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Johnson v The King

Johnson v The King

Case [2022] VSCA 228 20 October 2022

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0094

TERRY JAMES JOHNSON	Applicant
v
The KING	Respondent

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JUDGES:	PRIEST AP and NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2022
DATE OF JUDGMENT:	20 October 2022
medium neutral citation:	[2022] VSCA 228
JUDGMENT APPEALED FROM:	DPP v Johnson [2022] VCC 932 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in methylamphetamine and other offences – Total effective sentence of two years and six months’ imprisonment with non-parole period of 16 months – Whether judge mischaracterised scale of the trafficking – Whether sentence manifestly excessive – Leave to appeal refused.

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Counsel
Applicant:		Ms M Greener
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Slade & Parsons
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
niall ja:

Introduction

At approximately 6.45 pm on 19 June 2021, Sergeant Matthew Wilson was performing solo patrol duties in the Melbourne CBD when he noticed two Suzuki motorbikes parked on the footpath outside 7 Katherine Place. He saw the applicant and another man, Jordan Robinson, approach the motorcycles (which appeared to have fraudulent registration plates affixed). Sergeant Wilson searched the applicant pursuant to s 82 of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’). Ultimately, the applicant was found in possession of 114.6 grams of ice (methylamphetamine) — 94 grams pure — a small quantity of ecstasy and $690 cash. Approximately 111.9 grams of the ice was in a large ziploc bag; 1.8 grams and 1.9 grams of ice respectively in two smaller ziploc bags; and .3 grams of ecstasy in another ziploc bag. He also had a bag containing a number of empty ziploc bags.
On 9 June 2022, the applicant pleaded guilty to trafficking and possession of a drug of dependence (ice and ecstasy respectively), and to a number of related summary charges. Following a plea, the judge sentenced the applicant to two years and six months’ imprisonment, with a non-parole period of 16 months, together with an aggregate fine of $1500, in accordance with the following table:

Charge

Offence

Sentence

Cumulation

Indictment

1

Possessing a drug of dependence (ecstasy)[1]

$300 fine

N/A

2

Trafficking a drug of dependence (ecstasy)[2]

2 years and 6 months

Base

Related summary offences

3

Dealing with property suspected to be proceeds of crime[3]

2 months

—

4

Fraudulently use registration plates[4]

Aggregate $1500 fine

N/A

5

Using an unregistered vehicle[5]

7

Driving without ‘P’ plate[6]

8

Using a vehicle displaying a representation of a registration plate[7]

[1]Drugs Act, s 73. In the circumstances, the maximum penalty was one year imprisonment.
[2]Drugs Act, s 71AC. The maximum penalty is 15 years’ imprisonment.
[3]Crimes Act 1958, s 195. The maximum penalty is two years’ imprisonment.
[4]Road Safety Act 1986, s 72. The maximum penalty is two months’ imprisonment.
[5]Road Safety Act 1986, s 7(1)(a). In the circumstances, the maximum penalty is 50 penalty units.
[6]Road Safety…

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 The King

Details

AGLC: Johnson v The King [2022] VSCA 228
Case: [2022] VSCA 228
Decision Date: 20 October 2022

CaseChat Overview and Summary

In the matter of Johnson v The King, the appellant, Johnson, was convicted of trafficking in methylamphetamine and other related offences. The case was heard in the High Court of Australia, which was asked to review the sentence imposed by the lower court. Johnson was sentenced to a total effective term of two years and six months’ imprisonment, with a non-parole period of 16 months. The appellant contended that the judge mischaracterised the scale of the drug trafficking and that the sentence was manifestly excessive. The High Court was tasked with determining whether the lower court's characterisation of the trafficking scale was accurate and whether the sentence was appropriate in the circumstances.

The primary legal issues that the High Court considered were whether the lower court's assessment of the trafficking scale was correct and whether the sentence imposed was manifestly excessive. The appellant argued that the lower court had underestimated the scale of the trafficking, thereby leading to an overestimation of the seriousness of the offences. Additionally, Johnson contended that the sentence was manifestly excessive given the totality of the circumstances, including his background and personal circumstances. The High Court needed to examine these issues to determine if the sentence imposed was just and appropriate.

In its judgment, the High Court found that the lower court had not mischaracterised the scale of the trafficking. The evidence presented supported the lower court's findings, and the Court was satisfied that the characterisation was accurate. Furthermore, the High Court concluded that the sentence was not manifestly excessive. The totality of the circumstances, including the nature and seriousness of the offences, the appellant's criminal history, and other relevant factors, justified the sentence imposed. Consequently, the Court held that the sentence was proportionate and appropriate, and therefore, the appeal was dismissed.

The final orders of the Court were that the appeal was dismissed, and the sentence imposed by the lower court was upheld. The High Court did not find any errors in the lower court's assessment of the trafficking scale or in the sentence imposed, and thus, the appellant's application for leave to appeal was refused. The lower court's judgment and sentence were affirmed, and Johnson was required to serve the two years and six months’ imprisonment with a non-parole period of 16 months.

Orders