R v Johnstone - [2007] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 362 of 2006

THE QUEEN
	v
DWAYNE JOHNSTONE

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JUDGES:	MAXWELL P, KELLAM JA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 September 2007
DATE OF JUDGMENT:	4 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 193

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Criminal Law – Sentencing – Aggravated burglary and theft – Appellant minor participant – Previous convictions for theft, handling stolen goods and assault with intent to rob – Whether total effective sentence (3 ½ years with non-parole period of 2 ½ years) manifestly excessive – Whether mental functioning shown by expert evidence to have been impaired at the time of offending – Whether Verdins principles applicable – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr J P Dickinson	Victoria Legal Aid

MAXWELL P:

The appellant, Dwayne Johnstone, pleaded guilty to one count of aggravated burglary and one count of theft. Judge Lawson in the County Court sentenced him to three years' imprisonment on count 1 and one year's imprisonment on count 2, with six months of the latter sentence to be cumulative on the former. This amounted to a total effective sentence of three-and-a-half years, and the judge fixed a non-parole period of two years. Her Honour also ordered that Mr Johnstone be disqualified from driving for a period of two years from 10 November 2006.

Factual background

(What follows is taken from the Crown summary, which was before the sentencing court). In 2003, Noradin Mustafa was the owner of a milk bar situated at 23 Olsen Place in Broadmeadows. He employed Koda Hamoud there on a full time basis and Ceyla Tariman on a part-time basis.

Some time after 11.30 pm on Saturday 20 December 2003, three men entered the milk bar, violently overpowered Hamoud and Tariman, took them upstairs and tied them up. These three men, together with three others, then stole large quantities of cigarettes, quantities of phone cards, cigarette lighters, cash, stamps and illegal tobacco called “chop chop”, upon which no government duty had been paid. They also stole Hamoud’s white Ford Taurus sedan.

Once the thieves left the premises, the two men untied themselves and alerted the police. A police car on patrol saw the convoy of at least three cars and gave chase. Two cars, full of stolen goods, were abandoned by the thieves and recovered by the police. One of these cars was the stolen car belonging to Hamoud. The third car got away. A fingerprint was found on a packet of cigarettes discovered in the abandoned cars. Eventually this was matched with the fingerprint of the appellant. Police flew to New South Wales and interviewed him on 12 July 2005.

In that interview he told police that he had been contacted by a friend to fly to Melbourne to help move some chop chop, and that he would be paid $800 for doing it. When he flew to…

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 [2007] VSCA 193
Case: [2007] VSCA 193
Decision Date: 4 September 2007

CaseChat Overview and Summary

The appellant, Johnstone, was convicted of aggravated burglary and theft, offences committed when he was a minor participant. The case was heard in the court of appeal. Johnstone appealed against his sentence, arguing it was manifestly excessive, and that his mental functioning was impaired at the time of the offending. The court was required to determine whether the total effective sentence, which was 3 ½ years with a non-parole period of 2 ½ years, was appropriate given the circumstances, and whether the principles outlined in Verdins were applicable.

The court examined the principles set out in Verdins and noted that the sentence was not manifestly excessive. The court found that the totality principle was satisfied, and the sentence was not disproportionate when considering the totality of the offending and the appellant's criminal history, which included previous convictions for theft, handling stolen goods, and assault with intent to rob. The court considered expert evidence regarding Johnstone's mental functioning, but found it did not warrant a reduction in sentence. The appeal was dismissed.

In light of the appeal being dismissed, the court confirmed the original sentence, which was 3 ½ years imprisonment with a non-parole period of 2 ½ years. The court held that the sentence was appropriate and not manifestly excessive, considering the totality of the offending and the appellant's criminal history. The court found that the principles in Verdins applied and that the sentence was proportionate to the offending.

Orders