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R v Johnson

R v Johnson

Case [2005] QCA 265 29 July 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Johnson [2005] QCA 265

PARTIES:

R
v
JOHNSON, Paul Richard
(applicant)

FILE NO/S:

CA No 127 of 2005
DC No 488 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

29 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2005

JUDGES:

McMurdo P, Williams and Jerrard 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 AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - PROPERTY OFFENCES - applicant convicted after plea of guilty to one count of arson - sentenced to four years imprisonment with recommendation for post-prison community based release after 12 months - applicant set fire to upstairs part of house he owned with his wife by distributing accelerant and turning on gas jets - apparent suicide attempt - Police and Fire and Rescue officers alerted by tenant in downstairs granny flat - no significant structural damage but a considerable degree of charring and smoke damage - potential danger in commission of offence to tenant in downstairs granny flat and neighbouring house - 48 years of age - no criminal history - applicant carried all resulting financial burden - whether sentence manifestly excessive

R v Barling [1999] QCA 16; CA No 304 of 1998, 5 February 1999, considered
R v Henderson [1993] QCA 336; CA No 198 of 1991, 16 August 1993, considered
R v Pike [2002] QCA 242; CA No 132 of 2002, 15 July 2002, considered
R v Sharkey [1994] QCA 121; CA No 28 of 1994, 29 March 1994, considered

COUNSEL:

S J Pearson for the applicant
M J Copley for the respondent

SOLICITORS:

MacDonnells Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: In the District Court at Cairns on 22 April 2005 the applicant was convicted on one count of arson of a dwelling on 25 April 2004. He was sentenced to four years imprisonment with a recommendation for consideration for post-prison community based release after 12 months. He contends that the sentence was manifestly excessive and that the learned primary judge gave insufficient weight to the many mitigating factors.

The case is, in many ways, a sad one. The applicant was 48 at the time of the offence and 49 at sentence. He had no previous convictions.

Police and Fire and Rescue Service officers were called to a fire at Smith Street, North Cairns on 26 April 2004 in the late morning. They located the unconscious applicant in an upstairs rear bathroom of a charming Queenslander house where the applicant had lived with his wife and children. A tenant lived in the granny flat downstairs and raised the alarm. The applicant was taken to…

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 [2005] QCA 265
Case: [2005] QCA 265
Decision Date: 29 July 2005

CaseChat Overview and Summary

The appeal before the Court was brought by the applicant, Johnson, against the sentence imposed on him by the lower court. Johnson had pleaded guilty to one count of arson, which involved setting fire to the upstairs part of a house he owned jointly with his wife. The offence occurred when Johnson distributed an accelerant and turned on gas jets, leading to a fire. Although no significant structural damage resulted, there was considerable charring and smoke damage. The police and Fire and Rescue officers were alerted by a tenant residing in a downstairs granny flat. The fire posed a potential danger to the tenant and the occupants of a neighbouring house. Johnson, who was 48 years old at the time of the offence and had no criminal history, also bore all the financial burdens resulting from the incident. He was sentenced to four years of imprisonment, with a recommendation for post-prison community-based release after 12 months.

The legal issues in this case centred on whether the sentence imposed by the lower court was manifestly excessive. The applicant argued that the sentence was disproportionate given the circumstances of the case. The Court was required to consider the nature and seriousness of the offence, the culpability of the offender, and the circumstances in which the offence was committed. The Court also needed to determine if there were any mitigating factors that could warrant a reduction in the sentence. In assessing the sentence, the Court referred to several precedents including R v Barling, R v Henderson, R v Pike, and R v Sharkey.

In its reasoning, the Court examined the circumstances of the offence and the sentence imposed. The Court noted that while the arson caused considerable damage and posed a danger to others, there was no significant structural damage to the property. The Court also considered Johnson's age, lack of a criminal history, and the fact that he took responsibility for the financial consequences of his actions. After considering these factors, the Court found that the sentence was not manifestly excessive. The Court concluded that the sentence was appropriate in light of the circumstances and did not warrant a reduction.

The Court ultimately refused the application to reduce the sentence. The Court confirmed the original sentence of four years imprisonment, with the recommendation for post-prison community-based release after 12 months.

Orders

Orders of the court

Application refused

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

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Citations

AGLC Citation

R v Johnson [2005] QCA 265

Most Recent Citation

R v Matheson [2006] QCA 150

Cases citing this decision · 8 of 8 shown

R v Cooper
[2021] QCA 169 Para 7

…[8] R v Gwilliams ,[9] R v Silasack ,[10] R v Leigh ,[11] R v Rhode ,[12] R v Drinkwater ,[13] R v Porter ,[14] and R v Francis .[15] [8] R v Johnson [2005] QCA 265. [9] R v Gwilliams [2008] QCA 40. [10] R v Silasack [2009] QCA 88. No-one suggested Silasack was comparable in the present case. [11] R v Leigh [1996…
R v Robertson
[2017] QCA 164 Para 3

…related case of) R v Johnson [2] by limiting them to circumstances where it was also the case that the damage caused was not a significant factor. [1][2005] QCA 265. [2](2007) 173 A Crim R 94 at [8]. See also R v Porter [2014] QCA 14 at [22].…
R v Francis
[2014] QCA 258 Para 2

…sentences imposed in R v Johnson ;[7] 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 Porter
[2014] QCA 14 Para 1

…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

…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

…sentences for the applicant's offence of attempted arson was four to five years imprisonment. He referred to Jerrard JA’s statement in R v Johnson [2005] QCA 265 (adopting the similar declaration in R v Henderson [1993] QCA 336, repeated in R v Sharkey [1994] QCA 121, and restated in R v Cramond [1999] QCA 11) t…
R v Johnson
[2007] QCA 249 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 Matheson
[2006] QCA 150

…Justice Jerrard in R v Collins [2003] QCA 154, CA No 23 of 2003, 9 April 2003, at page 7 and his Honour further endorsed this approach in R v Johnson [2005] QCA 265, CA No 127 of 2005, 29 July 2005. Mr Copley referred the Court to two older conspiracy to commit arson cases of R v Scrivener , CA No 195 of 1991 and…

View all 8 citing cases →

Cases cited in this decision · 5 of 5 shown

R v Pike
[2002] QCA 242

…ng [1999] QCA 16; CA No 304 of 1998, 5 February 1999, considered R v Henderson [1993] QCA 336; CA No 198 of 1991, 16 August 1993, considered R v Pike [2002] QCA 242; CA No 132 of 2002, 15 July 2002, considered R v Sharkey [1994] QCA 121; CA No 28 of 1994, 29 March 1994, considered COUNSEL: S J Pearson for the app…
R v Barling
[1999] QCA 16

…house - 48 years of age - no criminal history - applicant carried all resulting financial burden - whether sentence manifestly excessive R v Barling [1999] QCA 16; CA No 304 of 1998, 5 February 1999, considered R v Henderson [1993] QCA 336; CA No 198 of 1991, 16 August 1993, considered R v Pike [2002] QCA 242;…
R v Cramond
[1999] QCA 11

…ntencing principle declared in this Court in R v Henderson [1993] QCA 336 and then repeated in R v Sharkey [1994] QCA 121 and restated in R v Cramond [1999] QCA 11, is very clear. This is that, where there is no question of fraud and where the safety of others is not a consideration, the appropriate head sentenc…
R v Henderson
[1993] QCA 336

…ting financial burden - whether sentence manifestly excessive R v Barling [1999] QCA 16; CA No 304 of 1998, 5 February 1999, considered R v Henderson [1993] QCA 336; CA No 198 of 1991, 16 August 1993, considered R v Pike [2002] QCA 242; CA No 132 of 2002, 15 July 2002, considered R v Sharkey [1994] QCA 121; CA No…
QCA 336 and then repeated in R v Sharkey
[1994] QCA 121

…derson [1993] QCA 336; CA No 198 of 1991, 16 August 1993, considered R v Pike [2002] QCA 242; CA No 132 of 2002, 15 July 2002, considered R v Sharkey [1994] QCA 121; CA No 28 of 1994, 29 March 1994, considered COUNSEL: S J Pearson for the applicant M J Copley for the respondent SOLICITORS: MacDonnells Solicitors…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Johnson [2005] QCA 265
PARTIES:	R v JOHNSON, Paul Richard (applicant)
FILE NO/S:	CA No 127 of 2005 DC No 488 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Cairns
DELIVERED EX TEMPORE ON:	29 July 2005
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2005
JUDGES:	McMurdo P, Williams and Jerrard 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 AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - PROPERTY OFFENCES - applicant convicted after plea of guilty to one count of arson - sentenced to four years imprisonment with recommendation for post-prison community based release after 12 months - applicant set fire to upstairs part of house he owned with his wife by distributing accelerant and turning on gas jets - apparent suicide attempt - Police and Fire and Rescue officers alerted by tenant in downstairs granny flat - no significant structural damage but a considerable degree of charring and smoke damage - potential danger in commission of offence to tenant in downstairs granny flat and neighbouring house - 48 years of age - no criminal history - applicant carried all resulting financial burden - whether sentence manifestly excessive R v Barling [1999] QCA 16; CA No 304 of 1998, 5 February 1999, considered R v Henderson [1993] QCA 336; CA No 198 of 1991, 16 August 1993, considered R v Pike [2002] QCA 242; CA No 132 of 2002, 15 July 2002, considered R v Sharkey [1994] QCA 121; CA No 28 of 1994, 29 March 1994, considered
COUNSEL:	S J Pearson for the applicant M J Copley for the respondent
SOLICITORS:	MacDonnells Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent