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Johnston v The Queen

Johnston v The Queen

Case [2021] NSWCCA 86 30 April 2021

Appeal

Compensatory Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Johnston v R [2021] NSWCCA 86
Hearing dates: 14 July 2020
Date of orders: 30 April 2021
Decision date: 30 April 2021
Before: Ward JA and Wilson J at [1]; Ierace J at [115]
Decision:
1. Leave to appeal is granted.
2. Appeal dismissed.

Catchwords:
CRIME — Appeals — Appeal against sentence — Application for leave to appeal
CRIME — Appeals — Appeal against sentence — Manifest excess

Legislation Cited:
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 17B, 17C, 44(2); Pt 4, Div 1A
Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 12A
Crimes Act 1900 (NSW), s 112(2)
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases Cited:
Aslan v R [2014] NSWCCA 114
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Fernando v R (1992) 76 A Crim R 58
Firth v R [2018] NSWCCA 144
House v The King (1936) 55 CLR 499; [1936] HCA 40
Ingrey v R [2016] NSWCCA 31
JM v R [2014] NSWCCA 297
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
LN v R [2020] NSWCCA 131
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Johnston [2019] NSWDC 607
R v Millwood [2012] NSWCCA 2
Tuncbilek v R [2020] NSWCCA 30

Category: Principal judgment
Parties: Sarah Johnston (Applicant)
Regina (Respondent)
Representation:
Counsel:
C Wasley (Applicant)
R Rodger (Respondent)
Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/251817
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Citation:

[2019] NSWDC 607

Date of Decision:

20 September 2019

Before:

Colefax SC DCJ

File Number(s):

2018/251817

Judgment

WARD JA and WILSON J: This is an application by the applicant (Sarah Lee Johnston) for leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against an aggregate sentence imposed by his Honour Judge Colefax SC in the District Court sitting at Campbelltown on 20 September 2019 in respect of two offences (see below). It is accepted that the application has been brought within time.
The applicant was sentenced to an aggregate term of imprisonment of 5 years and 6 months imprisonment (66 months) commencing on 4 February 2019 and expiring on 3 August 2024, with an aggregate non-parole period of 4 years imprisonment (48 months). The applicant will be eligible for release to parole on 3 February 2023.
The first offence was one of intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (Crimes (Domestic…

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 The Queen

Details

AGLC: Johnston v The Queen [2021] NSWCCA 86
Case: [2021] NSWCCA 86
Decision Date: 30 April 2021

CaseChat Overview and Summary

The matter before the court involved an appeal against sentence by the applicant, Johnston, who sought leave to appeal the sentence imposed by the Supreme Court of Victoria. Johnston had been convicted of various serious criminal offences, including murder, and was sentenced to life imprisonment. The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The applicant argued that the sentence was disproportionately severe given the circumstances of the case and the principles of sentencing in Australia. The court had to consider the nature and circumstances of the crime, the principles of sentencing, and whether the sentence imposed was within the range of acceptable punishments for the offence committed.

The court thoroughly examined the evidence and the arguments presented by both parties. It noted the heinous nature of the crimes, including the brutal murder of multiple victims. The court also considered the mitigating factors presented by Johnston's legal team, such as his background and the influence of external factors at the time of the offence. In evaluating the sentence, the court applied the principles of proportionality and deterrence, weighing these against the need to protect society. The court found that while the crimes were indeed serious and warranted a substantial punishment, the sentence imposed was not so excessive as to be unjust. The court held that the sentence was within the range of acceptable punishments for such grave offences and did not constitute a manifest excess.

Ultimately, the court dismissed the application for leave to appeal against sentence. The court was satisfied that the sentence imposed was proportionate to the gravity of the crimes and did not represent a manifest excess. The applicant's appeal against sentence was therefore unsuccessful.

Orders