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Johnston v R

Johnston v R

Case [2017] NSWCCA 53 27 March 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Johnston v R [2017] NSWCCA 53
Hearing dates: 31 January 2017
Date of orders: 27 March 2017
Decision date: 27 March 2017
Before: Bathurst CJ at [1]; Johnson J at [76]; Fagan J at [77]
Decision:
1. Grant the applicant an extension of time to apply for leave to appeal against the sentence imposed on him.
2. Grant the applicant leave to appeal.
3. Dismiss the appeal.
Catchwords: CRIMINAL LAW – appeal – sentencing – white-collar crime – fraud offences – rolled up counts – gambling addiction – relevance of gambling addiction at sentence – whether gambling addiction mitigating factor – whether error in remarking that gambling addiction cannot be equated with drug addiction at sentence – whether error in assessment of the objective seriousness of the offence – rehabilitation – whether error in consideration of rehabilitative actions occurring after arrest – whether insufficient weight given to reparation, good character and first offender status – whether manifestly excessive
Legislation Cited: Corporations Act 2001 (Cth) s 1041G
Crimes (Sentencing Procedure) Act 1999 (NSW) s 11
Crimes Act 1900 (NSW) s 192E
Sentencing Act 1991 (Vic) s 6H
Cases Cited: Assi v R [2006] NSWCCA 257
Bland v The Queen (2014) 241 A Crim R 51; [2014] NSWCCA 82
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Hanna v R [2015] NSWCCA 326
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Le v R [2006] NSWCCA 136
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Marks v R [2009] NSWCCA 24
McLaren v R [2012] NSWCCA 284
Muldrock v The Queen (2011) 244 CLR 120
Ourdi v The Queen (2009) 193 A Crim R 381; [2009] NSWCCA 46
Power v R [2002] NSWCCA 244
R v Chen [2015] NSWCCA 122
R v De Leeuw [2015] NSWCCA 183
R v Donald [2013] NSWCCA 238
R v Glynatsis (2013) 230 A Crim R 99; [2013] NSWCCA 131
R v Grossi (2008) 183 A Crim R 15; [2008] VSCA 51
R v Hawker [2001] NSWCCA 148
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Huang, R v Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259
R v Martin [2005] NSWCCA 190
R v McDonald (1994) 71 A Crim R 370
R v Molesworth [1999] NSWCCA 43
R v Richard [2011] NSWSC 866
R v Roussety (2008) 24 VR 253; [2008] VSCA 259
R v Todorovic [2008] NSWCCA 49
R v Woodman [2001] NSWCCA 310
Category: Principal judgment
Parties: Bruce Alan Johnston (Applicant)
Crown (Respondent)
Representation:
Counsel:
R Mathur (Applicant)
E Balodis (Respondent)
Solicitors:
Phillip Ryan Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/219634
Decision under appeal

Court or…

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 Johnston v R

Details

AGLC: Johnston v R [2017] NSWCCA 53
Case: [2017] NSWCCA 53
Decision Date: 27 March 2017

CaseChat Overview and Summary

The appellant, Johnston, appealed against his sentence imposed by the County Court for fraud offences. The respondent, the Crown, submitted that the appeal should be dismissed. The Court of Appeal in this case was required to determine whether the primary judge erred in several respects, including the relevance of Johnston's gambling addiction at sentencing, the assessment of the objective seriousness of the offence, and whether sufficient weight was given to rehabilitative actions, good character, and Johnston's status as a first offender. The appeal also questioned whether the sentence was manifestly excessive.

The Court of Appeal held that the primary judge did not err in concluding that Johnston's gambling addiction was not a mitigating factor at sentencing. The court found that it was not open to the primary judge to equate Johnston's gambling addiction with drug addiction. The Court of Appeal found no error in the primary judge's assessment of the objective seriousness of the offence. The appeal was dismissed as the court found that the sentence was not manifestly excessive and that sufficient weight had been given to rehabilitative actions, good character, and Johnston's status as a first offender.

Orders