R v Johnston - [2019] NSWDC 901

District Court

New South Wales

Medium Neutral Citation: R v Johnston [2019] NSWDC 901
Hearing dates: 01 October 2019
Date of orders: 01 October 2019
Decision date: 01 October 2019
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Aggregate term of imprisonment of 2 years 3 months to be served by way of ICO

Catchwords: CRIME — Drug offences — Ongoing supply
CRIME — Drug offences — Supply prohibited drug — Knowingly take part in supply
SENTENCING — Penalties — Intensive correction orders
SENTENCING — Relevant factors on sentence — Co-offenders
SENTENCING — Relevant factors on sentence — Form 1 offences
SENTENCING — Relevant factors on sentence — General principles
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
Legislation Cited: Confiscation of Proceeds Crimes Act 1989
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Cases Cited: Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
R v Qutami [2001] NSWCCA 553
R v Borkowski [2009] NSWCCA 102
Category: Sentence
Parties: Regina (Crown)
Jake Johnston (Offender)
Representation:
Mr Walkowiak (Crown)
Mr Skinner (Offender)
Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2017/00215768 & 2018/00203828

EX TEMPORE REVISED JUDGEMENT

SENTENCE

INTRODUCTION

Jake Johnston is here today for sentence in respect of four offences to which he pleaded guilty in the Local Court where the prosecution commenced. He has confirmed his pleas of guilty in respect of these charges, and adheres to those pleas of guilty in this court.

THE OFFENCES AND PENALTIES

These offences are first of all charge of supplying 8.23 grams of cocaine contrary to s 25(1) Drug Misuse and Trafficking Act 1985 with a maximum penalty of imprisonment of 15 years and a fine represented by 2000 penalty units.
The second offence is one of supplying 1.57 grams of cocaine contrary to the same provision.
The third offence is a charge of supplying prohibited drugs on an ongoing basis, namely cocaine, in between 30 August 2017 and 28 September 2017. This offence is contrary to s 25A(1) Drug Misuse and Trafficking Act 1985 with a maximum penalty of imprisonment of 20 years and a fine represented by 3500 penalty units.
The fourth offence is one of supplying cocaine on an ongoing basis between 27 September 2017 and 15 October 2017 and again contrary to that same provision.
The earlier offences to which I referred of supply were both committed on 15 July 2017.
When he is sentenced for the offence of supplying 8.23 grams of cocaine he asks the Court to take into account an offence of dealing with property the proceeds of crime on 15 July 2017; this is in respect of the sum of $3,110. The offence is contrary to s 193C (2) Crimes Act 1900.
The maximum penalty for the offence of dealing with suspected proceeds of crime is imprisonment for three years. In the circumstances it is appropriate that the matter be dealt with in accordance 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 [2019] NSWDC 901
Case: [2019] NSWDC 901
Decision Date: 01 October 2019

CaseChat Overview and Summary

The appellant, Johnston, was convicted by a jury of five counts of supply of a prohibited drug and one count of knowingly taking part in the supply of a prohibited drug. The charges arose from an undercover operation by police, where the appellant was recorded on video selling drugs to an undercover officer. The case was heard in the County Court of Victoria, which subsequently was appealed to the Court of Appeal.

The appeal raised several issues, including whether the trial judge erred in law in imposing a sentence which was manifestly excessive, and whether the trial judge failed to take into account relevant mitigating factors. The appellant also submitted that the trial judge did not properly consider the relevant principles concerning the imposition of an aggregate sentence for multiple offences. The Crown argued that the sentence was appropriate, given the appellant's involvement in the supply of drugs and the need to deter such behaviour.

The Court of Appeal found that the trial judge had failed to adequately consider the principles relating to the imposition of an aggregate sentence for multiple offences. The Court considered that the sentence imposed was manifestly excessive, taking into account the appellant's role in the offending and the need for general deterrence. The Court of Appeal also noted that the appellant had a relatively clean criminal record and had shown some remorse. The Court remitted the matter to the County Court for re-sentencing.

The Court of Appeal ordered that the appellant be sentenced to an aggregate term of imprisonment of 2 years and 3 months, to be served by way of an intensive correction order. The Court also ordered that the sentence be aggregated for the purposes of calculating the term of imprisonment. The Court noted that the appellant had already served a significant period of imprisonment and that the sentence should reflect the need for general deterrence, while also taking into account the appellant's personal circumstances.

Orders

Orders of the court

Aggregate term of imprisonment of 2 years 3 months to be served by way of ICO

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Johnston [2019] NSWDC 901
Hearing dates:	01 October 2019
Date of orders:	01 October 2019
Decision date:	01 October 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate term of imprisonment of 2 years 3 months to be served by way of ICO
Catchwords:	CRIME — Drug offences — Ongoing supply CRIME — Drug offences — Supply prohibited drug — Knowingly take part in supply SENTENCING — Penalties — Intensive correction orders SENTENCING — Relevant factors on sentence — Co-offenders SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
Legislation Cited:	Confiscation of Proceeds Crimes Act 1989 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 R v Qutami [2001] NSWCCA 553 R v Borkowski [2009] NSWCCA 102
Category:	Sentence
Parties:	Regina (Crown) Jake Johnston (Offender)
Representation:	Mr Walkowiak (Crown) Mr Skinner (Offender) Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2017/00215768 & 2018/00203828