PARTIES: Crown - Respondent Applicant - Raymond Johnson
JUDGMENT OF: Simpson J Kirby J Bell J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 02/11/0727
LOWER COURT JUDICIAL OFFICER: Blackmore DCJ
COUNSEL: Crown - E Wilkins Applicant - P Boulten SC
SOLICITORS: Crown - S Kavanagh Applicant - C Watson
CATCHWORDS: application for leave to appeal against severity of sentence resist officer in execution of duty possess housebreaking implements possess unlicensed firearms possess prohibited handgun subjective circumstances antecedent criminal record correction of commencement dates of sentences
DECISION: i. Leave to appeal against each sentence granted ii. Appeal against each sentence allowed in the following respects: count 1: sentence quashed; in lieu thereof, the applicant be sentenced to imprisonment for a fixed term of fifteen months, commencing on 31 July 2002 counts 2 - 5: all sentences to be adjusted so that they commence, respectively, on count 2: 31 July 2002 count 3: 31 July 2003 count 4: 31 July 2003 count 5: 31 March 2004 Otherwise, appeals against sentence dismissed.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
60435/03
SIMPSON J KIRBY J BELL J
Tuesday 13 April 2004
REGINA v Raymond JOHNSON
Judgment
THE COURT: This is an application for leave to appeal against the severity of sentences imposed upon the applicant by Judge Blackmore in the District Court on 24 April 2003, following the applicant’s pleas of guilty to a series of charges on an indictment. The charges and the sentences imposed were as follows:
count one: resist officer in execution of duty: imprisonment for two years with a non-parole period of eighteen months commencing on 30 August 2002;
count two: possess housebreaking implements: imprisonment for three years with a non-parole period of two years and three months commencing on 30 August 2002;
count three: possess unlicensed firearm (Parabellum semi-automatic 9mm pistol): imprisonment for four years with a non-parole period of three years commencing on 30 August 2003;
count four: possess unlicensed firearm (La Franchi SPA Brecia 12 gauge shotgun): imprisonment for a fixed term of two years commencing on 30 August 2003;
count five: possess prohibited handgun (“Thunderblaster”): imprisonment for five years with a non-parole period of two years commencing on 30 August 2004.
In relation to the last count the sentencing judge was asked to, and did, take into account, pursuant to Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999, two further offences listed on a Form 1. These were an offence of having in custody goods that may reasonably be suspected of having been stolen or otherwise unlawfully obtained, and having custody of a knife in a public place.
The maximum penalty applicable to count one is imprisonment for five years; for count two, imprisonment for seven years;…
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.
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Details
AGLC
R v Johnson [2004] NSWCCA 76
Case
[2004] NSWCCA 76
Decision Date
CaseChat Overview and Summary
The case of R v Johnson involved an application for leave to appeal against the severity of the sentence imposed on the applicant, who was convicted of resisting an officer in the execution of their duty, possessing housebreaking implements, possessing unlicensed firearms, and possessing a prohibited handgun. The applicant argued that the sentencing judge erred in considering his antecedent criminal record as a significant aggravating factor, resulting in a harsher sentence than warranted. The applicant further contended that the judge misapplied the principle of rehabilitation by not considering the gap in his criminal record as a basis for leniency. The court was required to determine whether the sentencing judge erred in principle by imposing a harsh sentence based on the applicant's criminal history and whether the judge appropriately considered the potential for rehabilitation.
The court found that the applicant's significant gap in criminal activity, whether 10-1/2 years or somewhat longer, did not warrant leniency or suggest a lower likelihood of reoffending. The nature of the offences committed before and after the gap amply justified the sentencing judge's view that leniency was unwarranted. The court also concluded that the sentencing judge did not err in principle by considering the applicant's criminal history as a serious aggravating factor. The phrases used by the judge did not suggest that the sentence was imposed more harshly because of the applicant's past criminal conduct. Instead, the judge was appropriately considering the potential for rehabilitation and the likelihood of reoffending based on the applicant's extensive criminal record.
As a result, the court dismissed the application for leave to appeal against the severity of the sentence. The overall length of the sentences imposed was imprisonment for seven years with a non-parole period of four years, with a commencement date of 30 August 2002. The sentences in relation to counts three and four were made partially concurrent with those imposed in relation to counts one and two, and the sentence imposed in relation to count five was made partially concurrent with those imposed in relation to counts three and four.
Orders
Orders of the court
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Background
Background to the litigation
It will be observed that the commencement dates of the sentences were, to some extent, staggered, the sentences in relation to counts three and four made partially concurrent with those imposed in relation to counts one and two, and the sentence imposed in relation to count five made partially concurrent with those imposed in relation to counts three and four. The overall length of the sentences imposed is imprisonment for seven years with a non-parole period of four years, with a commencement date of 30 August 2002.facts All offences were committed on 1 February 2001. At 8.55 pm on that day in Cleveland Street Sydney, officers of the State Protection Group of the NSW Police Service stopped a four wheel drive vehicle in which the applicant was a passenger. A bench warrant for the applicant’s arrest was current, the applicant having failed to appear in the District Court on 26 November 1997 in relation to a number of charges of breaking, entering and stealing. The arresting officers instructed the applicant to alight from the vehicle and put his hands in the air. He was in the process of leaving the vehicle, without his right hand in the air. Police repeated the instruction more than once. The applicant was arrested. In the statement of facts put before the sentencing judge it was asserted that he was “forcibly arrested with the accused resisting”. The nature and detail of the resistance was not specified. This was the conduct which gave rise to the first count on the indictment. The applicant was searched. He was in possession of a lock picking gun and other lock picking devices. This gave rise to the offence the subject of the second count on the indictment. He was also in possession of a stun gun, which is a prohibited weapon and is the subject of count five. He was also in possession of a NSW Police identification badge, signifying the rank of inspector, and a serrated blade knife. It was possession of these items that gave rise to the two offences on the Form 1. The applicant was also in possession of other items of a suspicious character, but as these did not ultimately result in any specific charges, they should be disregarded. Later in the evening police executed a search warrant at the home of the applicant’s son, where the applicant was temporarily residing. In the bedroom occupied by the applicant they found the nine-millimetre pistol (the subject of count three) and the shotgun (the subject of count four). Also in the premises and located on the execution of the search warrant was a large variety of firearms, ammunition and associated paraphernalia. However, again, these were not the subject of any specific charge and play no part in the present application. There was plainly some level of struggle on the applicant’s arrest, as a result of which he was taken to St Vincent’s Hospital. Records of the Emergency Department of that hospital were in evidence. They may reasonably be described as terse. Under the heading “Presenting Problem” the following appears:“A/A in police custody. Kick to face, lac to r temporal region, ? bleeding from both ears, hard collar instu. Denies loc.”
Evidence
Evidence Before The Court
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Decision
Reasons for decision
SIMPSON J
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Ratio Decidendi
Legal Principle Established
Established by:
SIMPSON J
Having adverted to Mr Johnson's arrest on 1 February 2001 on the charges which are the subject of this appeal, his Honour then said this: (R/S 9)"What can be said, the offender's criminal history does not entitle him to any positive consideration on sentence. Further, he has committed, yet again, a series of offences for which he has previously been convicted. In particular he has been convicted for another offence of possession of the house breaking implement. He has been convicted of this offence on 5 occasions and imprisoned before for this offence on two separate occasions and confined to an institution for the same offence when a juvenile.Such a history brings into play the potential of (the) maximum penalty to be applied. He continues to disobey the law with regard to this offence and other offences, it is a very serious aggravating feature with regard to this sentence." (emphasis added) These remarks, according to the applicant, contain three "errors of principle": Before dealing with the first and second suggested errors, reference should be made to a factual difference between the applicant and the Crown. Counsel for the applicant, in written submissions, repeated a submission made to the sentencing Judge that Mr Johnson had not been convicted for a period of 17 years (between 1981, when he was sentenced for various offences, and 1997, when he failed to answer his bail for offences committed in 1995). The Crown suggested, and his Honour found, that the period extended from Mr Johnson's release in 1984 to the time at which he again offended, that is 1995 (a period of 10-1/2 years). In the course of argument Counsel for Mr Johnson moderated his position, suggesting that custodial records established that the applicant was in fact released in October 1982, not September 1984. Dealing with the first suggested "error", on any view there was a significant gap in the criminal record of Mr Johnson, whether 10 -1/2 years or somewhat longer. A gap in convictions may suggest that a return to crime is less likely (Ryan v The Queen (2001) 206 CLR 207 at 288). It may provide a basis for inferring that there are reasonable prospects of rehabilitation. Depending on the circumstances, leniency may be warranted. However, Mr Johnson's criminal record, even taking account of the gap, could hardly inspire confidence concerning his rehabilitation or the unlikelihood of his returning to crime. Leniency was plainly unwarranted, as his Honour said. The nature of the offences committed before 1984 and after 1995 amply justified that view. There was no error of principle in respect of the first matter. The second and third suggested errors criticise phrases used by his Honour which do require interpretation in order to understand what was being said. What was meant in saying that "such a history brings into play the potential of (the) maximum penalty to be applied" and that such history was "a very serious aggravating feature"? Can it be inferred, as the applicant contends, that his Honour sentenced more harshly because of Mr Johnson's criminal past?