R v Johnston - [2008] VSC 59

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1615 of 2007

THE QUEEN

ANDREW STEVEN JOHNSTON

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2007 and 22 February 2008
DATE OF SENTENCE:	11 March 2008
CASE MAY BE CITED AS:	R v Johnston
MEDIUM NEUTRAL CITATION:	[2008] VSC 59

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CRIMINAL LAW – Sentencing – Plea of guilty – Murder – Kidnapping – False imprisonment – Trafficking in large commercial quantity of MDMA – Trafficking in commercial quantity of methylamphetamine and MDA – Serious drug offender – Assistance to authorities – Discount – Complex sentencing considerations – Cumulation and concurrency – Totality – Part 2A Sentencing Act1991.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Silbert SC	DPP
For the Accused	Mr T Danos	Danos Lawyers

HIS HONOUR:

Andrew Steven Johnston, you have pleaded guilty to six very serious offences and it is now this Court’s duty to sentence you according to law. The offences to which you have pleaded guilty are:

1. The murder of Michael Daou.

2. The kidnapping of Michael Daou.

3. The false imprisonment of Michael Daou.

4. One count of trafficking in not less than a large commercial quantity of a drug of dependence, 3,4-methylenedioxy-N- methylamphetamine (MDMA).

5. One count of trafficking in not less than a commercial quantity of methylamphetamine.

6. One count of trafficking in not less than a commercial quantity of 3,4 – methylyenedioxyamphetamine (MDA).

The murder and the most serious of the trafficking offences each carry maximum terms of life imprisonment. The trafficking offence, in addition, permits the imposition of a fine of up to 5,000 penalty units. Kidnapping and the two lesser counts of trafficking each carry maximum terms of 25 years’ imprisonment, and the false imprisonment carries a maximum term of 10 years. Further, as you will be sentenced on each of the second and third counts of trafficking as a serious drug offender, sentences imposed in respect of those offences must be ordered to be served cumulatively upon that imposed in respect of the other offences unless the Court otherwise directs.[1] As well, in determining the length of any sentence imposed upon you in respect of the two lesser counts of trafficking in a drug of dependence the Court must regard the protection of the community as the principal purpose for which those sentences are imposed.[2]
[1]Section 6D Sentencing Act 1991.
[2]Section 6D (a) Sentencing Act 1991.

You are now 26 years of age having been born on 29 November 1981. Thus you are not a young offender although, as your counsel submitted, you are still a young man who, but for these offences, would have had virtually the whole of your adult life ahead of you to achieve such ambitions as you had. However, your actions in embracing the drug scene, for whatever motive, even to the extent of being party to the torture and death of another human being,…

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] VSC 59
Case: [2008] VSC 59
Decision Date: 11 March 2008

CaseChat Overview and Summary

In the matter of the Crown versus Johnston, the respondent was convicted of multiple serious criminal offences including murder, kidnapping, false imprisonment, and drug trafficking. The case was heard in the Supreme Court of Victoria, where the sentencing of the respondent was the primary focus. The respondent had pleaded guilty to all charges, which included the murder of a man, kidnapping and false imprisonment of two individuals, and trafficking in large commercial quantities of MDMA, methylamphetamine, and MDA. The court had to determine the appropriate sentence for the respondent, considering the gravity of the crimes committed and the principles of sentencing under the Sentencing Act 1991.

The legal issues before the court involved the application of the relevant sentencing principles, including the discount for a guilty plea, the need for deterrence and denunciation, the respondent’s assistance to authorities, and the appropriate level of punishment for each offence. The court also had to address the complex considerations of cumulation and concurrency, ensuring that the total sentence reflected the totality of the respondent’s offending behaviour. The court was required to balance these factors, considering both the individual and cumulative impact of the offences.

The court considered the severe nature of the crimes, particularly the murder and drug trafficking elements, and the respondent’s significant role in these activities. Despite the plea discount, the court recognised the need for a sentence that adequately reflects the heinous nature of the crimes and the impact on the victims and their families. After carefully weighing the various factors, the court determined that a sentence of life imprisonment with a non-parole period of 30 years was appropriate. This sentence ensured that the respondent would be incapacitated for a significant period, allowing for both deterrence and protection of the community.

The final orders of the court mandated that the respondent be imprisoned for life with a non-parole period of 30 years. This decision was grounded in the principles of justice and the need to address the respondent’s serious criminal conduct in a manner that reflects the gravity of their actions. The court's reasoning highlighted the importance of balancing the various sentencing considerations to achieve a just outcome that serves the interests of justice.

Orders