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Johnstone v Tasmania

Johnstone v Tasmania

Case [2011] TASCCA 9 2 August 2011

Statutory Interpretation

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[2011] TASCCA 9

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Johnstone v Tasmania [2011] TASCCA 9

PARTIES:  JOHNSTONE, Dylan Matthew
  v
  STATE OF TASMANIA

FILE NO/S:  590/2011
DELIVERED ON:  2 August 2011
DELIVERED AT:  Hobart
HEARING DATE:  30 May 2011
JUDGMENT OF:  Evans, Blow and Porter JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Computer-related fraud – False online betting credits of $756,000 – Loss of $495,000 – Gambling addiction.

R v Grossi (2008) 23 VR 500, followed.
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  G A Richardson
           Respondent:  D G Coates SC
Solicitors:
           Appellant:  G A Richardson
           Respondent:  Director of Public Prosecutions

Judgment Number: [2011] TASCCA 9
Number of paragraphs: 17

Serial No 9/2011
File No 590/2011

DYLAN MATTHEW JOHNSTONE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
BLOW J
PORTER J
2 August 2011

Order of the Court

Appeal allowed.

Parole order made on 2 July 2010 varied to provide that the appellant is to be eligible for parole when he has served 21 months of his sentence.

Serial No 9/2011
File No 590/2011

DYLAN MATTHEW JOHNSTONE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
2 August 2011

I agree with the reasons of Blow J and the orders he proposes.

File No 590/2011

DYLAN MATTHEW JOHNSTONE v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW J
2 August 2011

This is a sentencing appeal. The appellant pleaded guilty to 362 charges of computer-related fraud, contrary to the Criminal Code, s257B. These crimes were committed over a period of only 6½ weeks, from 25 November 2009 to 8 January 2010 inclusive. The appellant, who lived in Warrnambool, Victoria, found a flaw in an on-line payment system, sent 362 fraudulent computer messages to the Tote Tasmania web server, and obtained false credits totalling $756,914 to a TAB betting account in his name. On 2 July 2010 Tennent J sentenced him to 3½ years' imprisonment, with effect from 21 June 2010, and ordered that he was to be eligible for parole when he had served 2½ years of that sentence. He has appealed, and contends that both the head sentence and the non-parole period were manifestly excessive.

The flaw that the appellant found was not in Tote Tasmania's systems, but in the system of an intermediary known as POLi. POLi provided a service which allowed consumers to purchase goods and services from merchants without providing their bank account details to the merchants. In September 2009 the appellant found a way of causing POLi to send false information to a merchant's web server, stating that funds had been received when they had not. On 14 November 2009 he opened a Tote Tasmania betting account using that company's website. He made a number of unsuccessful attempts to create false credits in that account in the following days,…

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 Johnstone v Tasmania

Details

AGLC: Johnstone v Tasmania [2011] TASCCA 9
Case: [2011] TASCCA 9
Decision Date: 2 August 2011

CaseChat Overview and Summary

The Full Court of the Supreme Court of Tasmania heard an appeal by the applicant, Johnstone, against a sentence imposed for computer-related fraud. The applicant had created false online betting credits totalling $756,000, resulting in a loss of $495,000 to the betting company. The applicant's gambling addiction was a significant factor in the case.

The primary legal issue before the Court was whether the sentence imposed was manifestly excessive, thereby justifying interference on appeal. This required the Court to consider the principles governing appeals against sentence, particularly in cases involving fraud and the impact of addiction on culpability and sentencing.

The Court allowed the appeal, finding that the original sentence was indeed too severe. In its reasoning, the Court acknowledged the seriousness of the offence and the substantial financial loss. However, it gave significant weight to the applicant's gambling addiction as a mitigating factor, which diminished his moral culpability. The Court applied the principle that sentences should reflect not only the gravity of the offence but also the individual circumstances of the offender, including any underlying conditions that contributed to their offending behaviour.

Consequently, the Court varied the parole order made on 2 July 2010. The appellant was made eligible for parole upon serving 21 months of his sentence, a reduction from the original period.

Orders

Orders of the court

1. Appeal allowed.

2. Parole order made on 2 July 2010 varied to provide that the appellant is to be eligible for parole when he has served 21 months of his sentence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Johnstone v Tasmania [2011] TASCCA 9

Most Recent Citation

Buddle v The Queen [2011] TASCCA 11

Cases citing this decision · 14 of 14 shown

Lockwood v Tasmania
[2025] TASCCA 6

…r head sentence was not shown to be manifestly excessive, the non-parole period made the sentence a manifestly excessive one. In Johnstone v Tasmania [2011] TASCCA 9, the non-parole period was set at 2½ years (a little over 70%) of a 3½ year term. The court concluded that having regard to mitigating circumstances,…
Lockwood v Tasmania
[2024] TASCCA 15

…r head sentence was not shown to be manifestly excessive, the non-parole period made the sentence a manifestly excessive one. In Johnstone v Tasmania [2011] TASCCA 9, the non-parole period was set at 2½ years (a little over 70%) of a 3½ year term. The court concluded that having regard to mitigating circumstances,…
SRR v Tasmania
[2023] TASCCA 6

…r head sentence was not shown to be manifestly excessive, the non-parole period made the sentence a manifestly excessive one. In Johnstone v Tasmania [2011] TASCCA 9, the non-parole period was set at 2½ years (a little over 70%) of a 3½ year term. The court concluded that having regard to mitigating circumstances,…
Director of Public Prosecutions v Kendall
[2021] TASCCA 10

…16 The prosecutor attached copies of four decisions of this Court which he said were broadly comparable: Johnstone v Tasmania [2011] TASCCA 9; Director of Public Prosecutions v Allen [2017] TASCCA 24; Hodgetts v Tasmania [2018] TASCCA 15; and Pickerell v Tasmania [2011] TASCCA 13. All involved substantial head sen…
Director of Public Prosecutions v Vincent
[2020] TASCCA 16 Para 67

…f Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, 20 Tas R 399 at [11], approved in Director of Public Prosecutions v Chatters [2011] TASCCA 9, 21 Tas R 26 at [67].…
Quirk v State of Tasmania
[2018] TASCCA 8 Para 1

…t [8], per Pearce J. That a non-parole period can render a head sentence manifestly excessive is also clear from such cases as Johnstone v Tasmania [2011] TASCCA 9; Pickrell v Tasmania [2011] TASCCA 13; Richman v Tasmania [2011] TASCCA 18 and Groenewege v Tasmania [2013] TASCCA 7.…
Mortyn v Tasmania
[2018] TASCCA 2 Para 1

…t [8], per Pearce J. That a non-parole period can render a head sentence manifestly excessive is also clear from such cases as Johnstone v Tasmania [2011] TASCCA 9; Pickrell v Tasmania [2011] TASCCA 13, Richman v Tasmania [2011] TASCCA 18 and Groenewege v Tasmania [2013] TASCCA 7…
Director of Public Prosecutions v Allen
[2017] TASCCA 24 Para 3

…en concluded that a gambling addiction had reduced the significance of general deterrence or the respondent's moral culpability: Johnstone v Tasmania [2011] TASCCA 9 at [13].…
Deakin v Tasmania
[2016] TASCCA 19 Para 8

…of the offender and the nature and seriousness of the offences committed: R v Verdins (2007) 16 VR 269 at [25]; Grossi at [55]; Johnstone v Tasmania [2011] TASCCA 9 at [13]. The reference by the learned sentencing judge to a "pathological gambling" addiction is to a form of impulse control disorder. The disorder…
Dimech v Tasmania
[2016] TASCCA 3 Para 1

…ge that a gambling addiction was at play, bearing in mind, of course, the limited circumstances in which that may be mitigatory: Johnstone v Tasmania [2011] TASCCA 9 at [13].…
Sclater v Tasmania
[2015] TASCCA 26 Para 15

…ative part of his sentence. That a non-parole period can render a head sentence manifestly excessive is clear from such cases as Johnstone v Tasmania [2011] TASCCA 9; Pickrell v Tasmania [2011] TASCCA 13 and Richman v Tasmania [2011] TASCCA 18.…
Connelly v Tasmania
[2015] TASCCA 15 Para 4

…r head sentence was not shown to be manifestly excessive, the non-parole period made the sentence a manifestly excessive one. In Johnstone v Tasmania [2011] TASCCA 9, the non-parole period was set at 2½ years (a little over 70%) of a 3½ year term. The court concluded that having regard to mitigating circumstances,…
Groenewege v Tasmania
[2013] TASCCA 7 Para 1

…r head sentence was not shown to be manifestly excessive, the non-parole period made the sentence a manifestly excessive one. In Johnstone v Tasmania [2011] TASCCA 9, the non-parole period was set at 2½ years (a little over 70%) of a 3½ year term. The court concluded that having regard to mitigating circumstances,…
Buddle v The Queen
[2011] TASCCA 11 Para 1

…ing a first offender, for an order to be made permitting parole after the shortest possible non-parole period. See, for example, Johnstone v Tasmania [2011] TASCCA 9. See also Prehn v R [2003] TASSC 55, in which this Court made a recognizance release order permitting an offender who had been sentenced to a total o…

View all 14 citing cases →

Cases cited in this decision · 7 of 7 shown

R v Powell
[2014] SASCFC 48

…case where evidence of addiction to gambling would have any significant effect upon the importance of the element of general deterrence." (See also R v Powell (2001) 81 SASR 9; Assi v R [2006] NSWCCA 257 at par[27]; Garnsey v Stamford (2002) 131 A Crim R 427 (Underwood J (as he then was)) at pars[11] – [15].) · Ste…
R v Grossi
[2008] VSCA 51 Para 1

…ting factor and, if so, what weight should be given to that factor. Redlich JA undertook a thorough review of the principal authorities in R v Grossi (2008) 23 VR 500 at pars[47] – [57]. At the risk of oversimplifying, I think it can be said that the following principles emerge from his Honour's analysis:…
Assi v R
[2006] NSWCCA 257

…ambling would have any significant effect upon the importance of the element of general deterrence." (See also R v Powell (2001) 81 SASR 9; Assi v R [2006] NSWCCA 257 at par[27]; Garnsey v Stamford (2002) 131 A Crim R 427 (Underwood J (as he then was)) at pars[11] – [15].) · Stealing because of a gambling addiction…
Vu v R
[2006] NSWCCA 188

…ss morally culpable than stealing because of pure greed, or stealing in order to fund some other criminal activity: R v Grossi at par[51]; Vu v R [2006] NSWCCA 188 at par[74] per Hall J; R v Henry (1999) 46 NSWLR 346 at par[225]. · Gambling addiction has been treated in the same manner as conditions induced by drugs…
Garnsey v Stamford
[2002] TASSC 43

…cant effect upon the importance of the element of general deterrence." (See also R v Powell (2001) 81 SASR 9; Assi v R [2006] NSWCCA 257 at par[27]; Garnsey v Stamford (2002) 131 A Crim R 427 (Underwood J (as he then was)) at pars[11] – [15].) · Stealing because of a gambling addiction should be regarded as less morally cul…
R v Henry
[1999] NSWCA 111

…reed, or stealing in order to fund some other criminal activity: R v Grossi at par[51]; Vu v R [2006] NSWCCA 188 at par[74] per Hall J; R v Henry (1999) 46 NSWLR 346 at par[225]. · Gambling addiction has been treated in the same manner as conditions induced by drugs or alcohol which, as a general rule, do not require…
A Crim R 226; R v Powell
[2001] SASC 450

…evidence of addiction to gambling would have any significant effect upon the importance of the element of general deterrence." (See also R v Powell (2001) 81 SASR 9; Assi v R [2006] NSWCCA 257 at par[27]; Garnsey v Stamford (2002) 131 A Crim R 427 (Underwood J (as he then was)) at pars[11] – [15].) · Stealing beca…

Legislation cited in this decision · 1

Sentencing Act 1997 (TAS)
17(3) 1 mention (from Para 1)