R v Johnston - [2001] NSWCCA 93

CITATION: R v JOHNSTON [2001] NSWCCA 93

FILE NUMBER(S): CCA 60435/00; 60844/00

HEARING DATE(S): 23/03/2001

JUDGMENT DATE:
23 March 2001

PARTIES :

REGINA v Shane Michael JOHNSTON

JUDGMENT OF: Studdert J at 20; Barr J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/31/0213; 00/31/0418

LOWER COURT JUDICIAL
OFFICER : Job QC DCJ, English DCJ

COUNSEL : Crown: WL Robinson QC
Applicant: M Thangaraj

SOLICITORS: Crown: SE O'Connor
Applicant: DJ Humphreys

DECISION: Leave to appeal granted; Appeal dismissed

60435/00

60844/00

STUDDERT J
BARR J

REGINA v Shane Michael JOHSTON

JUDGMENT

1 BARR J: Shane Michael Johnston seeks leave to appeal against sentences imposed upon him in the District Court. On 29 June 2000 he pleaded guilty before Job QC DCJ to three counts of breaking, entering and stealing. At the same time he asked his Honour to take into account five further matters under the provisions of the Crimes (Sentencing Procedure) Act. His Honour did so and on each charge sentenced the applicant to imprisonment for four years, commencing on 11 April 2000, and fixed a non-parole period of three years.

2 On 14 December 2000 the applicant pleaded guilty before English DCJ to one further offence of breaking, entering and stealing. It was an offence committed at about the same time as those which Job DCJ took into account and the particulars of it would have been dealt with under the provisions of the Crimes (Sentencing Procedure) Act before his Honour if it had not been overlooked. By the time the matter came before her Honour, of course, it was too late to deal with it in that manner. Her Honour sentenced the applicant to imprisonment for three years, also commencing on 11 April 2000, and fixed a non-parole period of two years and three months.

3 It is submitted that the total term imposed by Job DCJ was manifestly excessive. The length of the sentence imposed by English DCJ, surprisingly in view of the first submission, is not attacked. It is submitted that their Honours both fell into error in declining to fix non-parole periods that were less than three-quarters of the terms of the relevant sentences.

4 The applicant was twenty-five years old when he came up for sentence. He had been dealt with by the courts regularly since 1991, when he was sixteen years of age. His offences included a number of instances of assault and malicious damage, but were principally concerned with theft, breaking, entering and stealing, having stolen goods in his custody and the like. After giving him many chances by way of control orders, community service orders and the like, the courts began to pass sentences of detention. There were gaol terms and terms of home detention. By the time he came before Job DCJ he had served a number of fixed or minimum terms ranging up to six months. He told Job DCJ that he began offending because he was bored, continued to do so in order to…

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 [2001] NSWCCA 93
Case: [2001] NSWCCA 93
Decision Date: 23 March 2001

CaseChat Overview and Summary

In the case of R v Johnston, the applicant, Shane Michael Johnston, sought leave to appeal against the sentences imposed on him by the District Court. Johnston had pleaded guilty to multiple counts of breaking, entering, and stealing, and the District Court had sentenced him to imprisonment terms, with non-parole periods set by the court. The central legal issue was whether the sentences imposed, particularly the non-parole periods, were excessive and whether the District Court erred in not setting non-parole periods less than three-quarters of the total sentences. Additionally, the court had to consider whether the District Court adequately balanced the need for rehabilitation against the seriousness of the offences and the applicant's criminal history.

The Court of Criminal Appeal, consisting of Studdert J and Barr J, found that the sentences imposed by the District Court were within the appropriate range of sentencing discretion. The court took into account Johnston's extensive criminal history, which included numerous instances of theft, breaking, entering, and other related offences. The court also considered the seriousness of the current offences and the need for public protection. The judges concluded that the non-parole periods set by the District Court were appropriate given the circumstances, and the sentences did not represent an abuse of discretion. Therefore, the court granted leave to appeal but dismissed the appeals on the grounds that the sentences were not manifestly excessive and the District Court had properly exercised its sentencing discretion.

Orders