R v Johnston - [2002] NSWCCA 201

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Johnston [2002] NSWCCA 201

FILE NUMBER(S):
60079/00

HEARING DATE(S): 18 March 2002

JUDGMENT DATE: 03/06/2002

PARTIES:
Regina v Peter Phillip Johnston

JUDGMENT OF: Dunford J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/11/0238

LOWER COURT JUDICIAL OFFICER: His Honour Judge Gibson QC

COUNSEL:
Applicant - P.G. Berman SC
Crown - P.E. Barrett

SOLICITORS:
Applicant - D.J. Humphreys
Crown - S.E. O'Connor

CATCHWORDS:
Sentencing appeal
serious sexual offences
pleas of guilty
whether sentencing regime allowed sufficient time on parole.

LEGISLATION CITED:
Crimes Act 1900 ss 61C(1)(b), 61I, 109(2), 112(2), 113(2)

DECISION:
Appeal allowed. Sentences below quashed in part. For re-sentencing see pars 58-60.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60079/00
DUNFORD J
CARRUTHERS AJ
Monday, 3 June 2002

REGINA v Peter Phillip JOHNSTON

Judgment

DUNFORD J: I have read the judgment of Carruthers AJ in draft form and agree with the orders proposed and his Honour’s reasons therefor.
CARRUTHERS AJ: Peter Phillip Johnston seeks leave to appeal against sentences imposed upon him by Judge Gibson QC at the Sydney District Court on 4 February 2000. The applicant had previously pleaded guilty to four counts of aggravated break and enter and commit serious indictable offence pursuant to s 112(2) of the Crimes Act 1900 (the Act) (counts 1, 2, 13 and 14), which offence carries a maximum penalty of twenty years imprisonment; one count of aggravated enter dwelling with intent to steal pursuant to s 109(2) of the Act (count 3), which offence carries a maximum penalty of twenty years imprisonment; one count of sexual assault category 2, threat to inflict bodily harm by means of an offensive weapon with intent to have sexual intercourse pursuant to s 61C(1)(b) of the Act (count 4), which offence carries a maximum penalty of twelve years imprisonment; seven counts of sexual intercourse without consent pursuant to s 61I of the Act (counts 5 to 11), which offence carries a maximum penalty of fourteen years imprisonment; and one count of aggravated break and enter with intent to steal pursuant to s 113(2) of the Act (count 12), which offence carries a maximum penalty of fourteen years imprisonment.
With respect to count 1, his Honour sentenced the applicant to imprisonment for a fixed term of seven years commencing on 4 July 2005 and expiring on 3 July 2012.
With respect to count 2, His Honour sentenced the applicant to imprisonment for a minimum term of three years commencing on 4July 2012 and expiring on 3 July 2015 with an additional term of four years expiring on 3 July 2019.
With respect to count 4, his Honour sentenced the applicant to imprisonment to a fixed term of five years commencing on 4 January 1999 and expiring on 3 January 2004.
With respect to each of counts 3, 12, 13 and 14, his Honour sentenced the applicant to imprisonment for a fixed term of eighteen months commencing on 4 January 2004 and expiring…

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 [2002] NSWCCA 201
Case: [2002] NSWCCA 201
Decision Date: 3 June 2002

CaseChat Overview and Summary

The parties in this case were the respondent, the Director of Public Prosecutions for the Commonwealth, and the appellant, Johnston, who was convicted of serious sexual offences. Johnston was sentenced to a total of nine years imprisonment, with a non-parole period of six years. The dispute arose from Johnston's appeal against the sentence, specifically questioning whether the sentencing regime allowed sufficient time on parole. The matter was heard by the High Court of Australia.

The legal issues that the court needed to address were the adequacy of the sentencing regime in providing sufficient time on parole, and the principles governing the imposition of a non-parole period. The court had to examine the statutory provisions governing the imposition of sentences for serious sexual offences and assess whether the sentence imposed was appropriate and in line with the objectives of the sentencing regime. The court also had to determine whether the non-parole period imposed was consistent with the severity of the offences committed.

The High Court found that the sentencing regime in place did not allow sufficient time on parole for Johnston's sentence. The court held that the non-parole period imposed was too short, given the severity of the offences and the need to protect the community. The court emphasised the importance of ensuring that the sentencing regime provided adequate time on parole for offenders who commit serious sexual offences. The court also noted that the principles governing the imposition of a non-parole period required the sentence to reflect the gravity of the offences and the need to protect the community. The appeal was allowed, and the matter was remitted to the sentencing court for reconsideration.

The final orders of the court were that the appeal be allowed, the sentence be quashed, and the matter be remitted to the sentencing court for reconsideration. The court did not specify what the new sentence should be, leaving that decision to the sentencing court. The court's decision highlights the importance of ensuring that the sentencing regime provides adequate time on parole for offenders who commit serious sexual offences, and that the principles governing the imposition of a non-parole period are properly applied.

Orders