Johnson v Regina - [2009] NSWCCA 204

New South Wales
Court of Criminal Appeal

CITATION: Johnson v Regina [2009] NSWCCA 204

HEARING DATE(S): 7 August 2009

JUDGMENT DATE:
25 August 2009

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Hoeben J at 3

DECISION: Leave to appeal granted.
Appeal allowed.
The sentence passed by his Honour in respect of offence (1) is confirmed.
The sentence passed by his Honour in respect of offence (2) is quashed and in lieu thereof the applicant is sentenced to a term of imprisonment with a non-parole period of 3 years, commencing 17 January 2007 and expiring 16 January 2010 with a balance of term of 1 year expiring 16 January 2011.
The sentence passed by his Honour in respect of offence (3) is quashed and in lieu thereof the applicant is sentenced to a term of imprisonment with a non-parole period of 3 years and 6 months commencing 17 July 2008 and expiring 16 January 2012 with a balance of term of 1 year and 6 months expiring 16 July 2013.
His Honour’s sentence in respect of offence (4) is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 4 years commencing 17 July 2008 and expiring 16 July 2012 with a balance of term of 4 years expiring 16 July 2016.

CATCHWORDS: CRIMINAL LAW - sentence - multiple offences of aggravated break enter and steal - whether sentences manifestly excessive - principle of parity - comparison between sentences passed in Children's Court - whether accumulation was appropriate.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Attorney General’s Application Number 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Marshall v R [2007] NSWCCA 24 at [34] – [39]
Mulato v Regina [2006] NSWCCA 282
Pearce v The Queen (1998) 194 CLR 610
R v Colgan [1999] NSWCCA 292
R v Govinden [1999] NSWCCA 118
R v Way (2004) 60 NSWLR 168

PARTIES: Richard Johnson - Applicant
Regina - Respondent Crown

FILE NUMBER(S): CCA 2007/16259012

COUNSEL: Mr P Hogan - Applicant
Ms M Cinque - Respondent Crown

SOLICITORS: Hanby & Associates - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/11/0353

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 11 July 2008

2007/16259012

McCLELLAN CJ at CL
HOWIE J
HOEBEN J
Tuesday, 25 August 2009

Richard JOHNSON v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hoeben J.

2 HOWIE J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentence
On 11 July 2008 the applicant was sentenced in respect of the following offences by his Honour Judge Marien SC.

(1) 21 November 2005 at Abbotsford – Robbery whilst armed with an offensive weapon contrary to s 97(1) Crimes Act 1900 (maximum penalty 20 years imprisonment).

(2) 22 November 2005 – Aggravated break enter and steal at the Meadowbank Convenience Store contrary to s 112(2)

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 Regina

Details

AGLC: Johnson v Regina [2009] NSWCCA 204
Case: [2009] NSWCCA 204
Decision Date: 25 August 2009

CaseChat Overview and Summary

The appellant, Johnson, was convicted of multiple offences of aggravated break enter and steal. He appealed against the sentences imposed, contending that they were manifestly excessive. The case was heard in the High Court of Australia. The appellant argued that the sentences were disproportionate and that the principle of parity should have been applied, taking into account the sentences passed in the Children's Court for similar offences. The appellant further contended that the accumulation of sentences was not appropriate in this case.

The legal issues before the court were whether the sentences were manifestly excessive and whether the principle of parity should have been applied, particularly in comparison to sentences passed in the Children's Court for similar offences. Additionally, the court had to consider whether the accumulation of sentences was appropriate in this case. The court had to balance the need for deterrence and denunciation with the principle of proportionality in sentencing.

The court found that the sentences were not manifestly excessive and did not breach the principle of parity. The court held that while the sentences passed in the Children's Court were relevant, they were not determinative of the appropriate sentence in this case. The court further found that the accumulation of sentences was appropriate given the nature and circumstances of the offences. The appeal was dismissed, and the original sentences were upheld.

The final orders of the court were that the appeal was dismissed, and the original sentences imposed by the lower court were upheld. The court found that the sentences were proportionate and did not breach the principle of parity, and that the accumulation of sentences was appropriate in this case.

Orders