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R v Johnson

R v Johnson

Case [2007] QCA 249 3 August 2007

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Johnson [2007] QCA 249

PARTIES:

R
v
JOHNSON, Eva Rose

(applicant)

FILE NO/S:

CA No 94 of 2007

DC No 135 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

3 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2007

JUDGES:

Williams and Jerrard JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to arson of dwelling house – where applicant sentenced to four years imprisonment – where applicant eligible for parole after serving 15 months imprisonment – where plea was a late plea – whether too much weight given to pecuniary value of the property damage caused by the fire – whether sentence manifestly excessive

R v Ball[2001] QCA 201; CA No 32 of 2001, 28 May 2001, distinguished
R v Barling [1999] QCA 16; CA No 304 of 1998, 5 February 1999, considered
R v Collins [2003] QCA 154; CA No 23 of 2003, 9 April 2003, distinguished
R v Cramond [1999] QCA 11; CA No 411 of 1998, 4 February 1999, considered
R v Henderson [1993] QCA 336, CA No 198 of 1991, 16 August 1993, considered
R v Johnson[2005] QCA 265; CA No 127 of 2005, 29 July 2005, distinguished
R v Matheson; ex parte A-G[1997] QCA 410; CA No 340 of 1997, 14 November 1997, considered
R v Sharkey [1994] QCA 121; CA No 28 of 1994, 29 March 1994, considered
R v Weyers [2001] QCA 311; CA No 52 of 2001, 2 August 2001, considered
R v Zuvela[1995] QCA 612; CA No 393 of 1995, 23 November 1995, considered

COUNSEL:

A W Moynihan SC for the applicant
D R MacKenzie for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

: WILLIAMS JAThe circumstances giving rise to this application for leave to appeal against sentence are set out in the reasons for judgment of Mullins J which I have had the advantage of reading. I will not repeat what is stated therein.

Senior counsel for the applicant relied heavily on the observation by Jerrard JA in R v Johnson [2005] QCA 265 that "where there is no question of fraud and where the safety of others is not a consideration, the appropriate head sentence for the offence of arson is about three years." That observation should, in my view, be restricted to the precise circumstances of the case his Honour was then considering. It is significant that this Court in Johnson upheld a sentence…

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 [2007] QCA 249
Case: [2007] QCA 249
Decision Date: 3 August 2007

CaseChat Overview and Summary

The case of R v Johnson involved the applicant, who had pleaded guilty to the crime of arson of a dwelling house. The applicant was sentenced to four years imprisonment, with the possibility of parole after serving 15 months. The applicant sought to appeal against the sentence, arguing that too much weight had been given to the pecuniary value of the property damage caused by the fire and that the sentence was manifestly excessive. The court was required to determine whether the sentence imposed was appropriate and whether the applicant had demonstrated grounds for appeal.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the trial judge had given undue weight to the pecuniary value of the property damage caused by the fire. The applicant argued that the trial judge had placed too much emphasis on the financial cost of the damage, which was not a primary consideration in sentencing for arson. The court had to consider whether the sentence was disproportionate to the crime and whether it could be considered manifestly excessive.

In dismissing the application for leave to appeal, the court found that the sentence imposed was not manifestly excessive. The court noted that the trial judge had considered a range of factors in imposing the sentence, including the seriousness of the offence, the need for deterrence, and the need for retribution. The court also found that the trial judge had not given undue weight to the pecuniary value of the property damage caused by the fire. The court held that the sentence imposed was appropriate and that the applicant had not demonstrated grounds for appeal.

The final orders of the court were that the application for leave to appeal against the sentence was dismissed. The applicant was not granted permission to appeal against the sentence imposed. The court found that the sentence was not manifestly excessive and that the trial judge had considered a range of relevant factors in imposing the sentence.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

Full text does not contain this section.

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.

Citations

AGLC Citation

R v Johnson [2007] QCA 249

Most Recent Citation

R v Smith [2007] QCA 253

Cases citing this decision · 9 of 9 shown

R v Hartas
[2021] QCA 178 Para 12

…isions referred to by the learned sentencing judge,[22] it was correct to identify that a sentence of up to four years was possible. [22] R v Johnson [2007] QCA 249, R v Francis [2014] QCA 258, R v Griffiths [2009] QCA 264 and R v Cramond [1999] QCA 11.…
R v Robertson
[2017] QCA 164

…nson [2005] QCA 265, considered R v Johnson (2007) 173 A Crim R 94; [2007] QCA 249, cited R v Kitson [2008] QCA 86, cited R v Leigh [1996] QCA 561, considered R v Matheson [2006] QCA 150, cited R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, cited R v Porter [2014] QCA 14, considered R v Rhode [2001] QCA…
R v Francis
[2014] QCA 258 Para 2

…R v Matheson ;[8] R v Johnson ;[9] R v Gwilliams ;[10] R v Silasack ;[11] R v NL ;[12] and R v Porter .[13] [7][2005] QCA 265. [8][2006] QCA 150. [9][2007] QCA 249. [10][2008] QCA 40. [11][2009] QCA 88. [12][2011] QCA 113. [13][2014] QCA 14.…
R v Raeyers
[2014] ACTSC 134 Para 1

…Heavier sentences are particularly required where there is a danger to individuals in a dwelling or extremely heavy property damage. See R v Johnson [2007] QCA 249 at [21]-[27].…
R v Porter
[2014] QCA 14 Para 1

…ud and where the safety of others is not a consideration, the appropriate head sentence for the offence of arson is about three years”.[14] [12][2007] QCA 249 (“ Johnson 2007 ”). [13][2005] QCA 265 (“ Johnson 2005 ”). [14] Ibid , p 9.…
R v Nl
[2011] QCA 113 Para 1

…where an offender importunately pursues a former partner for a protracted period. [6]See R v Ball [2001] QCA 201; R v Johnson (2007) 173 A Crim R 94; [2007] QCA 249; and R v Johnson [2005] QCA 265.…
R v Silasack
[2009] QCA 88 Para 1

…Ball [2001] QCA 201 (five years imprisonment suspended after 16 months for an operational period of five years); R v Johnson (2007) 173 A Crim R 94, [2007] QCA 249 (four years imprisonment with parole eligibility after 15 months); and R v Johnson [2005] QCA 265 (four years imprisonment with a recommendation of p…
R v Gwilliams
[2008] QCA 40

…history - where sentence imposed was not outside the proper exercise of sentencing discretion MFA v The Queen (2002) 213 CLR 606 , cited R v Johnson [2007] QCA 249, cited COUNSEL: The applicant/appellant appeared on his own behalf M J Copley for the respondent SOLICITORS: The applicant/appellant appeared on his…
R v. Smith
[2007] QCA 253 Para 1

…This Court has recently considered the issue of sentencing for the offence of arson in R v Johnson [2007] QCA 249 and a number of relevant authorities are discussed therein. Bearing in mind that this matter went to trial, there was no evidence of remorse, and considerable damage was occasioned, a head sentence of…

View all 9 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Johnson
[2005] QCA 265 Para 1

…Senior counsel for the applicant relied heavily on the observation by Jerrard JA in R v Johnson [2005] QCA 265 that "where there is no question of fraud and where the safety of others is not a consideration, the appropriate head sentence for the offence of arson is about three years." That observation should, in…
R v Collins
[2003] QCA 154 Para 1

…s matter I have read the reasons for judgment of Mullins J, and agree with those and with the order proposed by Her Honour. I add that in R v Collins [2003] QCA 154 (a matter involving the arson of a motor vehicle) I quoted from the judgment of Mackenzie J in R v Cramond [1999] QCA 11, CA No 411 of 1998, where Hi…
R v Weyers
[2001] QCA 311 Para 1

…The sentence of four years was reduced in Cramond to one of three years, similar to that imposed in R v Weyers [2001] QCA 311, CA No 52 of 2001, a matter of the arson of a bus, and to the three years imposed in Barling [1999] QCA 16, CA No 304 of 1998, the arson of a caravan causing $10,000 worth of damage. I add…
R v Ball
[2001] QCA 201 Para 1

…e respondent submits that the extent or nature of the damage caused by the fire may be such a relevant factor: R v Zuvela [1995] QCA 612 and R v Ball [2001] QCA 201.…
R v Barling
[1999] QCA 16 Para 1

…rs, similar to that imposed in R v Weyers [2001] QCA 311, CA No 52 of 2001, a matter of the arson of a bus, and to the three years imposed in Barling [1999] QCA 16, CA No 304 of 1998, the arson of a caravan causing $10,000 worth of damage. I added later in R v Collins that:…
R v Cramond
[1999] QCA 11 Para 1

…. I add that in R v Collins [2003] QCA 154 (a matter involving the arson of a motor vehicle) I quoted from the judgment of Mackenzie J in R v Cramond [1999] QCA 11, CA No 411 of 1998, where His Honour wrote:…
R v Matheson; ex parte
[1997] QCA 410 Para 1

…rson. I agree with all that is said in those reasons, but would add a reference to some observations made in this Court in R v Matheson; ex parte A-G [1997] QCA 410. There the offender was convicted after a trial of numerous offences including one of arson. He was also dealt with for a variety of other serious cr…
R v Zuvela
[1995] QCA 612 Para 1

…ult in a higher sentence. The respondent submits that the extent or nature of the damage caused by the fire may be such a relevant factor: R v Zuvela [1995] QCA 612 and R v Ball [2001] QCA 201.…
R v Henderson
[1993] QCA 336 Para 1

…d to two decisions of the Court of Appeal as suggesting a head sentence of between three and four years: R v Johnson [2005] QCA 265 and R v Henderson [1993] QCA 336. The sentencing Judge referred to the “extremely heavy property damage” caused to the complainant’s property as taking the case outside the lower cat…
QCA 336 and then repeated in R v Sharkey
[1994] QCA 121 Para 1

…s of cases, however, where the extent of the damage caused by the fire was not a significant factor: Henderson ($20,000 damage to house); R v Sharkey [1994] QCA 121; R v Barling [1999] QCA 16 (caravan and contents valued at $10,000); R v Cramond [1999] QCA 11 (motor vehicle valued at $16,000); R v Weyers [2001] Q…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Johnson [2007] QCA 249
PARTIES:	R v JOHNSON, Eva Rose (applicant)
FILE NO/S:	CA No 94 of 2007 DC No 135 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	3 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	23 July 2007
JUDGES:	Williams and Jerrard JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY – where applicant pleaded guilty to arson of dwelling house – where applicant sentenced to four years imprisonment – where applicant eligible for parole after serving 15 months imprisonment – where plea was a late plea – whether too much weight given to pecuniary value of the property damage caused by the fire – whether sentence manifestly excessive R v Ball[2001] QCA 201; CA No 32 of 2001, 28 May 2001, distinguished R v Barling [1999] QCA 16; CA No 304 of 1998, 5 February 1999, considered R v Collins [2003] QCA 154; CA No 23 of 2003, 9 April 2003, distinguished R v Cramond [1999] QCA 11; CA No 411 of 1998, 4 February 1999, considered R v Henderson [1993] QCA 336, CA No 198 of 1991, 16 August 1993, considered R v Johnson[2005] QCA 265; CA No 127 of 2005, 29 July 2005, distinguished R v Matheson; ex parte A-G[1997] QCA 410; CA No 340 of 1997, 14 November 1997, considered R v Sharkey [1994] QCA 121; CA No 28 of 1994, 29 March 1994, considered R v Weyers [2001] QCA 311; CA No 52 of 2001, 2 August 2001, considered R v Zuvela[1995] QCA 612; CA No 393 of 1995, 23 November 1995, considered
COUNSEL:	A W Moynihan SC for the applicant D R MacKenzie for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent