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Court of Criminal Appeal 23 March 2001

R v JOHNSTON

[2001] NSWCCA 93

Theft & property

Citation: R v Johnston [2001] NSWCCA 93
Court: New South Wales Court of Criminal Appeal
Date: 23 March 2001
Judge(s): Barr J; Studdert J

Background

The applicant, a 25-year-old man with a lengthy criminal history dating back to age 16, pleaded guilty to multiple counts of breaking, entering and stealing committed in March and April 2000 on the Central Coast of NSW. The offences involved forced entry into residential premises and the theft of consumer electronics. The applicant was arrested on 11 April 2000 after a neighbour observed one of the break-ins and provided police with vehicle details.

The applicant was sentenced in two separate District Court proceedings. In the first, Job QC DCJ sentenced him to four years imprisonment with a three-year non-parole period, also taking into account five additional matters. In the second, English DCJ sentenced him to three years imprisonment with a non-parole period of two years and three months for a further offence that had been inadvertently overlooked at the first hearing.

The applicant sought leave to appeal against both sentences, arguing that the first sentence was manifestly excessive and that both judges had erred in declining to fix non-parole periods shorter than three-quarters of the head sentences.

  • Whether the total sentence imposed by Job QC DCJ was manifestly excessive in all the circumstances
  • Whether both sentencing judges erred by declining to find "special circumstances" (a finding under the Crimes (Sentencing Procedure) Act that permits the parole period to exceed one-quarter of the head sentence) to allow for a longer supervised parole period to facilitate rehabilitation from heroin addiction
  • Whether English DCJ's conclusion that the applicant's prospects of rehabilitation were good was open on the evidence before her

Decision

The Court of Criminal Appeal found that the four-year sentence with a three-year non-parole period imposed by Job QC DCJ was well within the sentencing discretion available. The Court noted the applicant's very serious criminal history, the seriousness of the offences themselves, and the fact that five additional matters had been taken into account. Appropriate allowance had been made for the guilty plea and the additional hardship of serving time on protection.

On the special circumstances argument, the Court found no error in either judge's reasoning. Barr J considered that Job QC DCJ, as an experienced sentencing judge, was entitled to conclude that a non-parole period of less than three years would be insufficient given the applicant's criminality and the need to protect the public. A one-year parole period was found to be a reasonable balance between rehabilitation needs and the other sentencing considerations.

The Court rejected the submission that Job QC DCJ's failure to use the phrase "special circumstances" meant he had not turned his mind to the issue at all. The Court was prepared to infer that his Honour had in fact considered and declined to make such a finding.

Regarding the second sentence, the Court dismissed both the challenge to English DCJ's factual finding about the applicant's rehabilitation prospects and the argument that her Honour had misdirected herself about the circumstances in which she could extend the parole period. Both challenges were characterised as misconceived or unsupported by the reasoning in the judgment below.

Orders Made

  • Leave to appeal granted
  • Appeals dismissed

Key Takeaways

  • In dismissing both appeals, the Court of Criminal Appeal confirmed that non-parole periods set at three-quarters of a head sentence are not automatically erroneous, even where an offender has demonstrated rehabilitation needs arising from drug addiction.
  • A sentencing court is not required to use the specific expression "special circumstances" for its consideration of the issue to be legally sound; the Court of Criminal Appeal will examine the substance of the reasoning, not merely the language used.
  • Where an offender's addiction may require professional assistance for many years, that factor alone does not compel a sentencing court to extend the parole period to accommodate extended supervision by Probation and Parole.
  • The Court of Criminal Appeal reiterated that it does not find primary facts; factual conclusions that are reasonably open on the evidence before a sentencing judge will not be disturbed on appeal.
  • Serving a custodial sentence on protection at one's own request was treated as a relevant mitigating factor, but it did not outweigh the seriousness of an extensive criminal history in determining an appropriate non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW) (provisions governing the fixing of non-parole periods and the taking into account of additional matters on a Form 1)

Cases cited: No cases were cited in the judgment text provided.