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23
Court of Criminal Appeal 20 May 2005

Regina v Johnson

[2005] NSWCCA 186

Sexual offencesAssault & violenceTheft & property
SENTENCING AGGRAVATING FACTORS ELEMENTS OF CRIME

Citation: Regina v Johnson [2005] NSWCCA 186
Court: NSW Court of Criminal Appeal
Date: 20 May 2005
Judge(s): Hunt AJA, Hulme J, Johnson J

Background

The appellant was sentenced in the District Court by Norrish QC DCJ on three charges arising from two separate incidents. The first two charges arose from a February 2001 break-in during which the appellant entered a woman's unit while she slept, stole property, and committed sexual intercourse without consent. The third charge arose from a substantially similar offence committed against a different victim in March 2002.

The appellant had entered guilty pleas at different stages of the proceedings. Pleas to the first and third charges were entered in the Local Court, attracting a 25% utilitarian discount. A plea to the second charge was entered one week before trial, attracting a 10% discount. A further relevant matter was that the appellant had also been sentenced for a separate aggravated break, enter and indecent assault committed in November 2001, between the two incidents the subject of this appeal.

The District Court imposed sentences totalling an effective fourteen years with a nine-year combined non-parole period. The appellant sought leave to appeal, arguing errors in the sentencing reasoning and in the calculation of commencement dates.

  • Whether the sentencing judge had engaged in double counting by treating the presence of the victim on the premises as an aggravating factor, when that element was already an ingredient of the charged offence
  • Whether the commencement dates of the sentences correctly accounted for the appellant's pre-sentence custody
  • Whether, under section 6(3) of the Criminal Appeal Act 1912, another sentence in substitution was warranted in law

Decision

The Court found that the sentencing judge had erred in his reasons for selecting the commencement dates of the sentences under appeal. The judge had commenced the sentences from 10 February 2004, creating partial concurrency of approximately eleven months with the earlier sentence for the November 2001 offence. The Court of Criminal Appeal found this approach was based on flawed reasoning, which opened the door for the Court to re-exercise the discretion itself.

On the double counting argument, the Court examined whether the aggravating circumstance of the victim's presence had been impermissibly used twice: once as an element of the offence and again as a sentencing aggravating factor. The Court addressed this in the context of the established principle, drawn from authorities including The Queen v De Simoni and Pearce v The Queen, that a sentencing court must not punish an offender for circumstances that already constitute an element of the offence charged.

On the commencement date question, the majority determined that the sentences should commence from 20 November 2003, the date on which the appellant would have become eligible for parole under his earlier sentence but for the intervention of the Parole Board. Hulme J agreed in result but reasoned that no commencing date within the parole period of the earlier sentence should further diminish the effective punishment that sentence was intended to impose. The effective total sentence of fourteen years with a nine-year non-parole period remained unchanged.

The Court, by majority, varied the sentences only in relation to their commencement dates. The substantive lengths of the individual sentences were not disturbed.

Orders Made

  • Leave granted to appeal against the sentences imposed by Norrish QC DCJ on 9 July 2004
  • Appeal upheld; sentences varied in relation to commencement dates only
  • Count 1 (aggravated break and enter and stealing): fixed term of three years, commencing 20 November 2003, expiring 19 November 2006
  • Count 2 (sexual intercourse without consent): fixed term of eight years and one month, commencing 20 November 2003, expiring 19 December 2011
  • Count 3 (aggravated break and enter and sexual intercourse without consent): total term of nine years, commencing 20 November 2008, expiring 19 November 2017, with a non-parole period of four years commencing 20 November 2008, with eligibility for parole from 19 November 2012
  • Effective total sentence remains fourteen years with a combined non-parole period of nine years

Key Takeaways

  • A sentencing court must not treat a circumstance that is already an element of the charged offence as a further aggravating factor at sentence; doing so constitutes impermissible double counting contrary to principles confirmed in De Simoni and Pearce.
  • Where a sentencing judge's reasons for selecting a sentence commencement date are found to be flawed, the Court of Criminal Appeal may re-exercise the discretion to fix commencement dates rather than simply remitting the matter.
  • Backdating a sentence to the commencement of pre-sentence custody serves an important function, but selecting a commencement date that falls within the parole period of an earlier sentence has the practical effect of diminishing the punishment imposed by that earlier sentence.
  • Under section 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will substitute a different sentence only where another sentence is warranted in law; here, the effective total sentence was preserved and only the structural timing of individual sentences was corrected.
  • Totality considerations remain relevant when setting commencement dates across multiple sentences, particularly where an offender is serving, or has served, a prior custodial sentence for related offending.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Administration of Sentences) Regulation 2001 (NSW)
- Crimes Legislation Amendment (Sentencing) 1999 (NSW)
- Crimes Act 1914 (Cth)
- Interpretation Act 1987 (NSW)

Cases
- The Queen v De Simoni (1981) 147 CLR 383
- Pearce v The Queen (1998) 194 CLR 610
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Mill v The Queen (1988) 166 CLR 59
- Postiglione v The Queen (1997) 189 CLR 295
- House v The King (1936) 55 CLR 499
- Dinsdale v The Queen (2000) 202 CLR 321
- Johnson v The Queen [2004] HCA 15
- Regina v Simpson (2001) 53 NSWLR 704
- Regina v SLD (2003) 58 NSWLR 589
- Regina v Fernando (1992) 78 A Crim R 58
- Regina v Astill (No 2) (1994) 64 A Crim R 289