Leave to appeal granted; Appeal allowed; Sentence imposed in the Supreme Court quashed; In lieu thereof sentence the applicant to a term of nine years imprisonment to date from 18 May 2000 and to expire on 17 May 2009. Specify a non-parole period of six years and nine months. The first date upon which the applicant will be eligible for consideration of release on parole is 17 February 2007
2 BELL J: On 22 October 2001 Bryan Steven Johnson (the applicant) was arraigned before Acting Justice Davidson (the Judge) and a jury on an indictment that charged him with the murder of Ronald Alexander Ferguson on 11 May 2000 at Glossodia. He entered a plea of not guilty and stood his trial. On 5 November 2001 the jury returned a verdict acquitting him of murder but convicting him of manslaughter. He seeks leave to appeal against the severity of the sentence imposed on him for this offence.
3 On 13 December 2001 the applicant was sentenced to a term of imprisonment for ten years to date from 18 May 2000 and to expire on 17 May 2010. A non-parole period of seven years and six months was specified.
4 At trial the applicant acknowledged that it was his act that caused the death of the deceased. His defence to the charge of murder was that the Crown had failed to negative self-defence and, in the alternative, that it had failed to exclude that he was acting under provocation.
5 The proceedings were stood over to 13 December 2001 for sentence. On that date a number of reports were tendered and counsel made submissions on sentence. The Judge proceeded to pass sentence that day. The transcript of his Honour’s ex tempore reasons contained in the appeal papers appears to be an uncorrected draft. I refer to this in the light of certain of the submissions…
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 [2003] NSWCCA 129
Case
[2003] NSWCCA 129
Decision Date
CaseChat Overview and Summary
Regina v Bryan Steven Johnson was an appeal against the severity of the sentence imposed on the applicant, Bryan Steven Johnson, following his conviction for manslaughter. The case was heard by Giles JA, Bell J, and Carruthers AJ. The primary legal issues in the appeal were whether the trial judge had sufficiently considered the history of sexual abuse, the applicant's offer to plead guilty to manslaughter, and whether the sentence imposed was manifestly excessive. The court found that while the trial judge had considered the history of sexual abuse, the sentence should have been discounted to reflect the applicant's offer to plead guilty to manslaughter. The court also found that the sentence imposed was manifestly excessive and re-sentenced the applicant to a term of nine years imprisonment with a non-parole period of six years and nine months. The final orders of the court were to grant leave to appeal, allow the appeal, quash the sentence imposed in the Supreme Court, and impose a new sentence of nine years imprisonment with a non-parole period of six years and nine months.