R v Johnston - [2017] ACTSC 280

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:	R v Barlow [2017] ACTSC 90 R v Ingram [2016] ACTSC 199
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…

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 [2017] ACTSC 280
Case: [2017] ACTSC 280
Decision Date: 14 September 2017

CaseChat Overview and Summary

The case of R v Johnston arose from the defendant's involvement in trafficking cannabis and heroin. The defendant was brought before the court to address the charges and determine an appropriate sentence. The court had to decide whether the defendant should receive a traditional custodial sentence or an intensive correction order (ICO), given the defendant's potential for rehabilitation. The court was also tasked with considering whether the sentence could be back-dated to account for the time the defendant had already spent in custody.

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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