Citation: R v Johnson [2004] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 13 April 2004
Judges: Simpson J, Kirby J, Bell J
Background
The applicant, a man in his mid-fifties with an extensive criminal record dating back to 1956, pleaded guilty in the District Court to five charges arising from a single incident on 1 February 2001. Police stopped a vehicle in which he was travelling in Sydney, executing a bench warrant for his arrest. He resisted arrest, was found carrying lock-picking devices and a prohibited stun gun, and a subsequent search of his son's home uncovered two unlicensed firearms.
Judge Blackmore in the District Court sentenced the applicant on 24 April 2003 to an overall term of seven years' imprisonment with a non-parole period of four years. The sentences were structured in a staggered, partially concurrent arrangement, commencing on 30 August 2002, so that they followed on from sentences already being served for earlier offences.
The applicant sought leave to appeal against the severity of each sentence. His primary arguments were that the total sentence was manifestly excessive and that the sentencing judge had miscategorised the seriousness of the first count (resisting a police officer in the execution of duty).
Legal Issues
- Whether the total sentence was manifestly excessive, having regard to the applicant's subjective circumstances and the overall criminality involved
- Whether the sentencing judge erred in characterising the first count (resisting arrest) as more serious than the facts supported
- Whether the commencement dates of the sentences, as imposed, were correct
Decision
The Court of Criminal Appeal accepted that the sentencing judge had overstated the seriousness of the first count. The statement of facts before the sentencing judge described only a general, unspecified level of resistance during arrest. The Court found this did not justify the characterisation that had been placed on it, and quashed the sentence on count one, substituting a fixed term of 15 months. Because that term was wholly subsumed within the longer concurrent sentences, the substitution made no practical difference to the overall period of imprisonment.
The Court rejected the submission that the total sentences were manifestly excessive. It noted the applicant's high level of criminality: possession of a prohibited weapon, an unlicensed pistol, an unlicensed shotgun, lock-picking equipment, and a false police identification badge, all from a single incident. The Court was satisfied the overall sentencing outcome fell within the range of a sound sentencing discretion, notwithstanding the 20 per cent discount the judge had applied for guilty pleas.
A separate error in the commencement dates required correction. The Court identified that the earliest sentences should have commenced on 31 July 2002, not 30 August 2002, because the non-parole period under the prior sentences of Judge Gibson had been agreed to expire on 30 July of the relevant year. Accordingly, the commencement dates of all five sentences were adjusted to flow correctly from that corrected starting point, shifting each sentence back by one month.
Orders Made
- Leave to appeal against each sentence granted
- Appeal against count 1 allowed: sentence quashed and replaced with a fixed term of 15 months commencing 31 July 2002
- Counts 2 to 5: sentences adjusted so as to commence on the following dates:
- Count 2: 31 July 2002
- Count 3: 31 July 2003
- Count 4: 31 July 2003
- Count 5: 31 March 2004
- Appeals against sentence otherwise dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing judge must not overstate the nature and seriousness of an offence beyond what the agreed statement of facts actually supports.
- Where a sentence is quashed and a shorter term substituted, but that term is wholly subsumed within concurrent sentences, the practical effect on total imprisonment may be nil.
- Errors in commencement dates, even when modest (here, a one-month discrepancy), will be corrected on appeal to ensure sentences run accurately from the correct date.
- A lengthy prior criminal record does not, on its own, justify a sentence outside the appropriate range; the Court assessed the total criminality across all five counts in determining whether the aggregate was excessive.
- In dismissing the bulk of the appeal, the Court confirmed that possession of multiple unlicensed firearms, a prohibited weapon, and housebreaking implements in a single incident represents a high level of criminality for sentencing purposes.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 58
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 3 of Part 3; ss 21A, 44
Cases:
- Ibbs v The Queen (1987) 163 CLR 447
- R v Johnson [2002] NSWCCA 492 (6 December 2002)
- R v Shankley [2003] NSWCCA 253
- R v Zamagias [2002] NSWCCA 17
- Ryan v The Queen [2001] HCA 21; 206 CLR 267
- Veen v R [No 2] (1988) 164 CLR 465