R v Johnson - [1998] QCA 182

[1998] QCA 182

COURT OF APPEAL

PINCUS JA DAVIES JA SHEPHERDSON J

CA No 460 of 1997
THE QUEEN
v.

WAYNE ANTHONY JOHNSON	(Applicant)
BRISBANE ..DATE 27/03/98
JUDGMENT

270398 D.1 T9/JAP/20 M/T COA 62/98
DAVIES JA: The applicant seeks leave to appeal against
sentences imposed in the District Court on 17 November
last for armed robbery in company and unlawful use of a
motor vehicle with a circumstance of aggravation. The
sentences were 10 years imprisonment on the first and
two years imprisonment on the second with a
recommendation that he be eligible for parole after
serving three years. The applicant is 19 years of age,
having been born on 16 January 1978.

At the time of commission of these offences the applicant was an escapee from custody in New South Wales where he was serving a minimum term of three years imprisonment from 21 December 1996 cumulative on a term that he was then serving together with an additional term of three years to commence from 21 December 1999 on two counts of armed robbery one with wounding. That sentence had been imposed on 30 August 1996. In addition he had been dealt with on a number of previous occasions in the Children's Court in New South Wales mostly for dishonesty offences but on one previous occasion, that is on 7 December 1993, for two counts of robbery in company and of assault with intent and stealing.

He escaped from custody on 5 May 1997. He and a companion then stole a vehicle from Kingsford in Sydney and drove to Surfers Paradise where the robbery was committed at about 8.20 p.m. on 13 May 1997. By this time they had picked up a third companion.

270398 D.1 T9/JAP/20 M/T COA 62/98
After observing the shop which was later the subject of
the robbery in order to ascertain its closing time the
applicant and the companion mentioned entered it at the
time I have mentioned. The shop was a "Mini Mart". The
applicant produced a small hand gun and his companion
said to the proprietor "Give me all your cash and phone
cards. We're not stuffing around." The applicant
pointed the gun at the proprietor who then opened the
till. The applicant's companion then took out the cash
which amounted to $695.00. At this point the
proprietor's wife entered the store and the applicant
trained his gun on her. A further demand was made for
the phone cards and after some hesitation a box
containing them was handed over. Their value was
$355.00. The offenders then ran from the store.

Police were notified and a high speed chase followed ending in the vehicle containing the applicant and his companions overturning. They were then apprehended and henceforth the applicant co-operated with the police.

The applicant was of course entitled to credit for his co-operation and his plea of guilty notwithstanding that his conviction was inevitable. On the other hand it could not be suggested that there was any evidence…

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 [1998] QCA 182
Case: [1998] QCA 182
Decision Date: 27/03/1998

CaseChat Overview and Summary

In the case of The Queen v. Wayne Anthony Johnson, the applicant, Wayne Anthony Johnson, sought leave to appeal against the sentences imposed in the District Court for armed robbery in company and unlawful use of a motor vehicle with a circumstance of aggravation. The District Court had imposed a sentence of 10 years imprisonment for the armed robbery and two years imprisonment for the unlawful use of the motor vehicle, with a recommendation that the applicant be eligible for parole after serving three years. The applicant, who was 19 years old at the time, had a history of serious violent offences and had committed these offences while being an escapee from custody in New South Wales.

The legal issues before the Court of Appeal were whether the sentences imposed were manifestly excessive and whether the recommendation for eligibility for parole was appropriate. The Court had to consider the nature of the offences, the applicant's prior criminal history, his age, his cooperation with the police, and the circumstances surrounding the offences. The Court also had to consider the deterrence factor in sentencing for armed robbery and the potential impact of the applicant serving the balance of his New South Wales sentence.

The Court of Appeal found that the sentence of 10 years imprisonment for the armed robbery was a high one, but considered it appropriate in light of the applicant's prior criminal history and the prevalence of armed robberies in the area. The Court also found that the recommendation for eligibility for parole after serving three years was generous, given the absence of substantial factors that would justify a larger reduction. The Court was not satisfied that the sentence imposed was manifestly excessive and therefore refused the applicant's application for leave to appeal. The Court's decision was unanimous, with Pincus JA, Davies JA and Shepherdson J all agreeing that the application should be refused.

Orders