Regina v George and Johnson - [1999] NSWCCA 243

CITATION: Regina v George & Johnson [1999] NSWCCA 243

FILE NUMBER(S): CCA 60637/98; 60647/98

HEARING DATE(S): 30 June 1999

JUDGMENT DATE:
30 June 1999

PARTIES :

Regina v Scott Tony George
Regina v Brett Johnson

JUDGMENT OF: Sully J; Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/61/0101

LOWER COURT JUDICIAL OFFICER: Cooper DCJ

COUNSEL: Appellants - in person
R. A. Hulme - Crown

SOLICITORS: Appellants - in person
C. K. Smith - Crown

CATCHWORDS:

ACTS CITED: Crimes Act 1900

DECISION: Leave to appeal granted; Appeals dismissed

IN THE COURT OF
CRIMINAL APPEAL
60637/98
60647/98
SULLY J
BELL J
30 June 1999

REGINA v Scott Tony George
REGINA v Brett JOHNSON
JUDGMENT

1 SULLY J: On 21 November 1997 Scott Tony George and Brett Johnson stood together for sentence before his Honour Judge Cooper in the District Court at Sydney. Each of them had been previously indicted for robbery with wounding, an offence contravening s 96 of the Crimes Act 1900 and attracting upon conviction a statutory maximum penalty of penal servitude for twenty-five years.
2   Each had pleaded not guilty. Each had been put upon his trial accordingly. Each had been found guilty by the verdict of the jury.
3   His Honour imposed upon each of the two men a sentence of penal servitude of nine years but somewhat differently apportioned as between the two of them. In the case of Mr George, the sentence was apportioned between a minimum term of five years and six months and an additional term of three years and six months. In the case of Mr Johnson, the sentence was apportioned between a minimum term of five years and nine months and an additional term of three years and three months. The minimum term in each case was dated differently as to its commencement, but that is explicable by reason of pre-sentence custody in Mr Johnson's case.
4   It is at first glance not easy to discern the basis upon which his Honour apportioned the common sentences in different ways but it seems to be a correct understanding of his Honour's relevant reasoning that Mr George was serving at the relevant time a sentence that had been imposed upon him in December 1996 at the Penrith District Court and in connection with two associated matters of aggravated break, enter and steal. It is, I think, a fair inference, from a careful reading of the remarks on sentence, that his Honour's perception of Mr George's situation was that the principle of totality required some shading, if I might put it that way, of the apportionment of his aggregate sentence by comparison with that of Mr Johnson, who was not then serving a sentence of any kind.
5   The relevant facts are within a small compass. They can be canvassed sufficiently for present purposes by extracting them as follows from the remarks on sentence of his Honour Judge Cooper:

"On the night in question the victim, Wayne Robert James, met the…

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.

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Details

Case: [1999] NSWCCA 243
Decision Date: 30 June 1999

CaseChat Overview and Summary

Scott Tony George and Brett Johnson, represented in person, appealed against their sentences imposed by Judge Cooper in the District Court, following their convictions for robbery with wounding. Each appellant argued that the sentence imposed was "very harsh" and did not take into account certain mitigating factors. The legal issues before the court were whether the sentences imposed by the District Court Judge contained any error of law and if the appellants' claims of error were valid. The court examined the sentences and the reasoning behind them, considering the appellants' arguments regarding the harshness of the sentences and the mitigating factors presented. The court concluded that the District Court Judge had considered the relevant factors and imposed sentences that were proportionate to the gravity of the offences committed. The appeals were dismissed, and leave to appeal was granted.

Orders