R v Johnson - [1997] QCA 21

[1997] QCA 021

COURT OF APPEAL
DAVIES JA
McPHERSON JA

FRYBERG J

CA No 503 of 1996
THE QUEEN
v.

CLINTON ROSS JOHNSON Applicant

BRISBANE

..DATE 10/02/97

JUDGMENT
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McPHERSON JA: The application before us is made by Clinton Ross Johnson to extend the time within which to apply for leave to appeal against the sentence or sentences imposed in the Magistrates Court at Cairns.

The application, on one view of it, was filed some 13 or 14 days out of time; but the applicant claims that he lodged or gave instructions for the lodgment of an application for leave to appeal against sentence, and that it appears to have gone astray. Inquiries by the Crown have not succeeded in ascertaining precisely what happened, because the relevant file is missing from the Lotus Glen Centre.

Turning from the matter of explanation for the lateness of the application to the question of the sentence itself, the material discloses the following matters. The applicant was first dealt with on 12 September 1996 for offences of possession of a dangerous drug on 29 August 1996, and giving a false name on that occasion; in addition, he was also charged with possession of a dangerous drug and possession of a pipe on 30 July 1996, and taking goods unlawfully from a shop on

4 September 1996.

He came before the Court in respect of those offences on 12 September 1996, when he was convicted and fined, with a default penalty of 16 days, for the first series of offences. For the offence committed on 4 September he was convicted and fined $150.

2 JUDGMENT

100297 T2/SJ3 M/T COA11/97

Thereafter and having (contrary to what might have been hoped) not learned his lesson, he proceeded to commit an offence of breaking, entering and stealing on 16 September, as well as being found in possession of a pipe and amphetamine. On

21 September he was in possession of lysergic acid and, again,

amphetamine.

When on 2 October 1996 he pleaded guilty in the Magistrates other offence. The result was, as I have said, that he sustained a sentence of 10 months imprisonment against which this application for leave to appeal is now maintained.

Court at Cairns to those offences, an effective sentence of
10 months was imposed, consisting of a sentence of imprisonment
for six months in respect of the offences committed on 16

I have come to the conclusion that the sentence was, in all the circumstances, severe, particularly when regard is had to some of the mitigating features involved. It is true that he committed the later set of offences shortly after he had been dealt with for the other matters to which I have referred; but he was at the time a young man of 24 years of age and, apart from these offences, he had a clear record. He was in a position of some difficulty financially, and claims that he committed the most serious of these offences, which…

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 [1997] QCA 21
Case: [1997] QCA 21
Decision Date: 10/02/1997

CaseChat Overview and Summary

The case of R v Johnson before the Court of Appeal involved the applicant, Clinton Ross Johnson, seeking an extension of time to appeal against the sentence imposed by the Magistrates Court at Cairns. Johnson was convicted and sentenced for various offences including possession of dangerous drugs, providing false names, unlawful taking of goods, breaking and entering, and stealing. The Court was tasked with deciding whether to grant Johnson an extension to file his appeal and if the sentence imposed was appropriate. The court further deliberated on whether to record the convictions for the offences committed on 2 October 1996.

The Court of Appeal acknowledged that Johnson's application for an extension was late but considered his claim that his initial application had been lost. The court examined the severity of the sentence in relation to Johnson's circumstances, noting his young age, lack of prior criminal record, and financial difficulties. Despite his repeated offending, the court recognised his willingness to accept probation instead of continuing with parole. The court concluded that the sentence was severe given the mitigating factors and decided to allow an appeal against the sentence.

In its judgment, the Court of Appeal extended the time limit for Johnson to appeal, set aside the original sentence, and substituted it with a 12-month probation order. The court also decided not to record the convictions for the offences committed on 2 October 1996, considering Johnson's acceptance of probation and the time already served. Johnson agreed to the terms of probation, and the court confirmed that all relevant offences had been addressed in the appeal.

Orders