Johnston v The Queen - [2012] VSCA 271

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0239
JASON ANDREW JOHNSTON	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and WHELAN JJA and HARGRAVE AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	8 November 2012
DATE OF JUDGMENT/ORDER:	9 November 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 271
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria, Judge Howie, Date of Sentence 28 June 2011

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CRIMINAL LAW – Appeal – Conviction – Whether trial judge misdirected jury regarding application of principles of acting in concert, in limiting use of evidence and in taking into account irrelevant considerations in exercising discretion – Appeal dismissed – No point of principle.

CRIMINAL LAW – Leave to appeal – Sentence – Aggravated burglary, robbery, criminal damage, armed robbery, theft and burglary – Total effective sentence of 5 years 10 months imprisonment, with non-parole period of 3 years 9 months – Three co-offenders - Whether sentences offended the principle of parity – Whether sentencing judge erred in orders for cumulation – Leave refused - No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A S Dickenson	Dowling McGregor Pty Ltd
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Whelan JA to deliver the first judgment.

WHELAN JA:

On 23 March 2011 the appellant was convicted of aggravated burglary, robbery, criminal damage, armed robbery, theft and burglary following a five‑day trial in the County Court.

The appellant was acquitted of one charge of armed robbery but he was convicted of an alternative charge of robbery, and one charge of common assault. The appellant had pleaded guilty to one further charge of theft.

Following a plea, the appellant was sentenced on 28 June 2011 as follows:

Count on Presentment Offence Maximum Sentence Cumulation

1 Aggravated Burglary [Crimes Act 1958(Vic) s 77(1)] 25 years 18 months 10 months

2 Robbery [Crimes Act 1958 (Vic) s 75] 15 years 1 year 8 months

3 Criminal Damage [Crimes Act 1958 (Vic) s 197(1)] 10 years 3 months Nil

5 Armed robbery [Crimes Act 1958 (Vic) s 75A(1)] 25 years 3 years Base

6 Theft [Crimes Act 1958 (Vic) s 74] 10 years 6 months 3 months

7 Burglary [Crimes Act 1958 (Vic) s 76] 10 years 18 months 1 year

8 Theft [Crimes Act 1958 (Vic) s 74] 10 years 3 months 1 month

Total Effective Sentence: 5 years 10 months

Non-Parole Period: 3 years 9 months

Counts 1‑6 concerned events on 20 December 2008. Counts 7 and 8 concerned events on 24 December 2008.

A co‑offender, Heidi Richards, ran a joint trial with the appellant pleading not guilty to all counts on an identical presentment. The jury returned identical verdicts to those returned in relation to the appellant and additionally found her guilty on count 8 (theft), the count to which the appellant had pleaded guilty. She was sentenced on 28 June 2011 by the…

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 [2012] VSCA 271
Case: [2012] VSCA 271
Decision Date: 8 November 2012

CaseChat Overview and Summary

The appeal before the court involved a challenge to the conviction of Johnston, who was found guilty of various criminal offences including aggravated burglary, robbery, criminal damage, armed robbery, theft, and burglary. The respondent, The Queen, sought to uphold the conviction and sentence. The case was heard in the High Court of Australia, which considered both the conviction and the sentence.

The primary legal issues addressed by the court were whether the trial judge misdirected the jury regarding the application of the principles of acting in concert, in limiting the use of evidence, and in taking into account irrelevant considerations when exercising their discretion. The court also examined whether the sentencing judge erred in the orders for cumulation and whether the total effective sentence of 5 years and 10 months, with a non-parole period of 3 years and 9 months, offended the principle of parity between the sentences of the three co-offenders.

The High Court found no misdirection by the trial judge and upheld the conviction. The court held that the trial judge correctly applied the principles of acting in concert, and the jury was properly directed in relation to the evidence and considerations. Regarding the sentence, the court found no error in the orders for cumulation and concluded that the sentence did not offend the principle of parity. The appeal was dismissed, and leave to appeal the sentence was refused as there was no point of principle involved.

In summary, the High Court dismissed the appeal against both the conviction and the sentence. The court found no misdirection by the trial judge, and the sentence was deemed appropriate, with no breach of the principle of parity between co-offenders.

Orders