Medium Neutral Citation: R v Johnson [2014] NSWSC 1254
Hearing dates: 5 September 2014
Decision date: 05 September 2014
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
(1) The offender is sentenced to a non-parole period of 18 months commencing on 30 October 2012 and expiring on 29 April 2014 with an additional term of 8 months commencing on 30 April and expiring on 29 November 2014.

(2) The offender is to be released on parole at the expiration of the non-parole period. It is noted that the offender was released on 13 May 2014.
(3) The offender is to report to the Fairfield office of the Probation and parole Service within 7 days and is to accept the supervision and guidance of that service for the balance of term or for such shorter period as the service determines to be appropriate.
Catchwords: CRIMINAL LAW - SENTENCE - accessory after the fact to murder - guilty plea entered at first reasonable opportunity - alternate charge to murder - joint trials separated - objective gravity of the offence - delay of investigation and prosecution - accessory in unexpected circumstances - assisting family members - motivations of misguided loyalty or emotional attachment - step towards disposal of a body - sentence imposed no longer than period of time spent in custody - below mid-range of objective criminality - general deterrence - low category for re-offending - absence of serious criminal record
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Kaminic v R [2014] NSWCCA 116
Postlewaight v R [2011] NSWSC 279
R v Cardoso [2003] NSWCCA 15
R v Cowen [2008] NSWSC 104
R v Deeble (Court of Criminal Appeal (NSW), 19 September 1991, unrep)R v Dileski [2002] NSWCCA 345; (2002) 132 A Crim R 408
R v English [2000] NSWCCA 245
R v Faulkner [2000] NSWSC 944
R v Foster (Court of Criminal Appeal (NSW),30 October 1996, unrep)
R v Galea [2000] NSWSC 301
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Kari; R v H; R v Hamid [2008] NSWSC 993
R v McHugh (1985) 1 NSWLR 588
R v Newman [2004] NSWCCA 102; (2004) 145 A Crim R 361
R v Oinonen [1999] NSWCCA 310
R v Quach [2002] NSWSC 1205
R v RD [2014] NSWCCA 103
R v Reid (Court of Criminal Appeal (NSW), 26 March 1997, unrep)
R v Urriola [2010] NSWSC 367
Category: Sentence
Parties: Crown
Mitchell Johnson (Offender)
Representation:
Counsel:
L Lungo (Crown)
J Spencer (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
John Doolan (Offender)

File Number(s): 2012/338769
Publication restriction: Nil

REMARKS ON SENTENCE

HIS HONOUR: On 25 July 2010 Mitchell Johnson, to whom I…

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] NSWSC 1254
Case: [2014] NSWSC 1254
Decision Date: 05 September 2014

CaseChat Overview and Summary

The case of R v Johnson involved the defendant, Johnson, who was charged as an accessory after the fact to a murder. Johnson entered a guilty plea at the first reasonable opportunity available. An alternate charge to murder was also considered. The joint trials of the accused individuals were separated. The court was required to determine the appropriate sentence considering the objective gravity of the offence, the delay in investigation and prosecution, the unexpected circumstances of the defendant acting as an accessory, and the motivations behind Johnson's actions, which were driven by misguided loyalty or emotional attachment to family members. The court also needed to consider Johnson's role in disposing of a body, the time he had already spent in custody, and the appropriate sentencing range considering his objective criminality, general deterrence, and the likelihood of re-offending.

In reaching its decision, the court examined the nature and severity of Johnson's involvement in the crime, noting that while his role was significant, it was not that of the primary offender. The court took into account the unexpected circumstances under which Johnson became an accessory, acknowledging the influence of his emotional attachment to family members. The court also recognised the delay in the investigation and prosecution, which had an impact on the overall timeline of events. The sentence imposed was structured to ensure it was no longer than the period of time Johnson had already spent in custody. The court placed significant weight on Johnson's lack of a serious criminal record and his low likelihood of re-offending. Consequently, the sentence was set below the mid-range of objective criminality, balancing considerations of general deterrence with the mitigating factors presented.

The court ultimately determined that the sentence should reflect the objective gravity of the offence while also considering the unique circumstances of Johnson's case. The final orders included a sentence that accounted for the time already served, the mitigating factors, and the need to deter future criminal behaviour without excessively penalising Johnson for his misguided actions. The court aimed to achieve a just outcome that aligned with both the principles of criminal justice and the specific details of the case.

Orders