AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 15 May 2002

R v Johns

[2002] NSWCCA 185

Assault & violenceTheft & propertyPublic order & justice offences
SENTENCING NO QUESTION OF PRINCIPLE ADJUSTMENT OF NON PAROLE PERIOD

Citation: R v Johns [2002] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 15 May 2002
Judge(s): Smart AJ; O'Keefe J

Background

The applicant pleaded guilty in the District Court to sixteen offences across two indictments, with a further eighteen offences taken into account. The offences arose from a concentrated series of incidents in late 1997 and included break, enter and steal, motor vehicle theft, malicious damage, and a pattern of increasingly serious assaults on police officers, court officials, a social worker, and a magistrate at various locations across Sydney.

The sentencing judge imposed a total effective sentence of nine years with a minimum term of six years, commencing 8 November 1997. The applicant sought leave to appeal against the severity of those sentences.

The applicant had a lengthy prior record dating back to 1993 and had accumulated numerous convictions, particularly for assaulting police. He was a young offender at the time of the offences.

  • Whether the sentencing judge failed to properly assess the applicant's criminality against his subjective circumstances
  • Whether adequate weight was given to the applicant's young age
  • Whether the judge gave sufficient consideration to remorse and prospects of rehabilitation
  • Whether the principle of totality was properly applied in structuring the overall sentence

Decision

The Court of Criminal Appeal granted leave to appeal but allowed the appeal only in limited terms, finding that an adjustment to the non-parole period on count 10 (malicious wounding of a senior constable) was warranted. The Court did not disturb the overall length of the head sentence or the majority of individual sentences, accepting that the total criminality was serious and the sentences were not manifestly excessive when viewed as a whole.

Smart AJ reviewed the detailed factual background of each group of offences. The incidents showed a consistent and escalating pattern of violent and dangerous conduct, including the applicant brandishing knives and scissors at police, judges, and court staff on multiple separate occasions. The prior record and the nature of the offences across several locations over a short period informed the sentencing outcome.

The Court varied the sentence on count 10, substituting a term of four and a half years with a non-parole period of six months commencing 8 May 2002. It also adjusted the commencement dates of sentences imposed at Goulburn Local Court on 5 February 2001, pursuant to section 59 of the Crimes (Sentencing Procedure) Act 1999, to sequence them appropriately after the non-parole period expired. O'Keefe J agreed with Smart AJ's proposed orders without separate reasons.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Sentence on count 10 (malicious wounding, taking into account 17 Form 1 offences) quashed and replaced with imprisonment for four and a half years commencing 8 May 2002 and expiring 7 November 2006, with a non-parole period of six months commencing 8 May 2002 and expiring 7 November 2002
  • Commencement dates of sentences imposed at Goulburn Local Court on 5 February 2001 varied pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999:
  • Assault police officer during execution of duty: fixed term of six months commencing 8 November 2002
  • Assault officer during execution of duty (two counts): fixed term of three months each commencing 8 November 2002
  • Maliciously inflict grievous bodily harm: fixed term of nine months commencing 8 November 2002
  • Applicant eligible for release on parole on 7 August 2003

Key Takeaways

  • The Court of Criminal Appeal confirmed that a partial adjustment to a non-parole period can be appropriate even where the head sentence is not disturbed, to ensure the overall structure of consecutive sentences operates correctly.
  • Where a sentencing court has taken into account a large number of offences on a Form 1 in conjunction with a principal offence, the structure and commencement dates of related sentences may require recalibration on appeal.
  • No error was established in the District Court's assessment of totality, youth, or rehabilitation in the circumstances, given the applicant's extensive prior record and the serious nature of the offences, which involved repeated violence towards police, judicial officers, and court staff.
  • Under s 59 of the Crimes (Sentencing Procedure) Act 1999, the Court of Criminal Appeal has power to vary the commencement dates of sentences to give effect to a corrected sentencing structure.
  • In dismissing the substantive grounds of the appeal while making limited structural adjustments, the Court signalled that the overall custodial outcome reflected the applicant's total criminality across the two indictments.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59

Cases cited:
- None cited in this judgment