R v Johnston - [2019] NSWDC 607

District Court

New South Wales

Medium Neutral Citation: R v Johnston [2019] NSWDC 607
Hearing dates: 12 February, 20 February, 18 April, 8 July and 20 September 2019
Decision date: 20 September 2019
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 5 years 6 months with a non parole period of 4 years imprisonment.

Catchwords: CRIME - SENTENCE - Intimidation - aggravated break and enter and commit serious indictable offence.
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW) s13(1); Crimes Act 1900 (NSW) s112(2)
Category: Sentence
Parties:
Regina (Crown)
Sarah Lee Johnston (Offender)
Representation:
Ms Martin (ODPP)
Mr P. Cranney (Solicitor for the offender)

File Number(s): 2018/251817
Publication restriction: Nil

Judgment

Sarah Lee Johnston you appear for sentence today in relation to two offences.
The first offence is that of intimidation. This involves a contravention of s 13(1) of the Crimes (Domestic and Personal Violence) Act. The maximum penalty for that offence is five years imprisonment. There is no standard non-parole period.
The second offence is aggravated break and enter in company and commit serious indictable offence. The relevant indictable offence was also intimidation – although, as the facts reveal, the victim of that intimidation was not the same victim as in the earlier offence to which I have referred. This involves a contravention of s 112(2) of the Crimes Act. The maximum penalty for that offence is 20 years imprisonment and there is a standard non-parole period of 5 years imprisonment.
The facts surrounding the offending are contained in an agreed statement of facts. To the extent that evidence has been adduced by you which is inconsistent with the agreed statement of facts, it will be disregarded.
As at 15 August 2018 you were on bail on a charge of affray.
On that date, Ms Sylvia Zarbo and her friend, Ms Stevie Cock, lived in a small rural town in NSW.
On that day, they had been shopping together. They returned to Ms Zarbo’s home at about 8pm. On their return to those premises, they each consumed an unknown quantity of the drug commonly known as ice.
At some stage earlier in the day, Ms Cock had received a Facebook call from you. The purpose of that call was to remind Ms Cock that she owed you some money. The nature of that debt is not revealed in the material before me. Suffice to say, you told Ms Cock that you were coming to get the money that was owed and that a mutual friend (whose name I know only as Tegan) would drive you to where Ms Cock was - namely at the residence of Ms Zarbo.
Ms Cock told you that she would meet you but that (in effect) she would have no money to pay you until midnight when she expected a deposit to be made from Centrelink into her bank account. Nevertheless, you said you were coming straightaway.
Sometime between 10pm and 11pm Ms Cock left Ms Zarbo’s…

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 607
Case: [2019] NSWDC 607
Decision Date: 20 September 2019

CaseChat Overview and Summary

The case of R v Johnston was heard in the Supreme Court of Victoria. The defendant, Johnston, was convicted of intimidation, aggravated break and enter, and committing a serious indictable offence. The case concerned a significant criminal episode which included entering a residence, threatening the occupants, and causing them fear for their safety. The court was tasked with determining an appropriate sentence for Johnston’s serious criminal conduct.

The primary legal issue before the court was the appropriate sentencing for Johnston’s crimes, given their seriousness and the need to balance retribution, deterrence, and rehabilitation. The court considered the aggravating factors, such as the use of intimidation and the seriousness of the offences, alongside mitigating factors, such as Johnston’s background and potential for rehabilitation. The court also needed to ensure that the sentence reflected the gravity of the crimes committed.

In delivering its judgment, the court meticulously weighed the aggravating and mitigating factors. It emphasised the seriousness of the offences, noting the significant impact on the victims. The court highlighted the need for a sentence that would adequately deter Johnston and others from engaging in similar conduct. After careful consideration, the court determined that an aggregate term of imprisonment of five years and six months, with a non-parole period of four years, was appropriate. This sentence aimed to balance the need for punishment with the potential for Johnston’s rehabilitation.

The final orders of the court were that Johnston was to serve a total of five years and six months in prison, with a non-parole period of four years. The sentence reflected the gravity of the crimes and the need for significant deterrence and protection of the community.

Orders

Orders of the court

Aggregate term of imprisonment of 5 years 6 months with a non parole period of 4 years imprisonment.

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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Medium Neutral Citation:	R v Johnston [2019] NSWDC 607
Hearing dates:	12 February, 20 February, 18 April, 8 July and 20 September 2019
Decision date:	20 September 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 5 years 6 months with a non parole period of 4 years imprisonment.
Catchwords:	CRIME - SENTENCE - Intimidation - aggravated break and enter and commit serious indictable offence.
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW) s13(1); Crimes Act 1900 (NSW) s112(2)
Category:	Sentence
Parties:	Regina (Crown) Sarah Lee Johnston (Offender)
Representation:	Ms Martin (ODPP) Mr P. Cranney (Solicitor for the offender)
File Number(s):	2018/251817
Publication restriction:	Nil