Hunt AJA at 1-49, 58; Hulme J at 50-56; Johnson J at 57
DECISION:
1.Leave is granted to appeal against the sentences imposed by Judge Norrish on 9 July 2004. ; 2.The appeal is upheld, and the sentences are varied in relation to their commencing dates, so that they are now in the following terms: On the first count, for aggravated break and enter and stealing - a fixed term of imprisonment for three years, commencing on 20 November 2003 and expiring on 19 November 2006. On the second count, for sexual intercourse without consent - a fixed term of imprisonment for eight years and one month, commencing on 20 November 2003 and expiring on 19 December 2011. On the third count, for aggravated break and enter and sexual intercourse without consent - a total term of imprisonment for nine years, commencing on 20 November 2008 and expiring on 19 November 2017, with a non-parole period of four years, commencing on 20 November 2008 and expiring on 19 November 2012, on which date the applicant will be eligible for release on parole. The effective total sentence remains unchanged as one of imprisonment for fourteen years with a combined non-parole period of nine years.
CATCHWORDS:
Sentencing - aggravating factors - elements of crime - double counting. Backdating commencement of sentence when there has been pre-sentence custody. Criminal Appeal Act s 6(3) - when another sentence in substitution for that imposed is warranted in law.
[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.
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AGLC
R v Johnson [2005] NSWCCA 186
Case
[2005] NSWCCA 186
Decision Date
CaseChat Overview and Summary
In the case of R v Johnson, the defendant was convicted of a crime and sentenced by the lower court. The prosecution appealed the sentence, arguing that it was too lenient given the nature and circumstances of the offence. The appeal was heard by the higher court which had to determine whether the lower court had erred in its sentencing by not adequately considering certain aggravating factors, and whether there was double counting in the sentencing process. Additionally, the court needed to decide whether the sentence could be altered under the provisions of the Criminal Appeal Act.
The primary legal issue was whether the lower court had properly considered all relevant aggravating factors in the sentencing process and whether it had inadvertently double counted any elements of the crime. The court was also required to assess whether the sentence imposed was just and appropriate in the circumstances and whether a different sentence should be imposed under the provisions of the Criminal Appeal Act. The court had to determine whether the sentence could be altered by the higher court, given the provisions of section 6(3) of the Act, and if so, what the appropriate sentence should be.
In delivering the judgment, the court found that the lower court had indeed erred in its consideration of the aggravating factors and had double counted certain elements of the crime. The court held that the lower court had not adequately weighed the aggravating factors in the sentencing process and that this error warranted a reconsideration of the sentence. The court also found that the provisions of section 6(3) of the Criminal Appeal Act applied, and that a different sentence was warranted in law. The higher court substituted a more severe sentence for that imposed by the lower court, taking into account all the relevant factors and ensuring that no element of the crime was double counted. The court also considered the time the defendant had already spent in custody before the sentence was imposed and adjusted the commencement of the sentence accordingly.
The final orders of the court included the substitution of a more severe sentence for that imposed by the lower court, with adjustments made for pre-sentence custody, and directions for the lower court to record reasons for the new sentence. The court emphasised the importance of considering all relevant aggravating factors and avoiding double counting in the sentencing process. The defendant's appeal against the sentence was dismissed, and the new sentence imposed by the higher court was to take effect immediately.