Regina v Johnstone - [2000] NSWCCA 129

CITATION: Regina -v- Johnstone [2000] NSWCCA 129

FILE NUMBER(S): CCA 60355 of 1999

HEARING DATE(S): 12/04/00

JUDGMENT DATE:
12 April 2000

PARTIES :

Regina
Dean Andrew Johnstone

JUDGMENT OF: Dowd J at 1; Hulme J at 19

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0120

LOWER COURT JUDICIAL
OFFICER : Coleman DCJ

COUNSEL : Mr Berman - Crown
Mr Manuel - Applicant

SOLICITORS: S E O'Connor - Crown
J Manuel - Applicant

CATCHWORDS: Sentence appeal - Robbery whilst armed with an offesive weapon - Failure to give sufficient credit for plea and cooperation

LEGISLATION CITED: Crimes Act 1900

CASES CITED:
R -v- Ellis (9186) 6 NSWLR 603

DECISION: Leave granted; Sentence imposed on the first and second count quashed

IN THE COURT OF
CRIMINAL APPEAL
60355/99
HULME J
DOWD J

WEDNESDAY 12 APRIL 2000
REGINA v DEAN ANDREW JOHNSTONE

1 DOWD J: This application for leave to appeal is in respect of three counts of robbery whilst armed with an offensive weapon, contrary to section 97(1) of the Crimes Act 1900 ("the Act"). Each offence carries a maximum penalty of penal servitude for twenty years.
2 The applicant pleaded guilty before Coleman DCJ at the Newcastle District Court and was sentenced to a minimum term on the first count of three years and six months penal servitude, and an additional term of two years, on the second count, four years minimum term and an additional term of two years and six months and on the third count a minimum term of four and a half years and an additional term of three years. The sentences being imposed in that fashion as an application of the R v Pearce 1998, 72 ALJR, at 1416. The application is made on several bases. The first ground being that the sentencing judge failed to take into account the applicant's voluntary admissions in relation to the first two offences and did not have regard to the principles contained in R v Ellis, 1986, 6 NSWLR at 603.
3   The second ground is in effect an extrapolation of that ground which is in failing to properly consider the applicant's confessions his Honour derogated from the significance of the guilty pleas.
4   The facts of the matter have been extensively set out in a very careful judgment by his Honour Coleman DCJ in his remarks on sentence of 19 May 1999. However the offences which were similar in nature involved the applicant being armed with a blood-filled syringe and robbing his victims cash. The second offence, some six days later, when armed similarly with a blood-filled syringe the applicant robbed a male person of $370 from a pharmacy, and the third offence occurred the following day on 24 January in that he robbed a young woman of $435 from a chain store.
5   Each of the offences involving a blood-filled syringe must have been for each of the victims extremely serious and terrifying incidents. The prevalence of this offence is serious. The effect is…

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 Johnstone

Details

AGLC: Regina v Johnstone [2000] NSWCCA 129
Case: [2000] NSWCCA 129
Decision Date: 12 April 2000

CaseChat Overview and Summary

In Regina v Johnstone, the respondent appealed against his sentence for robbery committed while armed with an offensive weapon. The respondent pleaded guilty to the offence, resulting in a reduction in his sentence. The appeal centred on the trial judge's failure to give sufficient credit for the respondent's early guilty plea and his cooperation with the police. The court was tasked with determining whether the trial judge's failure to adequately account for these factors warranted an appeal against the sentence imposed.

The primary legal issue the court had to address was whether the trial judge's failure to sufficiently credit the respondent's early guilty plea and cooperation amounted to a significant error, warranting a reduction in his sentence. The court also had to consider the appropriate extent of the credit that should have been given and whether this error was substantial enough to impact the overall sentence.

The court found that the trial judge did not adequately consider the principles of sentencing in relation to the respondent's plea and cooperation. The court held that the trial judge's failure to give sufficient credit for these factors amounted to a significant error. The court further determined that the appropriate credit that should have been given would have resulted in a sentence of imprisonment for a shorter period. The appeal was allowed, and the sentence was varied to reflect the appropriate credit for the respondent's plea and cooperation.

The court ordered that the respondent's sentence be reduced by a specified period, reflecting the appropriate credit for his early guilty plea and cooperation. The sentence was adjusted to a term of imprisonment that took into account the factors that the trial judge had failed to adequately consider.

Orders