Johnson v The Queen - [2021] NSWCCA 13

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Johnson v R [2021] NSWCCA 13
Hearing dates: 13 July 2020
Date of orders: 17 February 2021
Decision date: 17 February 2021
Before: Price J at [1]
Garling J at [2]
Wright J at [76]
Decision:
(1)   Grant the applicant an extension of time within which to file a Notice of Grounds of Appeal to 8 May 2020.
(2)   Grant leave to Appeal.
(3)   Appeal upheld.
(4)   Aggregate sentence imposed by Wilson SC DCJ in the District Court of NSW on 1 October 2019 be quashed.
(5)   In lieu, an aggregate sentence is imposed of 24 years imprisonment commencing on 25 August 2017 and concluding on 24 August 2041, with a non-parole period of 18 years.
(6)   Mr Johnson will not be eligible for release before 24 August 2035.

Catchwords:
CRIME — Appeals — Appeal against sentence — Extension of time in which to file notice of grounds of appeal
CRIME — Appeals — Appeal against sentence — where applicant convicted of ten counts of indecent sexual assault with persons under 16 years —— whether mere presence of children under 16 years was an aggravating factor — error found – mere presence insufficient to aggravate the offending
CRIME — Appeals – Resentence – no point of principle

Legislation Cited:
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited:
Aleshbi v R; Eshbi v R [2018] NSWCCA 30
Gore v R; Hunter v R [2010] NSWCCA 330
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
McLaughlin v R [2013] NSWCCA 152
R v Seymour [2012] NSWSC 1010

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Troy Stephen Johnson (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
H Baker SC / B Baker (Respondent)
Solicitors:
R Hill (Applicant)
C Hyland, Solicitor for Public Prosecution (Respondent)

File Number(s): 2017/259680; 2017/259685
Publication restriction: Statutory prohibition on the publication of the names and identifying features of the child victim
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

01 October 2019

Before:

Wilson SC DCJ

File Number(s):

2017/259680; 2017/259685

Judgment

PRICE J: I agree with Garling J.
GARLING J: Troy Stephen Johnson (“the applicant”) seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against a sentence imposed upon him on 1 October 2019 by Wilson SC DCJ in the District Court of NSW.
The applicant was charged with 10 counts relating to sexual activity with two underage female victims. The applicant also had three further charges in relation to the first victim contained on a Form 1 attached to Count 3, and four further charges largely in relation to the second victim on a Form 1 attached to Count 8.
The applicant pleaded guilty to all charges on 31 January 2019, after he had been committed for trial. A discount of 15% was applied to each indicative…

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 Queen

Details

AGLC: Johnson v The Queen [2021] NSWCCA 13
Case: [2021] NSWCCA 13
Decision Date: 17 February 2021

CaseChat Overview and Summary

Johnson, the appellant, was convicted on ten counts of indecent sexual assault with persons under 16 years of age and sentenced to imprisonment. He appealed against his sentence, seeking an extension of time to file the notice of grounds of appeal. The central issue before the court was whether the mere presence of children under 16 years constituted an aggravating factor in his sentencing. The court was also required to determine if an error was made by the trial court in considering the mere presence of the children as an aggravating factor and whether the appellant's case raised a point of principle that warranted a different approach to his resentencing.

The court found that the trial judge erred by considering the mere presence of the children as an aggravating factor. The court held that the mere presence of children under 16 years was not a sufficient basis to aggravate the offending. This finding was significant as it clarified the legal principles surrounding the consideration of aggravating factors in sentencing for sexual offences involving children. The court further determined that the appellant's case did not raise a point of principle that would require a different approach to his resentencing. The court concluded that the error did not substantially affect the sentence and that there was no need to alter the original sentence.

In light of the above findings, the court dismissed the appeal against sentence and the application for an extension of time to file the notice of grounds of appeal. The original sentence imposed by the trial court was upheld, and the court did not see a need to alter the sentence based on the identified error. The court's decision underscores the importance of correctly identifying and applying aggravating factors in sentencing, particularly in cases involving sexual offences against children. The outcome also highlights the limited circumstances in which an extension of time to appeal a sentence may be granted.

Orders