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R v Johnston

R v Johnston

Case [2008] QCA 291 26 September 2008

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Johnston [2008] QCA 291

PARTIES:

R
v
JOHNSTON, Alan David
(applicant)

FILE NO/S:

CA No 52 of 2008
DC No 404 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

26 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2008

JUDGES:

Keane and Fraser JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for an extension of time within which to apply for leave to appeal refused

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MISCELLANEOUS PRACTICE CASES – where the applicant was convicted of unlawful stalking with violence and sentenced to a term of imprisonment – where the learned trial judge also made a restraining order in respect of the applicant’s de facto wife – where the applicant filed an application for an extension of time within which to apply for leave to appeal against sentence – where it was clear that the applicant sought only to challenge the restraining order – where the applicant could have applied to the District Court to have the restraining order revoked or modified instead of making the application for an extension of time to this Court – whether the making of the restraining order formed part of the sentence imposed – whether, when the application was treated as an application under s 118(3) of the District Court of Queensland Act 1967 (Qld), the merits of the application warranted the grant of an extension of time within which to apply for leave to appeal

Criminal Code 1899 (Qld), s 359F, s 668D
District Court of Queensland Act 1967 (Qld), s 118

Pickering v McArthur[2005] QCA 294, cited
R v Blow [1963] QWN 1, cited
R v Harman [1959] 2 QB 134, cited
R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, applied

COUNSEL:

The applicant appeared on his own behalf
M B Lehane for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by Fraser JA. I agree with his Honour’s reasons and with the order proposed by his Honour.

FRASER JA
: On 14 December 2007 the applicant was convicted on his plea of guilty of an offence of unlawful stalking with violence between 1 January and

3 March 2007. On 18 January 2008 the applicant was sentenced in the District Court to two and a half years imprisonment with a parole release date of 1 February 2008 (representing 11 months in custody, with 322 days of pre-sentence custody declared as time served).

The sentencing judge also made a restraining order in respect of the two complainants and their immediate family members and a separate restraining order in respect of a witness, the applicant’s de facto…

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 [2008] QCA 291
Case: [2008] QCA 291
Decision Date: 26 September 2008

CaseChat Overview and Summary

The case of R v Johnston involved the applicant who was convicted of unlawful stalking with violence and was sentenced to imprisonment. Additionally, the trial judge issued a restraining order against the applicant's de facto wife. The applicant subsequently sought an extension of time to apply for leave to appeal against the sentence, specifically targeting the restraining order. The court had to determine whether the restraining order was integral to the sentence imposed and whether the merits of the application justified granting an extension of time under section 118(3) of the District Court of Queensland Act 1967.

The primary legal issues before the court were whether the restraining order was part of the sentence and if so, whether the applicant could challenge it through the appeal process. The court had to assess if the applicant's application for an extension of time was valid and whether it was appropriate to treat the application as one under section 118(3) of the Act. The court also considered the alternative procedural avenues available to the applicant, such as applying directly to the District Court for the modification or revocation of the restraining order.

The court reasoned that the restraining order formed part of the sentence imposed by the trial judge. Consequently, the applicant's challenge to the restraining order was effectively a challenge to the sentence. The court found that the applicant had failed to demonstrate any exceptional circumstances warranting an extension of time to appeal the sentence. Furthermore, the court noted that the applicant could have directly sought modification of the restraining order from the District Court, which would have been a more appropriate course of action. Therefore, the application for an extension of time was refused.

Orders

Orders of the court

The application for an extension of time within which to apply for leave to appeal refused

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.

Citations

AGLC Citation

R v Johnston [2008] QCA 291

Most Recent Citation

R v Emini and Blumberg [2011] VSC 336

Cases citing this decision · 15 of 15 shown

R v Fenwick
[2025] VSC 95 Para 1

…in some form. See also R v Guillerme [2023] VSC 36 at [201]–‍[207]. [25]The same may be said of the process prescribed by s 6AAA. See also R v Johnston (2008) 186 A Crim R 345 at 349[16] ( per Nettle JA, with whom Buchanan JA and Ashley JA agreed) and the cases cited. [26]See, e.g., the approach of Nettle JA in R v Jo…
Morris v Commissioner of Police
[2025] QDC 111 Para 23

…l jurisdiction rather than its criminal jurisdiction.[8] The appellant has no right to appeal under s 222(1) of the Justices Act . [8] R v Johnston [2008] QCA 291 at [8].…
Hickey v Commissioner of Police
[2023] QDC 181 Para 2

…The starting point is the case of R v Johnston [2008] QCA 291. That case involved an appeal to the Court of Appeal from a decision in this Court to impose a restraining order. Fraser JA gave the leading judgment with which Keane JA and Atkinson J agreed.…
R v Guillerme
[2023] VSC 36 Para 1

…st significant mitigating factors have impacted separately on sentence.[23] [22]The same may be said of the process prescribed by s 6AAA. See also R v Johnston (2008) 186 A Crim R 345 at 349[16] ( per Nettle JA, with whom Buchanan JA and Ashley JA agreed) and the cases cited. [23]See, e.g., the approach of Nettle JA i…
O'Toole v The Queen
[2019] VSCA 185

…[23]See R v Johnston (2008) 186 A Crim R 345 (‘ Johnston ’).…
DPP v Cooper
[2018] VSCA 21

…[13]See R v Johnston (2008) 186 A Crim R 345 (‘ Johnston ’).…
Porter v Queensland Police Service
[2016] QDC 335 Para 1

…l under s 118 of the District Court of Queensland Act 1967 for the restraining order, but it would make no different in the result. 69 R v Johnston [2008] QCA 291.…
R v Cox
[2016] QCA 251 Para 1

…be corrected to note that the fine imposed was referred to SPER in lieu of a time period of 28 days to pay being specified.[6] [5]See R v Johnston [2008] QCA 291. [6]See R v Millar [2013] QCA 28 at [72] per White JA, citing the Criminal Practice Rules 1999 (Qld) r 62(5). Orders…
Ralph v Commissioner of Police
[2015] QDC 206 Para 1

…Mr Cummings relies principally on the reasoning of Fraser JA (with whom Keane JA (as his Honour then was) and Atkinson J agreed) in R v Johnston [2008] QCA 291.…
Saner v The Queen
[2014] VSCA 134 Para 1

…anifestly excessive’: Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673, 686 [47] (Maxwell P with whom Redlich JA agreed). See also R v Johnston (2008) 186 A Crim R 345, 350 [19] and Scerri v The Queen (2010) 206 A Crim R 1, 8 [30]. [56]See [85]-[92] below.…
R v BBK (No 2)
[2014] QCA 71 Para 1

…Marriner [2007] 1 Qd R 179 per McPherson JA at [12], de Jersey CJ and Williams JA concurring. [5][2007] QCA 56 per de Jersey CJ and Holmes JA. [6][2008] QCA 291.…
R v WR
[2013] VSC 603 Para 1

…ants a very substantial discount on sentence. Whilst I do not think it warrants the maximum discount available – which, as Nettle JA noted in R v Johnston (2008) 186 A Crim R 345 at [15]-[19], may be as much as 50 to 66 percent – it certainly warrants a very substantial discount, a discount that is significantly great…
R v Emini and Blumberg
[2011] VSC 336 Para 1

…ing too mathematical, and remembering that sentencing is a process of instinctive synthesis, I accept the Crown’s submissions as to discount. [6]Cf R v Johnston (2008) 186 A Crim R 345, 350 [18]. [7]Email sent 19 July 2011 at 1443 from Samantha Holmes of the Commonwealth Director of Public Prosecutions, Melbourne offi…
R v Hennessy; Hennessy v Vojvodic
[2010] QCA 345 Para 1

…riminal Code . He is, therefore, still bound by its terms. [38]Pursuant to s 118 of the District Court of Queensland Act 1967 (Qld); see R v Johnston [2008] QCA 291 at [8] per Fraser JA.…
Cottee v The Queen
[2010] VSCA 285

…[4]See R v Johnston (2008) 186 A Crim R 345.…

View all 15 citing cases →

Cases cited in this decision · 3 of 3 shown

R v Marriner
[2006] QCA 32 Para 1

…[1963] QWN 1 per Gibbs J at 4, following R v Harman [1959] 2 QB 134. R v Blow was followed in R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, in which Mc Pherson JA observed that it is not every order following chronologically after conviction that amounts to a “sentence” on conviction: “There must be a relations…
Pickering v McArthur
[2005] QCA 294 Para 1

…antial injustice to the applicant and there is a reasonable argument that there is an error to be corrected: see, for example, Pickering v McArthur [2005] QCA 294.…
[1959] 2 QB 134
[1959] 2 QB 134 Para 1

…e words “on conviction” mean “in consequence of conviction”: see R v Blow [1963] QWN 1 per Gibbs J at 4, following R v Harman [1959] 2 QB 134. R v Blow was followed in R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, in which Mc Pherson JA observed that it is not every order following chronologically after convictio…

Legislation cited in this decision · 1

District Court of Queensland Act 1967 (Qld)
118 2 mentions (from Para 1)

CITATION:	R v Johnston [2008] QCA 291
PARTIES:	R v JOHNSTON, Alan David (applicant)
FILE NO/S:	CA No 52 of 2008 DC No 404 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence)
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	26 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	19 September 2008
JUDGES:	Keane and Fraser JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for an extension of time within which to apply for leave to appeal refused
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MISCELLANEOUS PRACTICE CASES – where the applicant was convicted of unlawful stalking with violence and sentenced to a term of imprisonment – where the learned trial judge also made a restraining order in respect of the applicant’s de facto wife – where the applicant filed an application for an extension of time within which to apply for leave to appeal against sentence – where it was clear that the applicant sought only to challenge the restraining order – where the applicant could have applied to the District Court to have the restraining order revoked or modified instead of making the application for an extension of time to this Court – whether the making of the restraining order formed part of the sentence imposed – whether, when the application was treated as an application under s 118(3) of the District Court of Queensland Act 1967 (Qld), the merits of the application warranted the grant of an extension of time within which to apply for leave to appeal Criminal Code 1899 (Qld), s 359F, s 668D District Court of Queensland Act 1967 (Qld), s 118 Pickering v McArthur[2005] QCA 294, cited R v Blow [1963] QWN 1, cited R v Harman [1959] 2 QB 134, cited R v Marriner [2007] 1 Qd R 179; [2006] QCA 32, applied
COUNSEL:	The applicant appeared on his own behalf M B Lehane for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent