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:
Solicitors:
S Kluss (Applicant)
H Baker SC / B Baker (Respondent)
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
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PRICE J: I agree with Garling J.
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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.
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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.
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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…
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- AGLC
- Johnson v The Queen [2021] NSWCCA 13
- Case
- [2021] NSWCCA 13
- Decision Date
CaseChat Overview and Summary
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
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
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Ratio Decidendi
Legal Principle Established
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