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Court of Criminal Appeal 3 June 2002

Regina v Johnston

[2002] NSWCCA 201

Sexual offences
SENTENCING APPEAL SERIOUS SEXUAL OFFENCES PLEAS OF GUILTY

Citation: Regina v Johnston [2002] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 3 June 2002
Judge(s): Dunford J; Carruthers AJ

Background

The applicant, a convicted sex offender, had pleaded guilty in the Sydney District Court to a series of serious offences arising from home invasions in 1998. The offences included multiple counts of aggravated break and enter combined with sexual assault, as well as seven counts of sexual intercourse without consent against a single victim, whom he had found asleep and alone in her home. The attacks were prolonged, involved considerable violence and degradation, and caused the victim significant ongoing psychological harm.

Judge Gibson QC sentenced the applicant to a total head sentence of twenty years and six months, with a non-parole period of sixteen years and six months. This produced a parole period of four years. The applicant sought leave to appeal, contending that the structure of the sentencing regime was defective because it left insufficient time on parole.

  • Whether the overall structure of the sentences imposed below was correct
  • Whether the parole period of four years was adequate, given the overall head sentence of twenty and a half years
  • Whether the sentencing judge had properly balanced the need for sufficient time on parole against the high degree of criminality involved in the offences

Decision

The Court of Criminal Appeal agreed that the sentencing structure required adjustment. Carruthers AJ, with Dunford J agreeing, found that a parole period of only four years was insufficient in the context of the overall head sentence. The Court noted the importance of allowing a meaningful period on parole to facilitate the applicant's supervised reintegration into the community after a lengthy term of imprisonment.

The Court increased the parole period to five years and six months, which had the practical effect of reducing the non-parole period so that the applicant would become eligible for parole after serving fifteen years, rather than sixteen years and six months. The total head sentence of approximately twenty and a half years remained unchanged.

The Court also had regard to the applicant's conduct and progress in custody. Evidence showed that the applicant had maintained good behaviour at Goulburn Correctional Centre, engaged in educational programs, and completed vocational courses. The Court acknowledged these matters while emphasising that the high degree of criminality across the offences remained a dominant consideration.

A recommendation was made to the Commissioner for Protective Services that the applicant receive appropriate treatment and management within the corrective services system, with the aim of reducing the risk of reoffending, and that relevant psychological and assessment reports be provided to the Commissioner.

Orders Made

  • Appeal allowed
  • Sentences for counts 2 and 11 quashed
  • Count 2: re-sentenced to seven years imprisonment commencing 4 July 2012, expiring 3 July 2019, with a non-parole period of one year and six months commencing 4 July 2012 and expiring 3 January 2014
  • Count 11: re-sentenced to three years imprisonment commencing 4 January 2011 and expiring 3 January 2014, with no separate non-parole period fixed
  • The applicant to be eligible to apply for parole on 3 January 2014, after serving fifteen years
  • Recommendation made to the Commissioner for Protective Services regarding treatment and management of the applicant

Key Takeaways

  • The Court of Criminal Appeal confirmed that a parole period must be of sufficient length to allow meaningful supervised reintegration, and that a four-year parole period was inadequate relative to an overall head sentence exceeding twenty years.
  • Where the overall structure of accumulated sentences leaves an insufficient parole period, the Court may intervene to restructure individual sentences, even without altering the total head sentence.
  • A guilty plea and positive conduct in custody, including participation in education and vocational programs, are relevant to the exercise of the sentencing discretion on appeal, though they do not diminish the weight given to the gravity of the underlying offences.
  • In cases involving prolonged and serious sexual offending, the high degree of criminality remains a dominant sentencing consideration, even where favourable subjective matters are established.
  • The Court used its power on resentencing to recommend that the corrective services authority provide targeted treatment to reduce the risk of reoffending, attaching relevant expert reports to that recommendation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61C(1)(b), 61I, 109(2), 112(2), 113(2)

Cases:
- R v Blackman & Waters [2001] NSWCCA 121
- R v Deahm (CCA, unreported, 27 March 1996)
- R v Ellis (1986) 6 NSWLR 603
- R v Sharrock (1999) NSWCCA 289
- R v Simpson (1961) 61 A Crim R 58
- R v Thomson & Houlton (2000) 49 NSWLR
- R v Thornbury (2000) NSWCCA 526
- R v Wahabzadah [2001] NSWCCA 253
- Yardley v Betts (1979) 22 SASR 108