R v Johnstone - [2017] ACTSC 304

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Johnstone
Citation:	[2017] ACTSC 304
Hearing Date:	12 October 2017
DecisionDate:	12 October 2017
Before:	Penfold J
Decision:	See [14] – [19] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re‑sentence – breach of good behaviour order by further offending – driving a stolen and unregistered motorbike – possession of methamphetamine – possession of a knife – drug driving – dysfunctional upbringing – cannabis use from young age – Solaris program being undertaken in custody – residential rehabilitation after release also recommended – offender re‑sentenced – non‑parole period to end at end of Magistrates Court sentences currently being served.
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 110
Parties:	The Queen (Crown) Michael John Johnstone (Offender)
Representation:	Counsel Mr S McLaughlin (Crown) Ms H Russell (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) Limited (Offender)
File Number:	SCC 217 of 2015

The offences

In February 2016, I sentenced Michael Johnstone to a total of 27 months imprisonment for an aggravated burglary, two damage property offences, one theft and one offence of riding in a motor vehicle dishonestly and without consent. The sentence was backdated to account for pre-sentence custody and was suspended after 11 months had been served, subject to a good behaviour order for 18 months. That good behaviour order would have expired last month.

Before that, however, Mr Johnstone committed two new series of offences that breached the good behaviour order.

On 4 August 2016, he was arrested by police who had observed him driving a stolen and unregistered motorbike. He was found to be in possession of a small quantity of methamphetamine and a knife and, when tested, also had methamphetamine in his system. Those events gave rise to a number of separate charges, to which Mr Johnstone pleaded not guilty. As a result of adverse findings about the lawfulness of Mr Johnstone's arrest, a number of the charges were dropped, but the five charges arising from the facts I have outlined were found proven in the Magistrates Court, and yesterday (11 October 2017) Mr Johnstone was sentenced by Magistrate Cook to a total of 10 months imprisonment, all to be served in full-time custody.

After his arrest in August 2016, Mr Johnstone remained in custody until granted bail on 1 November 2016. He failed to appear in the Magistrates Court after that at least once, and a warrant was issued. On 6 February this year he was again arrested, on the warrant and also in relation to new offending involving obstructing police, assault occasioning actual bodily harm, unauthorised possession of a firearm and going equipped for theft, in that he had a lock-picking tool with him. He has been in custody ever since.

Mr Johnstone pleaded guilty to the 2017 charges, and was sentenced by Magistrate Theakston in August this year to imprisonment for 105 days, backdated to the date of…

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 Johnstone

Details

AGLC: R v Johnstone [2017] ACTSC 304
Case: [2017] ACTSC 304
Decision Date: 12 October 2017

CaseChat Overview and Summary

The case of R v Johnstone was heard in the Supreme Court of Queensland. The defendant, Johnstone, had previously been sentenced for a series of criminal offences and was now subject to a review of that sentence due to additional offending. This additional offending included driving a stolen and unregistered motorbike, possession of methamphetamine, possession of a knife, and drug driving. The court was tasked with re-sentencing Johnstone, taking into account his dysfunctional upbringing, his early use of cannabis, and his participation in the Solaris program while in custody, with a recommendation for residential rehabilitation following his release.

The legal issues that the court had to address included whether the additional offending warranted a re-sentencing, the appropriate length of the new sentence, and how to incorporate the offender's personal circumstances and rehabilitation efforts into the sentencing process. The court had to balance the need for punishment and deterrence with the potential for rehabilitation, especially given Johnstone's ongoing efforts to address his criminal behaviour and substance abuse issues.

The court determined that the additional offending did warrant a re-sentencing. In doing so, it took into account Johnstone's dysfunctional upbringing and early substance use, his participation in the Solaris program in custody, and the recommendation for residential rehabilitation post-release. The court re-sentenced Johnstone, setting a non-parole period that would conclude at the end of the Magistrates Court sentences he was currently serving. This decision reflects a considered approach to sentencing, aiming to address both the offender's criminal conduct and his potential for rehabilitation.

The final orders of the court are detailed in paragraphs [14] to [19] of the judgment. These orders outline the specific terms of Johnstone's re-sentence, ensuring that his new sentence aligns with the legal principles applied in this case.

Orders

Orders of the court

See [14] – [19] below.

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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