; R v Breedon NSWCCA, 3 December 1992, unreported; Johnson v R [2010] NSWCCA 124.…
R v Eager [2022] NSWDC 162
Citation 4 (Para 20)

…In Johnson v R [2010] NSWCCA 124, it was noted that it is rare of the Court to draw a distinction between co‑offenders involved in a joint criminal enterprise. Here, it was accepted that significant distinction can be drawn between Eager and the others, and even between those others.…
R v White [2022] NSWDC 265
Citation 5

…1999 No 1 of 2002 , [2013] NSWCCA 115; (2002) 56 NSWLR 146 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Irwin v R [2019] NSWCCA 133 Johnson v R [2010] NSWCCA 124 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59 Millwood v R [2012] NSWCCA 2 Moodie v R [2020] NSWCCA 160 Munda…
R v Butler; R v Russell [2021] NSWDC 666
Citation 6 (Para 122)

…es not necessarily mean that each offender is sentenced on the basis their individual actions had the same objective criminality: JW v R; Johnson v R [2010] NSWCCA 124. Different personal and criminal histories may “justify a real difference in the time each will serve in prison:” Postiglione v The Queen (1997) 189…
R v White [2021] NSWDC 272
Citation 7 (Para 5)

…dual actions had the same objective criminality. There can be reasons why one offender is less objectively culpable than others involved: Johnson v R [2010] NSWCCA 124. Here, however there is little to distinguish what was done by White from what was done by the others. While Nicholls did have more physical interact…
El Jamal v R [2021] NSWCCA 105
Citation 8

…ference in the time each will serve in prison. There can be reasons why one offender is less objectively culpable than others involved: Johnson v R [2010] NSWCCA 124. This case provides an example. Role and position in the hierarchy are often determinative of penalty in importation matters . Proper application of th…
Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18
Citation 9

…ili v R (2010) 242 CLR 520; [2010] HCA 45 Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353) Johnson v R [2010] NSWCCA 124 Kliendienst v R [2020] NSWCCA 98 Lloyd v R [2017] NSWCCA 303 Lowe v R (1984) 154 CLR 606; [1984] HCA 46 Mulato v R [2006] NSWCCA 282 Pham v R [2010] NSWCCA 208 Postiglione v The Queen (1997…
R v Waters (a psuedonym); R v Mook [2020] NSWDC 636
Citation 10 (Para 77)

…dividual actions have the same objective criminality. There can be reasons why one offender is less objectively culpable than the others: Johnson v R [2010] NSWCCA 124.…
R v Hardes [2020] NSWDC 191
Citation 11 (Para 27)

…ective criminality, and an assessment of their respective culpability will depend on their various levels of participation. In Johnson v R, Moody v R [2010] NSWCCA 124, Simpson J observed at [11];…
R v Bentley; R v Davies; R v Thomas; R v Tilley [2019] NSWSC 1649
Citation 12 (Para 80)

…lmost was killed by the blows inflicted upon him in the shed. The offenders were all party to the same joint criminal enterprise: Johnson v The Queen [2010] NSWCCA 124 at [4]; R v Sukkar [2011] NSWCCA 140 at [36]. The objectives of this enterprise could not have been achieved unless each offender played his assigned…
Kim v The Queen [2019] NSWCCA 165
Citation 13 (Para 45)

…Reference was also made to the remarks of Simpson J (as her Honour then was) in Johnson v R , Moody v R [2010] NSWCCA 124 at [11]:…
R v Sherrell [2019] NSWDC 261
Citation 14 (Para 12)

…individual actions had the same objective criminality. There can be reasons why one offender is less objectively culpable than the other: Johnson v R [2010] NSWCCA 124.…
R v El Jamal [2019] NSWDC 153
Citation 15 (Para 107)

…ifference in the time each will serve in prison. There can be reasons why one offender is less objectively culpable than others involved: Johnson v R [2010] NSWCCA 124. This case provides an example. Role and position in the hierarchy are often determinative of penalty in importation matters. Proper application of t…
XX v R [2018] NSWCCA 112
Citation 16 (Para 26)

…urse be compared with others such as Hudson v R [2016] NSWCCA 30, Somba v R [2012] NSWCCA 214, Moore v R [2010] NSWCCA 188 and Johnson v R; Moody v R [2010] NSWCCA 124 in all of which sentences were imposed that were very much in line with the present case.…
R v Tylan Brown [2018] NSWDC 265
Citation 17 (Para 17)

…This parity principle does not require each person to be sentenced the same or as having the same objective criminality: see Johnson v R [2010] NSWCCA 124. There can be reasons why one offender is less objectively culpable than the others involved. I am prepared to find here that there is some significance in the di…
Zreika v The Queen; Elsaj v The Queen [2016] NSWCCA 177
Citation 18 (Para 64)

…made to go out on each of the nights and days of the offences and commit offences of some such kind as were committed” – Johnson v R; Moody v R [2010] NSWCCA 124 at [82] per Barr AJ.…
R v Ridden [2016] NSWDC 2
Citation 19 (Para 65)

…s more or less objectively culpable than others. A lookout can be distinguished from those who use weapons and directly threaten victims: Johnson v R [2010] NSWCCA 124. So far as the 23 September matters are concerned Ms Ridden is not sentenced for taking Mr Brighton’s car, only its subsequent destruction. Ms Ridden…
R v MA; R v Byquar; R v Ramos [2012] NSWSC 1527
Citation 20 (Para 1)

…ser level of criminality. It was more serious to enter premises and threaten (and harm) persons than to wait outside in a car: Johnson v R; Moody v R [2010] NSWCCA 124 at [94].…
Somba v Regina [2012] NSWCCA 214
Citation 21 (Para 1)

…se that the participants in such a joint criminal enterprise are necessarily to be regarded as having had the same objective criminality: Johnson v R [2010] NSWCCA 124 per James J at [4]. (ii) The objective of such an enterprise cannot be achieved unless each participant plays his or her assigned role. It would be u…
Gebara v The Queen [2012] NSWCCA 107
Citation 22 (Para 23)

…ise should "begin with" and "not lose sight of" the fact that they were all participants in the commission of the same crime: Johnson v R ; Moody v R [2010] NSWCCA 124 at [4] per James J. The relevant principles are discussed in the judgment of Simpson J in Johnson and Moody at [12] to [17]. The majority in that cas…
Akkawi v R; Akkawi v R [2012] NSWCCA 11
Citation 23 (Para 6)

…The same applies to a decision of my own relied upon by the Crown to supposed contrary effect. That is the decision in Thomson v R; Moody v R [2010] NSWCCA 124. First, with respect to this point, my judgment was a minority decision; second, the remarks were made in the context of a joint criminal enterprise in which…
R v Sukkar [2011] NSWCCA 140
Citation 24 (Para 1)

…r Honour considered a number of cases concerning the role of a second degree principal offender or aider and abetter including Johnson v R; Moody v R [2010] NSWCCA 124, R v Swan [2006] NSWCCA 47 and GAS v The Queen (2004) 217 CLR 198.…
Yow v R [2010] NSWCCA 251
Citation 25

…D: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 CATEGORY: Principal judgment CASES CITED: Johnson v R; Moody v R [2010] NSWCCA 124 R v Fidow [2004] NSWCCA 172 R v Finn [2002] NSWCCA 86 R v Fisher [2001] NSWCCA 143 R v George [2004] NSWCCA 247; 149 A Crim R 38 R v Trevenna [2004] NS…

See all citing cases →

Cases Cited

R v JW [2010] NSWCCA 49
Citation 1 (Para 3)

…referred to statements of principle in previous decisions of this Court and in particular R v Goundar [2001] NSWCCA 198; 127 A Crim R 331 and R v JW [2010] NSWCCA 49.…
Hillier v Director of Public Prosecutions [2009] NSWCCA 312
Citation 2 (Para 14)

…aughton (2006) 66 NSWLR 566 ; Veen v the Queen (No. 2) (1988) 164 CLR 465; R v Wickham [2004] NSWCCA 193; Hillier v Director of Public Prosecutions [2009] NSWCCA 312 and Weininger v The Queen (2003) 212 CLR 629.…
Ta v The Queen [2009] NSWCCA 196
Citation 3 (Para 27)

…nce was made to two unrelated cases which resulted in sentences more favourable than those under attack; R v Baleiovalau [2009] NSWCCA 153 and R v Ta [2009] NSWCCA 196. The appellant in Baleiovalau received a head sentence of 10½ years and a non-parole period of 7½ years following a plea of guilty, a result very sim…
Baleiovalau v R [2009] NSWCCA 153
Citation 4 (Para 27)

…Reference was made to two unrelated cases which resulted in sentences more favourable than those under attack; R v Baleiovalau [2009] NSWCCA 153 and R v Ta [2009] NSWCCA 196. The appellant in Baleiovalau received a head sentence of 10½ years and a non-parole period of 7½ years following a plea of guilty, a result ve…
R v Wright [2009] NSWCCA 3
Citation 5 (Para 16)

…At [162] his Honour described as “a more complete statement of the applicable principles” a passage in R v Wright [2009] NSWCCA 3, in which James J said: “28If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to b…
R v George [2004] NSWCCA 247
Citation 6 (Para 28)

…he Court has pointed on a number of occasions to the difficulty of demonstrating error by reference to the facts and sentences in unrelated cases. In R v George (2004) 149 A Crim R 38 at [48] this Court, constituted by Wood CJ at CL, Adams and Kirby JJ said - We are unable to gain any meaningful assistance from a re…
R v Wickham [2004] NSWCCA 193
Citation 7 (Para 14)

…an offender’s criminal record may sound in sentence: R v McNaughton (2006) 66 NSWLR 566 ; Veen v the Queen (No. 2) (1988) 164 CLR 465; R v Wickham [2004] NSWCCA 193; Hillier v Director of Public Prosecutions [2009] NSWCCA 312 and Weininger v The Queen (2003) 212 CLR 629.…
GAS v The Queen [2004] HCA 22
Citation 8 (Para 16)

…ble, less culpable or even more culpable than the person who actually performed the criminal act.” His Honour referred to GAS v The Queen [2004] HCA 22; 217 CLR 198 at [23].…
R v Trevenna [2004] NSWCCA 43
Citation 9 (Para 28)

…368; R v Salameh (unreported, Court of Criminal Appeal, NSW, Hunt CJ at CL, McInerney and Blanch JJ, No 60728 of 1993, 9 June 1994) and R v Trevenna [2004] NSWCCA 43 at [98]-[101] per Barr J. At the most, other cases can do no more than become part of a range for sentencing ……
Weininger v The Queen [2003] HCA 14
Citation 10 (Para 14)

…en (No. 2) (1988) 164 CLR 465; R v Wickham [2004] NSWCCA 193; Hillier v Director of Public Prosecutions [2009] NSWCCA 312 and Weininger v The Queen (2003) 212 CLR 629.…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 11 (Para 11)

…judgment must have been to the decision of this Court in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518; (2002) 56 NSWLR 146.In that appeal Spigelman CJ said at [42] - 42 The position, in my opinion, is that, although a court is sentencing for a particular…
R v Hoschke [2001] NSWCCA 317
Citation 12 (Para 14)

…In R v Hoschke [2001] NSWCCA 317 Carruthers AJ said: “18… If two persons agree to perform a joint criminal enterprise, such as in the instant case of robbery of an unarmed, innocent bystander, then it is inappropriate to attempt to assess with any degree of precision the role which each played in the consummation of…
R v Goundar [2001] NSWCCA 198
Citation 13 (Para 3)

…minal enterprise, Simpson J has in her judgment referred to statements of principle in previous decisions of this Court and in particular R v Goundar [2001] NSWCCA 198; 127 A Crim R 331 and R v JW [2010] NSWCCA 49.…
Pearce v The Queen [1998] HCA 57
Citation 14 (Para 33)

…In my opinion, the requirements of The Queen v Pearce [1998] HCA 57; 194 CLR 610 have not been complied with.…
Veen v The Queen (No 2) [1988] HCA 14
Citation 15

…CASES CITED: R v Goundar [2001] NSWCCA 198; 127 A Crim R 331 R v JW [2010] NSWCCA 49 R v Breedon (NSWCCA, 3 December 1992, unreported) R v Hoschke [2001] NSWCCA 317 R v Wright [2009] NSWCCA 3 GAS v The Queen [2004] HCA 22; 217 CLR 198 The Queen v Pearce [1998] HCA 57; 194 CLR 610 Attorney General's …

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 22)
Crimes Act 1900 (ACT)
1 mention (from Para 39)
Firearms Act 1996 (TAS)
1 mention (from Para 39)