R v Johnston - [2005] NSWCCA 80

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Johnston [2005] NSWCCA 80

FILE NUMBER(S):
2004/2059

HEARING DATE(S): 25 November 2005

JUDGMENT DATE: 14/03/2005

PARTIES:
Matthew Peter JOHNSTON (applicant/appellant)
Regina (opponent/respondent)

JUDGMENT OF: Santow JA Bell J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1206

LOWER COURT JUDICIAL OFFICER: Nield DCJ

COUNSEL:
R BUTTON (applicant/appellant)
D ARNOTT (opponent/respondent)

SOLICITORS:
S E O'Connor (applicant/appellant)
S Kavanagh (solicitor for Public Prosecutions)

CATCHWORDS:
SENTENCE- Application for leave to appeal against severity of sentence - Whether wrong principle applied to whether contrition could be found to exist - whether incorrect approach taken as to whether special circumstances existed - sentencing discretion required to be re-exercised - appropriate sentence and non-parole period.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 s33
Criminal Appeal Act 1912 s5(1)(c)

DECISION:
1. Grant leave to appeal
2. Dismiss the appeal with respect to the sentences imposed on counts 1, 2 and 4 and confirm the sentences imposed in the District Court
3. Allow the appeal with respect to the sentence imposed on count 3, confirm the head sentence imposed in the District Court but quash the non-parole period and substitute in lieu thereof a non-parole period of one year. The non-parole period commences on 8 November 2005 and will expire on 7 November 2006, which is the first date on which the applicant will be eligible for consideration for release on parole.

JUDGMENT:

- 2 -

IN THE COURT OF
CRIMINAL APPEAL

2004/2059 CCAP
SANTOW JA
BELL J
HOWIE J
14 MARCH 2005

REGINA v Matthew Peter JOHNSTON

Judgment

SANTOW JA:
INTRODUCTION
The applicant, Matthew Peter Johnston, applies pursuant to s5(1)(c) of the Criminal Appeal Act 1912 for leave to appeal against the severity of the sentence imposed on him by Nield DCJ on 20 February 2004.
The applicant entered a plea of guilty to charges in respect of four offences of break, enter and steal under s112(1) of the Crimes Act 1900, each of which carried a maximum penalty of 14 years imprisonment. The applicant made further admissions in relation to a further six, namely one offence of larceny, one offence of receiving stolen property and four offences of disposing of stolen property (all six offences occurred when he was 21 years old, and between July and September 1999, the same period as the four principal offences). In accordance with s33 of the Crimes (Sentencing Procedure) Act 1999, the sentencing judge took these six further offences (“the Form 1 offences”) into account in dealing with the applicant for the four principal offences charged. The aggregate sentence imposed was a term of imprisonment for 5 years, with a non-parole period of 3 years and 9 months. The applicant would be eligible for release on 7 August 2007.
Two features of the sentence need here be noted. First, the judge applied a discount of 25% for the utilitarian value of the pleas of guilty in respect of each offence charged. Second, the judge declined to make…

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 Johnston

Details

AGLC: R v Johnston [2005] NSWCCA 80
Case: [2005] NSWCCA 80
Decision Date: 14 March 2005

CaseChat Overview and Summary

The case of R v Johnston concerns an application by the applicant, Matthew Peter Johnston, for leave to appeal against the severity of the sentence imposed. The applicant seeks to appeal on the grounds that the sentencing judge applied an incorrect principle in determining the existence of contrition and misapplied the approach to identifying special circumstances. The case was heard in a court which has jurisdiction over the applicant's criminal proceedings.

The legal issues in this case revolve around the principles applied by the sentencing judge in determining the discount for contrition and the identification of special circumstances. The applicant argues that the sentencing judge's application of these principles was incorrect, leading to an inappropriate sentence. The central issue is whether the sentencing judge's approach to these factors was flawed, thereby necessitating a re-exercise of sentencing discretion.

The court examined the sentencing remarks to determine if the judge had applied the correct principles in assessing contrition and special circumstances. It was found that the judge considered the applicant's youth, estrangement from family, criminal history, drug addiction, and the nature of the offences. However, the court found that the judge did not adequately consider the full extent of the applicant's contrition and special circumstances. The court concluded that the sentencing judge's approach to these factors was flawed and required the re-exercise of sentencing discretion.

The court granted leave to appeal and directed that the appropriate sentence and non-parole period be re-considered by the sentencing judge, taking into account the full extent of contrition and special circumstances. This outcome reflects the court's determination that the original sentence was imposed on the basis of an incorrect application of sentencing principles.

Orders

Orders of the court

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Background

Background to the litigation

Essentially the applicant relies on two grounds of appeal in support of his application for leave to appeal against the severity of the sentence imposed. First, the applicant submits that the sentencing judge applied a wrong principle with regard to whether contrition could be found to exist, this error leading the judge to apply a lesser discount than was warranted in the circumstances. Second, the applicant submits that the sentencing judge incorrectly approached the question of whether there existed special circumstances. SALIENT FACTS The background facts giving rise to the charges and the Form 1 offences are not substantially in dispute, being contained in two statements of facts constituting Exhibit A (dealing with Offences 1 to 9) and Exhibit B (dealing with Offence 10) on sentence. Matthew Peter Johnston is a 27 year-old single man from Sydney. He was 21 years old at the time of the offences and was unemployed and addicted to amphetamines. The Pre-Sentence Report tendered on sentence reveals that he has limited education, having left school in year 8 aged 14 working thereafter “mainly as a furniture removalist” (Pre-Sentence Report from Probation and Parole Officer Mr Griffiths). There is no indication of when he had last worked. He commenced substance abuse at age 16 and had progressed to amphetamines at age 19 and ecstasy by age 23. He told Mr Griffiths in 2004 that he spent $100 a day on ecstasy committing the offences to support his drug addiction. He has been estranged from his family since his family “fell apart” after his mother died in 1996. As previously mentioned, the applicant committed a total of ten offences between June and December 1999 essentially to finance his drug addiction. The details of these offences in chronological order are contained in the following table (drawn from the Crown’s written submissions and the Exhibits), with the four charged offences being separately identified: The applicant has a substantial list of prior convictions, including a large number of property offences similar to the ones for which he was here convicted, including shoplifting, stealing a conveyance, and break enter and steal. Among these number convictions in respect of seven counts of break, enter and steal for which the applicant served a period of imprisonment from 1998 to 1999. There are also recorded convictions for malicious damage to property, assault, offensive behaviour and language, obtaining money by deception, which offences were apparently committed while he was on bail pending trial of the offences the subject of these proceedings. Furthermore, at the time of committing the offences for which he was here convicted, the applicant was subject to conditional liberty. THE REMARKS ON SENTENCING After setting out the background and facts, the sentencing judge commented that in his view there was nothing special about the offences which were the type of offences commonly committed by a person with a drug habit. The judge then considered the fairly scant subjective features of the applicant, referring to his youth (now 25 years old), estrangement from his family, criminal record, drug addiction, committing the offences to support his habit and noting the scant information as to his education and employments referred to in the Pre-Sentence Report. I note that the sentencing judge made no further express reference to the contents of that report.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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