Johnson v The Queen - [2011] VSCA 360

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0241

GLENN TRAVIS JOHNSON
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WARREN CJ and HANSEN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2011
DATE OF JUDGMENT:	14 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 360
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Chettle, 15 February 2010)

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CRIMINAL LAW – Sentence – Intentionally cause serious injury - Guilty plea – Mitigating factors – Relevance of intoxication – R v Martin (2007) 20 VR 14 distinguished – Sentence of six years’ imprisonment not manifestly excessive – Driving while exceeding prescribed concentration of alcohol – Sentence of six months’ imprisonment – Cumulation of 3 months open – No breach of totality – Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Doyle	Patrick W. Dwyer
For the Respondent	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

HANSEN JA:

Glenn Travis Johnson (‘the appellant’) pleaded guilty in the County Court to one count of intentionally causing serious injury[1] and a summary offence of driving while exceeding the prescribed concentration of alcohol.[2] His blood alcohol level was 0.135%, in circumstances where his priors for drink driving required him to have a zero blood alcohol level when driving.
[1]The maximum penalty was 20 years’ imprisonment.
[2]The maximum penalty applicable to the appellant was 12 months’ imprisonment.

On 15 February 2010, he was sentenced to six years’ imprisonment for intentionally causing serious injury and six months’ imprisonment for the driving offence. The judge ordered that three months of the latter sentence be served cumulatively on the former, making a total effective sentence of six years and three months’ imprisonment. The judge fixed a non-parole period of four years and three months. The judge also cancelled the appellant’s drivers licence and disqualified him from obtaining a further licence for a period of 26 months, to commence on 15 February 2013.

The judge declared, pursuant to s 6AAA of the Sentencing Act 1991, that but for the plea of guilty, he would have imposed a sentence of 8 years’ imprisonment, with a non-parole period of 6 years.

The appellant was granted leave to appeal against sentence on the ground that the sentence is manifestly excessive. The appellant also seeks leave to rely on a further ground that the judge erred in ordering that three months of the sentence imposed on the driving offence be served cumulatively on the sentence for intentionally causing serious injury. I would give the appellant leave to rely on the further ground and we have heard argument upon it.

The offending

The judge sentenced on the basis of the Crown Opening, which he incorporated into his sentencing remarks. On 6 December 2008, the appellant, then aged 34, was at his home in Melton South with his friend Ms Holding and her children. The appellant had been drinking alcohol throughout the day and was cooking a barbeque. The victim,…

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 [2011] VSCA 360
Case: [2011] VSCA 360
Decision Date: 14 November 2011

CaseChat Overview and Summary

The appellant, Johnson, was charged with intentionally causing serious injury to another person and driving while exceeding the prescribed concentration of alcohol. Johnson pleaded guilty to both charges and was sentenced to six years' imprisonment for the first offence and six months' imprisonment for the second, with the latter sentence to run concurrently. Johnson appealed against the length of his sentence, arguing that it was manifestly excessive. The Crown cross-appealed, asserting that Johnson's sentence should have been longer.

The primary legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The court was also required to consider the relevance of intoxication to the sentencing process and whether the totality principle had been breached. The court considered the relevant authorities, including R v Martin, and examined the particular circumstances of the case, including the gravity of the offences, the appellant's culpability, and the need for deterrence and rehabilitation. The court found that the trial judge had properly considered the relevant factors and had not erred in imposing the sentence. The court also found that the totality principle had not been breached, as the sentences were cumulative and not concurrent.

The court held that the sentence of six years' imprisonment for the first offence was not manifestly excessive. The court found that the trial judge had properly considered the appellant's mitigating factors, including his guilty plea and his intoxication at the time of the offence. The court also found that the sentence of six months' imprisonment for the second offence was appropriate, as it reflected the seriousness of the offence and the need for deterrence. The court rejected the appellant's argument that his intoxication should have been given greater weight in the sentencing process, finding that the trial judge had properly considered this factor. The court also rejected the Crown's argument that the sentence should have been longer, finding that the trial judge had properly exercised his discretion.

The appeal and cross-appeal were dismissed, with no point of principle established. The sentences imposed by the trial judge were affirmed.

Orders