R v Johnson - [2014] QCA 13

SUPREME COURT OF QUEENSLAND

CITATION:

R v Johnson [2014] QCA 13

PARTIES:

R
v
JOHNSON, David John
(applicant)

FILE NO/S:

CA No 190 of 2013
DC No 784 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

14 February 2014

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2014

JUDGES:

Chief Justice and Fraser and Gotterson JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to ten property offences – where the applicant was sentenced to three years imprisonment for each of four burglary offences and an offence of unlawful use of motor vehicles with a circumstance of aggravation, and shorter imprisonment terms for the other offences – where those sentences are to be served concurrently, but cumulatively on an existing sentence being served due to parole breach – where the applicant had a bad criminal history, poor upbringing and drug addiction – whether the totality principle was misapplied by the sentencing judge – whether the sentence and parole eligibility date was crushing, manifestly excessive and not reflective of the mitigating circumstances

Penalties and Sentences Act 1992 (Qld), s 9(1)(c), s 9(1)(e)

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Schmidt [2013] 1 Qd R 572; [2011] QCA 133, cited
R v Weeding [2007] QCA 311, cited

COUNSEL:

The applicant appeared on his own behalf
B J Merrin for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Fraser JA. I agree that the application should be refused, for those reasons.

FRASER JA: The applicant pleaded guilty to ten property and drug related offences committed between mid-November and the end of December 2012. He was sentenced to three years imprisonment for each of four burglary offences and an offence of unlawful use of a motor vehicle with a circumstance of aggravation, and to shorter terms of imprisonment for the other offences. The sentences were ordered to be served concurrently with each other but cumulatively upon a sentence of four years imprisonment the applicant was already serving. A parole eligibility date was set on 8 December 2015, six months after the expiration of the previous sentence. The applicant has applied for leave to appeal against sentence on the ground that the head sentence is manifestly excessive.

In the burglary offences, the applicant broke into houses and stole portable items, including computers, cash and credit cards, and a car. Occupants of the houses were present when three of the burglary offences were committed. Stolen credit cards were used by the applicant in frauds or attempted frauds. The car and much of the…

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 [2014] QCA 13
Case: [2014] QCA 13
Decision Date: 14 February 2014

CaseChat Overview and Summary

The applicant, Johnson, appealed against the sentence imposed on him by the lower court, which included a total of ten property offences. The sentencing court had imposed a three-year imprisonment term for each of four burglary offences and an unlawful use of motor vehicle offence with an aggravating circumstance, with shorter imprisonment terms for the remaining offences. These sentences were to be served concurrently, but cumulatively on an existing sentence being served due to a parole breach. The applicant had a poor criminal history, upbringing and drug addiction.

The legal issues in the case were whether the sentencing judge misapplied the totality principle and whether the sentence and parole eligibility date was crushing, manifestly excessive and not reflective of the mitigating circumstances. The court had to examine whether the sentence imposed was appropriate and whether the totality principle was correctly applied.

The court found that the sentencing judge had taken into account the applicant's criminal history, poor upbringing and drug addiction, and that the sentence imposed was not manifestly excessive or inadequate. The court also found that the sentencing judge had correctly applied the totality principle, and that the parole eligibility date was not crushing. The court held that the applicant's appeal against sentence should be dismissed.

The court refused the application and upheld the sentence imposed by the lower court. The applicant's appeal against sentence was dismissed and the original sentence was affirmed.

Orders

Orders of the court

Application refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Johnson [2014] QCA 13
PARTIES:	R v JOHNSON, David John (applicant)
FILE NO/S:	CA No 190 of 2013 DC No 784 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	14 February 2014
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2014
JUDGES:	Chief Justice and Fraser and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to ten property offences – where the applicant was sentenced to three years imprisonment for each of four burglary offences and an offence of unlawful use of motor vehicles with a circumstance of aggravation, and shorter imprisonment terms for the other offences – where those sentences are to be served concurrently, but cumulatively on an existing sentence being served due to parole breach – where the applicant had a bad criminal history, poor upbringing and drug addiction – whether the totality principle was misapplied by the sentencing judge – whether the sentence and parole eligibility date was crushing, manifestly excessive and not reflective of the mitigating circumstances Penalties and Sentences Act 1992 (Qld), s 9(1)(c), s 9(1)(e) Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Schmidt [2013] 1 Qd R 572; [2011] QCA 133, cited R v Weeding [2007] QCA 311, cited
COUNSEL:	The applicant appeared on his own behalf B J Merrin for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent