SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Johnston |
Citation: | [2017] ACTSC 280 |
Hearing Date: | 6 July 2017 |
DecisionDate: | 14 September 2017 |
Before: | Penfold ACJ |
Decision: | See [47] – [52] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in cannabis and heroin – intensive correction order more effective in promoting rehabilitation but sufficiently burdensome to provide element of punishment – legislation precludes back-dating sentence to be served by intensive correction order – pre‑sentence custody taken into account by allowing more concurrency than otherwise appropriate. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 11(3), 29(1)(b), 80 Criminal Code 2002 (ACT), ss 603(5), 603(7) |
Cases Cited: | |
Parties: | The Queen (Crown) Donald Ian Johnston (Offender) |
Representation: | Counsel Mr D Sahu Khan (Crown) Mr S Whybrow (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused) | |
File Numbers: | SCC 248 of 2016; SCC 249 of 2016 |
The offences
Donald Johnston has pleaded guilty to two offences, as follows:
(a)trafficking in a controlled drug other than cannabis (heroin), arising under s 603(7) of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 10 years; and
(b)trafficking in a trafficable quantity of cannabis, arising under s 603(5) of the Criminal Code and carrying a maximum penalty including imprisonment for 10 years.
The incidents
Through telephone intercepts recorded in May and June 2016 and from other sources, the police became aware of the following events:
(a)on 21 May 2016, Mr Johnston sold a quantity of cannabis to a man named Sasha;
(b)on 10 June 2016, Mr Johnston arranged to meet another man to sell cannabis;
(c)on 13 June 2016, Mr Johnston supplied a woman named Jules with a quantity of cannabis, and later on the same day, Mr Johnston sold a man two pounds of cannabis;
(d)on 15 June 2016, Mr Johnston arranged to meet a man at a church in connection with the sale of cannabis;
(e)on 17 June 2016, when Mr Johnston was out of town, he arranged for his son to deliver a package that contained around a pound of cannabis to a man; and
(f)on 25 June 2016, Mr Johnston went to a house in Downer where he purchased an unknown quantity of cannabis from another man, Van Bui.
In the afternoon of 9 July 2016, Mr Johnston went to the same place in Downer with $20,000 in cash, where he met Mr Bui again and exchanged the $20,000 for a foil packet of heroin (173gm of substance, with 73.3% purity, giving a pure weight of 127.3gm) and a 1.36kg (roughly 3-pound) bag of cannabis. Mr Johnston intended to sell the cannabis and at least some of the heroin.
Mr Johnston was stopped by police shortly after leaving the Downer house and was found in possession of the heroin and cannabis.
He was arrested that day, and charged on 11 July 2016 with…
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- R v Johnston [2017] ACTSC 280
- Case
- [2017] ACTSC 280
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CaseChat Overview and Summary
The court examined the statutory framework and case law to decide if an ICO was suitable, given its rehabilitative potential and the need for punishment. The court held that an ICO was more appropriate in this case because it was sufficiently burdensome to serve as a form of punishment while providing the defendant with an opportunity for rehabilitation. However, the court noted that the legislation did not allow for the back-dating of sentences to be served by an ICO. Instead, the court had to ensure that the defendant's pre-sentence custody was taken into account, which led to the court allowing a greater degree of concurrency in the sentence than might otherwise have been appropriate.
Following this reasoning, the court imposed an ICO that incorporated a significant degree of concurrency with the defendant's pre-sentence custody. This decision balanced the need for punishment and the opportunity for rehabilitation, while also adhering to the legislative constraints regarding the back-dating of ICOs. The court further specified that the defendant's pre-sentence custody would be taken into account by allowing the ICO to run concurrently with the time already served. The court provided detailed orders to ensure that the sentence was both effective and legally compliant.
Orders
Orders of the court
See [47] – [52] below.
Background
Background to the litigation
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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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