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Johnston v The Queen

Johnston v The Queen

Case [2013] VSCA 362 10 December 2013

Appeal

Aggravated & Exemplary Damages

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0299
BRENDAN JOHNSTON	Appellant
v
THE QUEEN	Respondent

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JUDGES	REDLICH, PRIEST JJA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	3 September 2013
DATE OF JUDGMENT	10 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 362
JUDGMENT APPEALED FROM	DPP v Johnston (Unreported, County Court of Victoria, Judge Chettle, 23 November 2012)

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CRIMINAL LAW – Appeal against sentence – Aggravated burglary – Intentionally cause injury – Appellant broke into estranged partner’s house and assaulted her – Breach of intervention order – Adequacy of sentence – Appellant had underlying depression and anxiety disorder – Whether sentencing judge erred in finding the Verdins principles were not enlivened – Substance abuse not a factor in mitigation – Mental state affecting voluntary drug taking – Whether mitigating factor – Morrison v The Queen [2012] VSCA 22; Arvanitidis v The Queen (2008) 202 A Crim R 300 applied.

CRIMINAL LAW – Threat to inflict serious injury – Threat to victim recorded in phone conversation between the appellant and his mother – Appellant never intended for victim to hear the threat – Manifest excess – Appeal allowed – Appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Appellant	Ms F H Todd	James Dowsley & Assoc
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

On 4 October 2012, the appellant pleaded guilty to threatening to inflict serious injury, intentionally damaging property, aggravated burglary, intentionally causing serious injury and two summary charges. On 23 November 2012, he was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Threaten to inflict serious injury [Crimes Act 1958 (Vic) s 21] 5 years 6 months 6 months

2 Intentionally damage property [Crimes Act 1958 (Vic) s 197(1)] 10 years 6 months -

3 Aggravated Burglary [Crimes Act 1958 (Vic) s 77(1)] 25 Years 3 years 6 months Base

4 Intentionally causing injury [Crimes Act 1958 (Vic) s 18] 5 years 3 years 1 year 6 months

Summary Charge 7 Breach of family violence intervention order [Family Violence Protection Act 2008 (Vic) s 123(2)] 2 years and/or 240 penalty units 3 months -

Summary Charge 8 Act in a way that is prejudicial to the good order of a police gaol [Corrections (Police Gaols) Regulations2005 (Vic) r 13(1)(a)(i)] 10 penalty units - -

Total Effective Sentence: 5 years 6 months

Non-Parole Period: 3 years 9 months

Pre-sentence Detention Declared: 177 days

6AAA Statement: 6 years 6 months’ imprisonment with a non-parole period of 5 years

Other orders: $400.00 fine for Summary Charge 8.

On 29 May 2013, the appellant was granted leave to appeal by Ashley JA on two grounds. The first was that the individual sentences on charges 1, 3, and 4, the total effective sentence, and the non-parole period are manifestly excessive and offend the principle of totality. The second was that the judge erred in his approach to…

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 [2013] VSCA 362
Case: [2013] VSCA 362
Decision Date: 10 December 2013

CaseChat Overview and Summary

In Johnston v The Queen, the appellant appealed against the sentence imposed by the County Court for aggravated burglary and assault. The appellant had broken into the house of his estranged partner, where he assaulted her, breaching an existing intervention order. The appellant had a history of depression and anxiety, which was considered during sentencing. The primary issue was whether the sentencing judge erred in concluding that the principles outlined in Verdins were not applicable and whether the appellant's substance abuse and mental state should have been considered as mitigating factors.

The court examined whether the sentencing judge appropriately applied the principles in Verdins, particularly given the appellant's mental health conditions and the impact of substance abuse on his voluntary drug use. The court also considered whether the threat to inflict serious injury, recorded in a phone conversation between the appellant and his mother, should have been factored into the sentence, even though the victim did not hear the threat. The court found that the sentencing judge did not adequately consider the appellant's mental state and the nature of the threat, leading to a manifest excess in the original sentence.

The Court of Appeal allowed the appeal and re-sentenced the appellant. The court held that the sentencing judge had not properly weighed the mitigating factors, including the appellant's mental health and the nature of the threat. The court concluded that the original sentence was manifestly excessive and, therefore, re-sentenced the appellant to a term that more appropriately reflected the mitigating factors considered.

Orders