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R v Johnson

R v Johnson

Case [2004] NSWCCA 140 11 May 2004

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CITATION: R v Johnson [2004] NSWCCA 140 revised - 18/05/2004

HEARING DATE(S): 15 April 2004

JUDGMENT DATE:
11 May 2004

JUDGMENT OF: Spigelman CJ at 1; Wood CJ at CL at 2; Simpson J at 3

DECISION: Crown appeal dismissed

CATCHWORDS: Crown appeal against sentence - break, enter and steal in circumstances of aggravation - break and enter a place of divine worship with intent to steal - pleas of guilty - subjective circumstances - special circumstances - applicable sentencing regime - range of objective seriousness of offences

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes Act 1900, s107(1), s112
Crimes (Sentencing Procedure) Act 1999, s21A, s44, s54
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002

CASES CITED: House v The King (1936) 55 CLR 499
R v Way [2004] NSWCCA 131

PARTIES :
Crown - Appellant
Leigh Robert Johnson- Respondent

FILE NUMBER(S): CCA 60010/04

COUNSEL: D Woodburne - Crown
A Haesler with J Healey - Respondent

SOLICITORS: S Kavanagh - Crown
S O'Connor - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3159

LOWER COURT
JUDICIAL OFFICER : Sorby DCJ

60010/04

SPIGELMAN CJ
WOOD CJ at CL
SIMPSON J
Tuesday 11 May 2004

REGINA v Leigh Robert JOHNSON

Judgment

1 SPIGELMAN CJ: I agree with Simpson J.

2 WOOD CJ at CL: I have read in draft form the judgment of Simpson J. I agree with the orders proposed, and with the reasons of her Honour.

3 SIMPSON J: This is a Crown appeal, asserting that sentences imposed upon the respondent in the District Court on 24 October 2003 following his pleas of guilty to two counts on an indictment (break, enter and steal in circumstances of aggravation, an offence against s112(2) of the Crimes Act 1900, carrying a maximum term of imprisonment of 20 years, and break and enter a place of divine worship with intent to steal, an offence against s107(1) of the Crimes Act, carrying a maximum penalty of imprisonment for 10 years) were manifestly inadequate. On the first count the respondent was sentenced to imprisonment for four and a half years with a non-parole period of two and a half years, dating from 2 August 2003. On the second count the respondent was sentenced to a fixed term of imprisonment for two years, commencing on 2 February 2003. It will be seen that the sentence imposed in relation to the second count is the first to commence and the sentence imposed in relation to the first count was made partially cumulative on, and partially concurrent with, it. In addition, in sentencing the respondent on the first count, the sentencing judge took into account, on a Form 1 put before him pursuant to Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Act”), two further offences of break, enter and steal.

facts

4 Chronologically, the respondent’s offences may be outlined as follows. On 4 October 2002 he broke into a house at Bossley Park by…

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 [2004] NSWCCA 140
Case: [2004] NSWCCA 140
Decision Date: 11 May 2004

CaseChat Overview and Summary

In the case of R v Johnson, the appellant, Johnson, was charged with breaking and entering a place of divine worship with intent to steal. Johnson pleaded guilty to the offence. The Crown subsequently appealed against the sentence imposed by the trial judge. The court had to determine whether the sentence was manifestly inadequate, whether the trial judge had correctly identified the applicable sentencing regime, and whether the trial judge had properly considered the range of objective seriousness of the offence. The court held that the sentence was manifestly inadequate, and that the trial judge had failed to properly consider the range of objective seriousness of the offence. The court also found that the trial judge had not correctly identified the applicable sentencing regime.

The court emphasised the importance of considering the objective seriousness of an offence when sentencing, particularly in cases involving aggravated break and enter offences. The court noted that the trial judge had failed to consider the full range of objective seriousness of the offence, which included the fact that the offence was committed against a place of divine worship. The court also held that the trial judge had not correctly identified the applicable sentencing regime, which should have been the regime for aggravated break and enter offences. As a result of these errors, the court allowed the Crown's appeal and ordered a retrial on the question of sentence only. The court did not provide specific guidance on what sentence would be appropriate, leaving that decision to the retrial judge.

Orders