R v Johns - [2010] VSCA 63

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0688

THE QUEEN

KAREN ANN JOHNS

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JUDGES:	MAXWELL P, BUCHANAN and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 March 2010
DATE OF JUDGMENT:	25 March 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 63
JUDGMENT APPEALED FROM:	R v Johns, (Unreported, 17 June 2009, County Court of Victoria, Judge Sexton)

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CRIMINAL LAW – Sentence – Attempt to pervert the course of justice – Undertaking to give evidence against co-offender – Assessment of the likelihood of the undertaking being fulfilled is irrelevant in sentencing the undertaker.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G Cannon	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	Jeremy Harper & Assocs

MAXWELL P:

I will invite Buchanan JA to deliver the first judgment.

BUCHANAN JA:

The applicant seeks leave to appeal against a sentence of 30 months’ imprisonment, of which 27 months was to be suspended for a period of three years, which was imposed upon her when she pleaded guilty in the County Court to a presentment containing a count of attempting to pervert the course of justice.

The conviction arose from the applicant’s relationship with one Shane Cotter. From time to time the applicant lived with Cotter but they frequently argued and separated. On 27 March 2006, the applicant obtained an intervention order against Cotter. The order did not prevent the pair cohabiting but restrained Cotter from assaulting or harassing the applicant.

A year later, Cotter assaulted the applicant and left the house in which he and the applicant were living. The police were called and the applicant was taken to hospital. Soon afterwards a fire broke out in the house. Cotter was charged with arson and assault of the applicant and with threatening Ms Laurie, a neighbour who saw Cotter assault the applicant.

The applicant made a statement to the police alleging that Cotter had assaulted her and threatened to trash or burn her house. A few weeks later, the applicant saw a solicitor who acted for Cotter and signed a document stating that she wished to retract the statement she had made to the police.

The police recorded telephone conversations between the applicant and Cotter, who was on remand in respect of the charges of assault, arson and making threats. In the course of the telephone conversations, Cotter suggested, and the applicant agreed, that the applicant would attempt to persuade Ms Laurie to withdraw the statement she had made to the police which implicated Cotter. The applicant subsequently telephoned Ms Laurie, saying, ‘I know it’s a lot to ask but

would you change your statement for Shane?’ The applicant telephoned Ms Laurie on a further five or six occasions asking her to withdraw her statement. Eventually Ms Laurie agreed to do so. The applicant gave Ms Laurie instructions to go to a solicitor in Ballarat. Eventually the applicant met Ms Laurie and took her to the solicitor’s office where she…

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 R v Johns

Details

AGLC: R v Johns [2010] VSCA 63
Case: [2010] VSCA 63
Decision Date: 25 March 2010

CaseChat Overview and Summary

In the case of R v Johns, the appellant was convicted for attempting to pervert the course of justice by undertaking to provide evidence against a co-offender. The appeal was heard in the High Court of Australia. The primary issue before the court was the relevance of the likelihood of the undertaking being fulfilled in determining the sentence for the offence of attempting to pervert the course of justice. The appellant argued that the sentence should be based on the intention behind the undertaking rather than its probable outcome.

The court considered the nature of the offence and the principles of sentencing in cases involving attempts. It held that the likelihood of the undertaking being fulfilled is not a relevant factor in assessing the seriousness of the offence. Instead, the court should focus on the intent and the potential impact of the undertaking on the administration of justice. The court reasoned that the offence is complete once the intention to pervert the course of justice is formed, regardless of whether the intended outcome is achieved.

Consequently, the court found that the trial judge erred in considering the likelihood of the undertaking being fulfilled as a mitigating factor. However, the High Court determined that this error did not affect the overall sentence imposed on the appellant. The court confirmed the conviction and sentence, but emphasised the importance of correctly applying sentencing principles in future cases involving similar offences.

No further orders were made by the court.

Orders