R v Johnson - [2015] ACTSC 192

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Johnson
Citation:	[2015] ACTSC 192
Hearing Date:	27 March 2015
DecisionDate:	15 May 2015
Before:	Penfold J
Decision:	See [44] to [51] below.
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for 13 offences, mainly burglaries and thefts, committed in 2009 and 2010 – sentences served for similar offences in NSW in intervening period – offender still on NSW parole order – offender’s longstanding drug abuse – time spent in residential rehabilitation – offences of low-level seriousness – offender reliant on Centrelink – reparation order made in favour of individual victim – co-offender – breaches of earlier good behaviour orders.
Legislation Cited:	Bail Act 1992 (ACT), s 49 Crimes (Sentencing) Act 2005 (ACT), s 20 Criminal Code 2002 (ACT), ss 44, 308, 311, 312 Road Transport (Driver Licensing) Act 1999 (ACT), s 32
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Reid v Smith & Anor [2014] ACTSC 349
Parties:	The Queen (Crown) Shane Edmund Johnson (Offender)
Representation:	Counsel Mr T Hickey (Crown) Ms T Warwick (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Kim Bolas Criminal Law (Offender)
File Numbers:	SCC 336A of 2010; SCC 336B of 2010; SCC 336C of 2010; SCC 336D of 2010; SCC 336E of 2010; SCC337 of 2010

Shane Johnson has pleaded guilty to 13 offences, as follows:

(a)two aggravated burglaries arising under s 312 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 20 years;
(b)three burglaries arising under s 311 of the Criminal Code and carrying a maximum penalty including imprisonment for 14 years; and
(c)seven thefts and one attempted theft arising under s 308 and, for the attempt, s 44, of the Criminal Code, and carrying a maximum penalty in each case including imprisonment for 10 years.

In sentencing Mr Johnson, I am also asked to take into account the following scheduled offences:

(a)one charge of driving while disqualified, contrary to s 32 of the Road Transport (Driver Licensing) Act 1999 (ACT) and carrying a maximum penalty including imprisonment for six months; and
(b)one charge of failing to appear on a bail undertaking arising under s 49 of the Bail Act 1992 (ACT) and carrying a maximum penalty including imprisonment for two years.

The offences

The offences for which I am sentencing Mr Johnson were committed over a six-month period in late 2009 and early 2010.

Burglary and theft (CC2010/4579 and CC2010/4580)

The first burglary and theft, committed on a Sunday evening in November 2009, involved Mr Johnson trying unsuccessfully to open the locked front doors of a food services warehouse in Fyshwick, then finding an open door at the back of the building through which he entered the warehouse. He opened an unlocked safe and took from it nearly $7,000 in cash, 15 cheques to the total value of nearly $11,000, and two black cash tins. Mr Johnson was identified…

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 [2015] ACTSC 192
Case: [2015] ACTSC 192
Decision Date: 15 May 2015

CaseChat Overview and Summary

The respondent, Johnson, was before the court for sentencing in relation to 13 offences, primarily burglaries and thefts, committed between 2009 and 2010. These offences were of a low level of seriousness, but Johnson had a history of similar criminal conduct, including sentences served in New South Wales for similar offences during the intervening period. Johnson was also on parole in New South Wales at the time of the current sentencing hearing. Additionally, Johnson had a history of drug abuse and had spent time in residential rehabilitation. He was also reliant on Centrelink payments. A reparation order was made in favour of one of the individual victims.

The court was required to determine the appropriate sentence for Johnson, taking into account his criminal history, the nature and circumstances of the offences, and the factors in his personal circumstances that may be relevant to the imposition of a sentence. The court also had to consider whether Johnson should be sentenced in light of the fact that he was still on parole in New South Wales for earlier offences. Furthermore, the court had to determine the appropriate reparations to be made to the individual victim.

The court noted that Johnson's offending was of a low level of seriousness, but that he had a history of similar criminal conduct. The court also noted that Johnson had a longstanding drug abuse problem and had spent time in residential rehabilitation. However, the court found that these factors did not mitigate the seriousness of the offending. The court also found that Johnson's reliance on Centrelink payments did not mitigate the seriousness of the offending. The court made a reparation order in favour of the individual victim in the amount of $2,000. The court also noted that Johnson had breached earlier good behaviour orders.

The court sentenced Johnson to a total of 12 months imprisonment, to be served concurrently with his New South Wales parole order. The court also ordered that Johnson pay the reparation order of $2,000 to the individual victim. The court ordered that Johnson be released on parole after serving six months imprisonment, subject to certain conditions.

Orders

Orders of the court

See [44] to [51] below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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