Legal Research
Cases
R v Johnston

R v Johnston

Case [2008] VSCA 133 29 July 2008

Sentencing

Manifest Excessiveness

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 78 of 2008

THE QUEEN
	v
ANDREW STEVEN JOHNSTON

---

JUDGES:	BUCHANAN, NETTLE and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 July 2008
DATE OF JUDGMENT:	29 July 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 133

---

Criminal Law – Sentencing – Manifest excessiveness – Murder, kidnapping, false imprisonment and trafficking in a large commercial and commercial quantities of MDMA – Applicant sentenced to 23 years’ imprisonment with a non-parole period of 15 years – Applicant’s plea of guilty and subsequent evidence given to assist authorities – Complex sentencing considerations – Relevant weight to be applied to discount – Appeal allowed – Applicant re-sentenced to a term of 16 years with a non-parole period of 11 years – R v Markarian (2005) 228 CLR 357, R v Perrier (No. 2) [1991] 1 VR 717 and R v Nagy [1992] 1 VR 637 and R v Golding (1980) 24 SASR 161 referred to – Sentencing Act 1991, ss 6AAA, 135.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert S.C.	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr T Danos	Tony Danos Solicitor

BUCHANAN JA:

I will ask Nettle JA to deliver the first judgment in this matter.

NETTLE JA:

This is an application for leave to appeal against a total effective sentence of 23 years' imprisonment, with a non-parole period of 15 years, that was imposed on the applicant on pleading guilty to one count of murder, one count of kidnapping, one count of false imprisonment, and counts of trafficking in a large commercial quantity of MDMA, trafficking in a commercial quantity of methylamphetamine and trafficking in a commercial quantity of MDMA. The sole ground of the application is that the individual sentences, total effective sentence and non-parole period are manifestly excessive.

The facts

The applicant was born on 29 November 1981 and was for some time a talented athlete. He competed at state and national levels until knee injuries forced his retirement in 2004. He completed year 12 at school and went on to university to study accounting, but he gave that up after only about 18 months, and then was employed in various positions until he became involved in the drug scene in 2006.

To begin with, his involvement in drugs was as a low-level dealer in ecstasy. That changed after he was introduced to Adam Hargrave in May 2006. Hargrave and his father, Greg Hargrave, were members of a syndicate involved in the manufacture and wholesale distribution of a range of illicit drugs, including ecstasy (MDMA), amphetamine, cocaine and crystal methamphetamines (ice). The manufacturing side of the operation was managed by Ngoc Bui and Kevin Ng out of premises in Endeavour Hills. The Hargraves conducted sales and distribution out of a logistics warehouse in Scoresby, from which they also operated a transport business under the name of Logistics Plus.

Adam Hargrave engaged the applicant as his lieutenant, in effect…

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] VSCA 133
Case: [2008] VSCA 133
Decision Date: 29 July 2008

CaseChat Overview and Summary

The appeal heard by the Court was brought by the applicant, Johnston, who was convicted of multiple serious offences including murder, kidnapping, false imprisonment, and trafficking of large quantities of MDMA. The trial court had sentenced Johnston to 23 years imprisonment with a non-parole period of 15 years. The applicant appealed on the basis that the sentence was manifestly excessive. The appeal was heard by the Court of Appeal which had to determine whether the original sentence was indeed manifestly excessive and, if so, what an appropriate sentence would be.

The court considered the principle of manifest excessiveness in sentencing, referencing previous cases such as R v Markarian, R v Perrier, R v Nagy, and R v Golding. It examined the seriousness of the offences, the applicant's plea of guilty and subsequent cooperation with authorities, and the need to balance these factors with the discount for the plea. The court concluded that the original sentence did not sufficiently reflect the discount for the guilty plea and the applicant’s cooperation, and that it was indeed manifestly excessive.

In light of these considerations, the Court allowed the appeal and re-sentenced Johnston to 16 years imprisonment with an 11-year non-parole period. The court underscored the importance of ensuring that sentences reflect the totality of the circumstances, including the discount for a guilty plea and any mitigating factors, while also maintaining a balance between punishment and deterrence. The Court’s decision provides clarity on the application of the manifest excessiveness principle and the appropriate weight to be given to a guilty plea and cooperation with authorities.

Orders