McPHERSON JA: The applicant was convicted in the District Court on pleas of guilty to charges of unlawful use of a motor vehicle with a circumstance of aggravation, namely that it was used for the purpose of facilitating the commission of an indictable offence and of armed robbery in company.

He was sentenced to three years imprisonment for the unlawful use of a motor vehicle and six years imprisonment for the robbery offence. He was recommended to be considered for release on parole on 12 March 2001. These sentences were to be served cumulatively upon the sentences he is currently serving, that is a sentence of 12 months imprisonment imposed on 7 October 1997 in the Magistrates Court and a sentence of four years imprisonment imposed on 12 September 1997 in the District Court. The current sentences extend the head sentence by six years and the non-parole period by two years.

The applicant was 17 years old at the time of the current offences and 18 at the time of sentencing. The circumstances of the offences were that they occurred when the applicant and two co-offenders stole a locked car from outside a block of home units. This was the vehicle later used in the robbery of a restaurant. The applicant and a co-accused entered the restaurant where the applicant threatened the staff with a loaded firearm while his co-accused removed the tray from the till together with its contents of some $270. The rifle was discharged in the course of the robbery, but not in the direction of the staff. The applicant then escaped with his companions in the stolen vehicle which was being driven by the second co-accused.
The plea of guilty to these offences came only about a week after the trial had been listed for hearing. The applicant now seeks leave to appeal against his sentence on the ground that, essentially, it is manifestly excessive as ignoring the totality principle. His counsel has itemised a number of personal mitigating circumstances, which it was submitted should have been taken into account in imposing the sentence. His youth is one of those put forward in a prominent way. The applicant, it may be added, was raised by his mother and to some extent his grandmother, and had had no contact with his father after his parents separated while he was still at primary school. He has been in and out of youth detention centres since he committed his first offence at the age of 14. He has been using illegal drugs since he was 13 years old, progressing from marijuana to amphetamines and then on to heroin, which by age 17 he was often injecting as frequently as twice a day.

The applicant draws attention to the fact that the robbery was committed to get money for heroin and…

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 [1998] QCA 469
Case: [1998] QCA 469
Decision Date: 3/12/1998

CaseChat Overview and Summary

The case of R v Johnston involved the applicant, Rory Dean Johnston, who had been convicted in the District Court on pleas of guilty to charges of unlawful use of a motor vehicle with a circumstance of aggravation and armed robbery in company. Johnston was sentenced to three years imprisonment for the unlawful use of a motor vehicle and six years imprisonment for the robbery offence. The sentences were to be served cumulatively upon the sentences he was already serving, extending the head sentence by six years and the non-parole period by two years. Johnston sought leave to appeal against his sentence, arguing that it was manifestly excessive and ignored the totality principle.

The legal issues before the Court of Appeal included whether the sentence imposed was manifestly excessive, whether the totality principle had been adequately considered, and whether the sentences should have been imposed concurrently with the sentences Johnston was already serving. Johnston's counsel argued that his youth, his troubled upbringing, his history of drug abuse, and the fact that this was his first offence involving violence, should have been taken into account. The Crown argued that the severity of the crimes, particularly the use of a loaded firearm in a public place, justified the sentences imposed.

The Court of Appeal found that the sentence of imprisonment for six years for armed robbery was not beyond range, nor was the sentence of three years for the offence of unlawful use of a motor vehicle. While the Court might have been prepared to impose a somewhat lower sentence for the armed robbery, it did not see any justification for altering the sentence or reducing the date for parole eligibility. The totality principle was considered, but the Court found that the total head sentence of 10 years was not severe in all the circumstances. The application for leave to appeal was therefore refused.

In conclusion, the Court of Appeal upheld the sentences imposed by the District Court. The orders were as indicated by Mr Justice McPherson.

Orders