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Court of Criminal Appeal 16 December 1999

Regina v Jason Lisle JOHNSON

[1999] NSWCCA 431

Theft & property
CRIMINAL LAW BREAK, ENTER AND STEAL PLEAS OF GUILTY TO 7 OFFENCES APPEAL AGAINST SEVERITY DISMISSED HELD: NO SUCH ERROR

Citation: Regina v Jason Lisle JOHNSON [1999] NSWCCA 431
Court: Court of Criminal Appeal, New South Wales
Date: 16 December 1999
Judge(s): Spigelman CJ, Grove J, Sully J

Background

The applicant pleaded guilty in the District Court at Campbelltown to seven counts of breaking, entering and stealing, each carrying a statutory maximum of 14 years' penal servitude. He also asked the sentencing judge to take into account 18 further offences, including additional break, enter and steal matters, as well as offences involving prohibited drugs, unlicensed driving, possessing suspected stolen goods, and entering enclosed lands.

The applicant was 26 years old at the time of sentencing and had an extensive criminal record dating back to age 16, including numerous prior entries for break, enter and steal offences. Despite that record, he presented strong subjective circumstances, including a troubled personal history and a willingness to enter a residential rehabilitation community.

Judge Ford sentenced the applicant on 4 February 1999, imposing an effective total sentence of six years' penal servitude, structured as a minimum term of three years and an additional term of three years, with all sentences running concurrently. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive and, separately, that the sentencing judge erred in failing to consider his eligibility under the Drug Court Act 1998 (NSW).

  • Whether the total effective sentence of six years' penal servitude was manifestly excessive given the volume and nature of the offences, the applicant's antecedents, and his subjective circumstances.
  • Whether the sentencing judge erred by failing to assess the applicant's eligibility for referral to the Drug Court under the Drug Court Act 1998 (NSW).

Decision

On the question of manifest excess, Sully J (with whom Spigelman CJ and Grove J agreed) found the sentences were not manifestly excessive. The Court considered the pattern of offending, the objective criminality involved, the applicant's prior record, and the statutory maximum. An effective total of six years for what amounted to 25 separate offences did not call for appellate intervention. The Court also noted that the sentencing guidelines issued that same morning in a companion guideline judgment made the sentences even more sustainable.

On the Drug Court ground, the critical timing issue was determinative. The Drug Court Act 1998 came into operation on 5 February 1999, which was the day after sentence was passed. Accordingly, the Act was not yet in force when the applicant was sentenced, and no obligation could arise under it at that time.

Sully J also examined what had occurred in the sentencing proceedings. The sentencing judge had raised, apparently without advance notice to either party, the possibility that the applicant might wish to consider the Act once it came into force. Both the applicant's legal representative and the Crown appeared to have been taken by surprise. Sully J inferred that the applicant's representative had considered the suggestion, identified potential problems fitting the applicant's residential circumstances within the relevant regulation, and made a considered decision to finalise sentencing rather than seek an adjournment. No application for an adjournment was made.

The Court found no error on the part of the sentencing judge. His Honour had done no more than speculate about the possible availability of a Drug Court reference in the future. In those circumstances, no demonstrated error warranted appellate intervention.

Orders Made

  • Leave granted to the applicant to appeal against the sentences passed in the District Court.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an effective six-year sentence for a prolific offender with 25 break, enter and steal-related matters (seven indicted, 18 taken into account) was within the appropriate range and did not warrant intervention.
  • A sentencing judge cannot err in failing to apply legislation that had not yet come into force on the date sentence was passed. The Drug Court Act 1998 commenced the day after the applicant was sentenced, so no obligation under it could arise.
  • Where a defendant's legal representative made a considered decision not to seek an adjournment to explore a potential Drug Court referral, that forensic choice did not give rise to appellate error on the sentencing judge's part.
  • The Court treated the companion guideline judgment issued the same day (concerning s 112(1) of the Crimes Act 1900) as an additional basis supporting the sustainability of the sentences, not as the primary framework for its analysis.
  • No error was established simply because a sentencing judge raised, in passing, the future possibility of a legislative referral scheme. Speculative reference to an uncommenced Act did not create any reviewable obligation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) (breaking, entering and stealing)
- Drug Court Act 1998 (NSW), including s 3 (objects) and s 6; Drug Court Regulation, reg 5 (usual place of residence requirement)

Cases:
- A companion guideline judgment concerning s 112(1) of the Crimes Act 1900, issued by the Court of Criminal Appeal on the same date (16 December 1999), is referenced but not separately cited in the provided text.