R v Johnston (a pseudonym) [No 2] - [2019] NSWDC 410

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Johnston (a pseudonym) [No 2] [2019] NSWDC 410
Hearing dates: 11 June 2019
Decision date: 11 June 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of sixteen years 6 months with a non parole period of twelve years.

Catchwords: SENTENCE — Sexual intercourse with child - assault with act of indecency - child is offender’s step daughter - indecent assaults on other children.
SENTENCE - Sentencing factors - Acceptance of responsibility after trial – need for retributive and different sentences – assessment of objective seriousness – guidance offered by standard non parole periods – difficulty reconciling standard non parole periods for sexual assault and indecent assault - impact on victims – expression of remorse too late – no antecedents – need for custodial sex offender programmes – totality – aggregate sentence.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: BT v R [2010] NSWCCA 267
Gavel [2014] NSWCCA 56
Markarian (2005) 228 CLR 357
Muldrock (2011) 244 CLR 120
NJK [2011] NSWCCA 151
R v Herring (1956) 73 WN (NSW) 203
R v Johnston (a pseudonym) [2019] NSWDC 61.
R v Gavel [2014] NSWCCA 56
R v Thompson (2000) 49 NSWLR 383
Ryan v The Queen (2001) 206 CLR 267
Tepania v R [2018] NSWCCA 247
Weininger v The Queen (2003) 212 CLR 629
Category: Sentence
Parties: Phillip Johnston (Offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr D Coyne (for the offender)
Ms N Keay (for the Director of Public Prosecutions)
Solicitors:
Maguire McInerney Lawyers (for the offender)

File Number(s): 2017/00187461
Publication restriction: The Offender is referred to in this judgment by a pseudonym.The Complainants are referred to in this judgment by pseudonyms,The names of the complainants are not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900.

Judgment – ex tempore revised

After a trial at Wollongong District Court a jury found Phillip Johnston (a pseudonym) guilty of six sexual offences where his stepdaughter, Christine was the complainant. Each of the offences occurred at the family home near Wollongong. Five occurred in the latter half of 2008 to March 2009. The child was then aged seven. They include four (4) counts of sexual intercourse with a child under ten: s 66A Crimes Act 1900 and one count of assault and commit act of indecency on a child under ten: s 61M(2) Crimes Act 1900. A sixth count of assault and commit act of indecency on child under ten. The child was then aged ten. Section 61M(2) had been amended during that period.
I note that after the trial Johnston, through his counsel and psychologist, has accepted responsibility for his crimes. He has also accepted the original statement of facts put forward as part of the Crown case statement prior to the trial. That acceptance accords with not just the jury's verdict but my own understanding…

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 (a pseudonym) [No 2]

Details

AGLC: R v Johnston (a pseudonym) [No 2] [2019] NSWDC 410
Case: [2019] NSWDC 410
Decision Date: 11 June 2019

CaseChat Overview and Summary

The case of R v Johnston involved an appeal against sentence, where the respondent was convicted of sexual intercourse with a child and multiple counts of assault with an act of indecency. The victims were the offender's stepdaughter and other children. The appeal focused on the length and structure of the sentence imposed. The High Court of Australia was tasked with determining whether the sentence was appropriate in light of the legal principles governing such offences.

The central legal issues before the court were the appropriate weight to be given to various sentencing factors, including the offender's acceptance of responsibility after trial, the need for both retributive and deterrent sentences, the assessment of the objective seriousness of the offences, and the guidance offered by standard non-parole periods. The court had to reconcile the differing non-parole periods applicable to the sexual assault and indecent assault charges, considering the impact on the victims and the offender's remorse, which was expressed too late. The offender had no prior criminal record, but the court considered the need for custodial sex offender programs. The totality principle and the aggregate sentence were also evaluated.

The court held that the sentence should reflect both the gravity of the offences and the need for specific deterrence, given the offender's likelihood of reoffending without appropriate treatment. It found that while the offender had no criminal antecedents and expressed remorse belatedly, the objective seriousness of the crimes warranted a substantial custodial sentence. The court concluded that an aggregate sentence of sixteen years and six months, with a non-parole period of twelve years, was appropriate. The sentence was intended to adequately address the retributive, deterrent, and rehabilitative aspects of sentencing, while also providing sufficient protection to the community.

Orders

Orders of the court

Aggregate sentence of sixteen years 6 months with a non parole period of twelve years.

Background

Background to the litigation

Full text does not contain this section.

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 (a pseudonym) [No 2] [2019] NSWDC 410
Hearing dates:	11 June 2019
Decision date:	11 June 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of sixteen years 6 months with a non parole period of twelve years.
Catchwords:	SENTENCE — Sexual intercourse with child - assault with act of indecency - child is offender’s step daughter - indecent assaults on other children. SENTENCE - Sentencing factors - Acceptance of responsibility after trial – need for retributive and different sentences – assessment of objective seriousness – guidance offered by standard non parole periods – difficulty reconciling standard non parole periods for sexual assault and indecent assault - impact on victims – expression of remorse too late – no antecedents – need for custodial sex offender programmes – totality – aggregate sentence.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	BT v R [2010] NSWCCA 267 Gavel [2014] NSWCCA 56 Markarian (2005) 228 CLR 357 Muldrock (2011) 244 CLR 120 NJK [2011] NSWCCA 151 R v Herring (1956) 73 WN (NSW) 203 R v Johnston (a pseudonym) [2019] NSWDC 61. R v Gavel [2014] NSWCCA 56 R v Thompson (2000) 49 NSWLR 383 Ryan v The Queen (2001) 206 CLR 267 Tepania v R [2018] NSWCCA 247 Weininger v The Queen (2003) 212 CLR 629
Category:	Sentence
Parties:	Phillip Johnston (Offender) Director of Public Prosecutions
Representation:	Counsel: Mr D Coyne (for the offender) Ms N Keay (for the Director of Public Prosecutions) Solicitors: Maguire McInerney Lawyers (for the offender)
File Number(s):	2017/00187461
Publication restriction:	The Offender is referred to in this judgment by a pseudonym.The Complainants are referred to in this judgment by pseudonyms,The names of the complainants are not to be published, nor is any other material that could lead to the identification of that complainant: s578A of the Crimes Act 1900.