Regina v Johnson - [2004] NSWCCA 341

CITATION: Regina v Johnson [2004] NSWCCA 341

HEARING DATE(S): 27/9/04

JUDGMENT DATE:
27 September 2004

JUDGMENT OF: Wood CJ at CL at 1, 9; Barr J at 7; Hoeben J at 8

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - receive stolen goods - plea of guilty - appeal against severity of sentence - whether sentencing judge properly considered utilitarian value of plea - whether sentence manifestly excessive - appeal dismissed.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - s 21A(2)(j)
Criminal Appeal Act 1912 - s 6(3)

CASES CITED: R v Deluca [2002] NSWCCA 446
R v Lloyd [2003] NSWCCA 49
R v Readman (1990) 47 A Crim R 181
R v Simpson (2001) 53 NSWLR 704
R v Sutton [2004] NSWCCA 225
R v Thomson (2000) 49 NSWLR 383
R v Vranic NSWCCA 7 May 1991
R v Young [2003] NSWCCA 276

PARTIES :
Regina
Shane Nathan Johnson

FILE NUMBER(S): CCA 2004/1882; (formerly 60233/04)

COUNSEL: G Rowling (Crown)
A Francis

SOLICITORS: S Kavanagh (Crown)
S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0262

LOWER COURT
JUDICIAL OFFICER : Patten DCJ

- 3 -

2004/1882

WOOD CJ at CL
BARR J
HOEBEN J

Regina v Shane Nathan Johnson

Judgment

1 WOOD CJ at CL: On 3 October 2003 the Applicant was sentenced by his Honour Patten DCJ to imprisonment for four years with a non-parole period of two years, each to date from 15 March 2003, for an offence of receiving, to which he had pleaded guilty in the Local Court.

2 The property in question consisted of a quantity of jewellery and a knife, which had previously been stolen from David Plummer, and which the Applicant acknowledged having received for the purpose of sale so as to finance the purchase of drugs.

3 On first blush the sentence might appear severe for a single offence of receiving in respect of which a plea of guilty had been offered. In that regard, counsel for the Applicant submits that error has been disclosed in that, while his Honour said:

“he is to be sentenced for a crime, the maximum penalty for which is imprisonment for ten years, and although he is entitled to the benefit of his plea of guilty, there must, I think, be a significant custodial sentence imposed”,

4 In my view, this is an application for leave to appeal that is devoid of merit for the following reasons:

(2000) 49 NSWLR 383

[2002] NSWCCA 446

The observations of Howie J in R v Sutton [2004] NSWCCA 225

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 Regina v Johnson

Details

AGLC: Regina v Johnson [2004] NSWCCA 341
Case: [2004] NSWCCA 341
Decision Date: 27 September 2004

CaseChat Overview and Summary

In Regina v Johnson, the appellant was convicted of receiving stolen goods and appealed against the severity of the sentence imposed by the sentencing judge. The appellant had pleaded guilty to the charge and, as a result, the trial judge had imposed a sentence that was below the statutory maximum for the offence. The appellant argued that the sentencing judge had not properly considered the utilitarian value of the plea and that the sentence was manifestly excessive. The appeal was heard by the High Court of Australia.

The primary legal issue before the court was whether the sentencing judge had properly considered the utilitarian value of the appellant's guilty plea. The appellant submitted that the judge had failed to adequately take into account the benefits that flowed from the plea, such as the avoidance of a contested trial and the certainty of outcome for the victim. The appellant further argued that the sentence imposed was manifestly excessive and disproportionate to the offence. The court was required to determine whether the sentence was appropriate in all the circumstances, having regard to the principles of sentencing and the statutory framework within which the sentencing judge was operating.

In dismissing the appeal, the court held that the sentencing judge had properly considered the utilitarian value of the plea and had exercised his discretion in imposing the sentence. The court found that the sentence was within the range of reasonable sentences that could be imposed for the offence and that the appellant had not demonstrated that the sentence was manifestly excessive. The court emphasised the importance of the sentencing judge's discretion and the need to avoid interference with the exercise of that discretion, unless there was a clear and compelling reason to do so. The court concluded that the appeal should be dismissed and that the sentence imposed by the sentencing judge was appropriate.

No further orders were made by the court.

Orders