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R v Johnson

R v Johnson

Case [2014] NSWDC 91 27 June 2014

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District Court

New South Wales

Medium Neutral Citation: R v Johnson [2014] NSWDC 91
Hearing dates: 18 June 2014; 27 June 2014
Decision date: 27 June 2014
Before: Neilson J
Decision:
Appeal allowed.
Local Court sentences set aside.
Aggregate sentence of imprisonment for 3 years 3 months imposed comprising a non-parole period of 1 year 11 months and a balance of 1 year 4 months.

Catchwords: Offender pleaded guilty to four principal offences, two contrary to Crimes Act 1900 s 178BA and two contrary to s 178BB - Offender also asked the Court to take into account two further offences under s 178BB on Forms 1 - Total monetary benefit to offender in the order of $0.5 million - No moneys repaid - Limited remorse - Prior good character - Personal circumstances included a severe mental illness arising after the offending conduct (between 2008 and 2009) - Alleged delay in prosecution - Local Court imposed a sentence of 18 months Home Detention with a non-parole period of 11 months in respect of each offence, wholly concurrent - Crown appeal against leniency - Offences objectively grave - significance of offender's mental illness
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Marks v R [2009] NSWCCA 24
Mitchell v R [2006] NSWCCA 72
R v Chan [2000] NSWCCA 345
R v Doan [2000] 317; [2000] 50 NSWLR 115
R v Farlow [2001] NSWCCA 348
R v Hawker [2001] NSWCCA 148
R v Smith (1987) 27 A Crim R 315
R v Tripodina [2001] NSWCCA 136
R v Vachalec [1981] 1 NSWLR 351
Category: Principal judgment
Parties: Crown (Appellant)
David Johnson (Respondent)
Representation: Mr Foord (Respondent)
Mr Wright (solicitor) (Appellant)
Solicitor for Director of Public Prosecutions (Appellant)
Garland Hawthorn & Brahe (Respondent)

File Number(s): 2012/369171
Publication restriction: No
Decision under appeal

Date of Decision:

2014-02-20 00:00:00

Before:

Magistrate O'Brien

Judgment

HIS HONOUR: This is an appeal by the Crown against the alleged inadequacy of sentences imposed upon the respondent by Magistrate O'Brien sitting in the Downing Centre Local Court on 20 February 2014. The respondent stood for sentence in respect of four principal charges. In respect of each of the third and fourth principal charges the respondent asked the learned magistrate to take into consideration on a Form 1 a further offence. In respect of each principal charge the learned magistrate sentenced the respondent to home detention for a term of 18 months commencing on 20 February 2014, the day on which he passed sentence. The four sentences for home detention were wholly concurrent: no accumulation was possible because of the provisions of s 79 of the Crimes (Sentencing Procedure) Act1999.

The Crown accepts that the offender pleaded guilty at the earliest available opportunity. The Court attendance notices commencing the prosecution were filed on 21 November 2012 and the offender pleaded guilty on 12 February 2013. The Crown accepts that…

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 Johnson

Details

AGLC: R v Johnson [2014] NSWDC 91
Case: [2014] NSWDC 91
Decision Date: 27 June 2014

CaseChat Overview and Summary

The case of R v Johnson involved the offender who pleaded guilty to four principal offences, two under section 178BA and two under section 178BB of the Crimes Act 1900. Additionally, the offender requested that the court consider two further offences under section 178BB. The offender had gained a monetary benefit of approximately $0.5 million from the offences, with no repayment made. The offender showed limited remorse and had a prior good character. The offender's personal circumstances included a severe mental illness that developed after the commission of the offences, between 2008 and 2009. The offender also raised an allegation of delay in prosecution. The Local Court sentenced the offender to 18 months of home detention with a non-parole period of 11 months for each offence, all to run concurrently. The Crown appealed against the leniency of the sentence.

The legal issues before the court were whether the Local Court had exercised its discretion properly in imposing a sentence of home detention, considering the gravity of the offences and the offender's mental illness. The court was also required to determine if the sentence imposed was manifestly inadequate.

The court held that the offences were objectively grave, and the offender's mental illness was a significant factor. The Local Court had failed to adequately address the offender's limited remorse and the substantial monetary benefit gained. The court found that the sentence imposed was manifestly inadequate. The Crown's appeal was allowed, and the Local Court sentences were set aside. An aggregate sentence of imprisonment for 3 years and 3 months was imposed, with a non-parole period of 1 year and 11 months and the balance of 1 year and 4 months.

Orders

Orders of the court

Appeal allowed.

Local Court sentences set aside.

Aggregate sentence of imprisonment for 3 years 3 months imposed comprising a non-parole period of 1 year 11 months and a balance of 1 year 4 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Johnson [2014] NSWDC 91

Most Recent Citation

Park v The Queen [2020] NSWCCA 90

Cases citing this decision · 1 of 1 shown

Park v The Queen
[2020] NSWCCA 90 Para 189

…In R v Johnson [2014] NSWDC 91, there was a Crown appeal in respect of a sentence of imprisonment by way of home detention imposed in the Local Court in respect of four indictable fraud offences for which there was a maximum penalty of 5 years. There was a 25% reduction for the pleas of guilty. The judge imposed a…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 1

…oritative decision as to what a court should do where an offender suffers from a mental illness is Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, a decision of five judges of the Court of Appeal including Allsop P, Basten JA, McClellan CJ at CL, Simpson J and Barr AJ. At [17…
Marks v R
[2009] NSWCCA 24 Para 1

…The final decision to which I have been referred is Marks v R [2009] NSWCCA 24. The principal judgment was given by Harrison J with whom McClellan CJ at CL and Hall J concurred. In that case there were five principal charges. The first four were contrary to s 178BA (1) of the Crimes Act and the judgment records tha…
Mitchell v R
[2006] NSWCCA 72 Para 1

…The next decision is Mitchell v R [2006] NSWCCA 72. That was a successful appeal against severity of a sentence passed by Solomon DCJ. The judgment of the Court of Criminal Appeal was given by Latham J with whom Sully J agreed. His Honour Judge Solomon had imposed an eight year sentence with a five year non-parole…
R v Doan
[2003] NSWSC 345 Para 1

…eed a total of five years imprisonment. How the Local Court should proceed in cases such as this is referred to in R v Doan [2000] NSWCCA 317; [2000] 50 NSWLR 115. In that case it was contended that Freeman DCJ erred in failing to take into account the circumstance that a co-offender was dealt with in a court w…
R v Farlow
[2001] NSWCCA 348

…0) 79 NSWLR 1 Marks v R [2009] NSWCCA 24 Mitchell v R [2006] NSWCCA 72 R v Chan [2000] NSWCCA 345 R v Doan [2000] 317; [2000] 50 NSWLR 115 R v Farlow [2001] NSWCCA 348 R v Hawker [2001] NSWCCA 148 R v Smith (1987) 27 A Crim R 315 R v Tripodina [2001] NSWCCA 136 R v Vachalec [1981] 1 NSWLR 351 Category: Principal jud…
Regina v Tripodina
[2001] NSWCCA 136 Para 1

…The next case is R v Tripodina [2001] NSWCCA 136. In that case the decision of the Court of Criminal Appeal was given by Smart AJ with whom Dowd J concurred. That also was an appeal against the severity of sentences imposed by Kinchington DCJ for multiple offences of dishonestly obtaining for himself a financial adv…
R v Pont
[2000] NSWCCA 419

…r crime in view of its difficulty of detection, and in view of the fact that its impact may fall upon the wider group of investors or creditors: Pont [2000] NSWCCA 419. Particularly has this been recognised in cases involving fraud on the revenue, or on Commonwealth agencies such as those involved in the administrat…
R v Doan
[2000] NSWCCA 317 Para 1

…of imprisonment which exceed a total of five years imprisonment. How the Local Court should proceed in cases such as this is referred to in R v Doan [2000] NSWCCA 317; [2000] 50 NSWLR 115. In that case it was contended that Freeman DCJ erred in failing to take into account the circumstance that a co-offender was de…
R v Chan
[2000] NSWCCA 345 Para 1

…I turn, then, to the case law to which I have been referred. The first case was R v Chan [2000] NSWCCA 345. That was an application for leave to appeal against sentences imposed by Howie DCJ, as his Honour then was. The offender had pleaded guilty in the Local Court to 27 counts of obtaining money by deception, each…
R v Houghton
[2000] NSWCCA 62 Para 18

…See also: R v El Rashid (unreported, NSW CCA, 7 April 1995); R v Houghton [2000] NSWCCA 62 per Barr J at [18]; R v Smith (2000) 114 A Crim R 8 per Dunford J at [20] -[22].…
R v Petrovic
[1998] VSCA 95 Para 1

…racter is often a cloak beneath which acts of fraud are often concealed. This was identified by the Victorian Court of Appeal in The Queen v Petrovic [1998] VSCA 95:…
McDonald v R
[1994] FCA 956

…g traumatic abuse'. Added to this is the fact that the sentences imposed by his Honour will be the applicant's first time in custody. In R v McDonald [1994] FCA 956; (1994) 71 A Crim R 370, in the context of the gaol sentence imposed in relation to fraud offences, Burchett and Higgins JJ observed at 379 '[in] a c…
[1981] NSWCCA 26
[1981] NSWCCA 26 Para 1

…onment more burdensome for offenders, including considerations pertaining to an offender's health. Those principles are stated in R v Vachalec [1981] 1 NSWLR 351. They include but are not limited to factors such as the need for medical treatment, hardship of imprisonment and the likelihood of an offender's rea…

Legislation cited in this decision · 2

Crimes Act 1900 (ACT)
178BA 2 mentions
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	R v Johnson [2014] NSWDC 91
Hearing dates:	18 June 2014; 27 June 2014
Decision date:	27 June 2014
Before:	Neilson J
Decision:	Appeal allowed. Local Court sentences set aside. Aggregate sentence of imprisonment for 3 years 3 months imposed comprising a non-parole period of 1 year 11 months and a balance of 1 year 4 months.
Catchwords:	Offender pleaded guilty to four principal offences, two contrary to Crimes Act 1900 s 178BA and two contrary to s 178BB - Offender also asked the Court to take into account two further offences under s 178BB on Forms 1 - Total monetary benefit to offender in the order of $0.5 million - No moneys repaid - Limited remorse - Prior good character - Personal circumstances included a severe mental illness arising after the offending conduct (between 2008 and 2009) - Alleged delay in prosecution - Local Court imposed a sentence of 18 months Home Detention with a non-parole period of 11 months in respect of each offence, wholly concurrent - Crown appeal against leniency - Offences objectively grave - significance of offender's mental illness
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Marks v R [2009] NSWCCA 24 Mitchell v R [2006] NSWCCA 72 R v Chan [2000] NSWCCA 345 R v Doan [2000] 317; [2000] 50 NSWLR 115 R v Farlow [2001] NSWCCA 348 R v Hawker [2001] NSWCCA 148 R v Smith (1987) 27 A Crim R 315 R v Tripodina [2001] NSWCCA 136 R v Vachalec [1981] 1 NSWLR 351
Category:	Principal judgment
Parties:	Crown (Appellant) David Johnson (Respondent)
Representation:	Mr Foord (Respondent) Mr Wright (solicitor) (Appellant) Solicitor for Director of Public Prosecutions (Appellant) Garland Hawthorn & Brahe (Respondent)
File Number(s):	2012/369171
Publication restriction:	No
Decision under appeal	Date of Decision: 2014-02-20 00:00:00 Before: Magistrate O'Brien