AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 15 June 2020

Johnson v R

[2020] NSWCCA 126

Assault & violenceTheft & propertyTraffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE OBJECTIVE SERIOUSNESS NO ERROR SHOWN LEAVE REFUSED CRIME

Citation: Johnson v R [2020] NSWCCA 126
Court: NSW Court of Criminal Appeal
Date: 15 June 2020
Judges: R A Hulme J (with Fagan J and Cavanagh J agreeing)

Background

The applicant, a licensed heavy combination vehicle driver, stole a fully laden 42-tonne prime mover and trailer from a service station in Murrurundi in the early morning of 11 October 2017. Over the next approximately 90 minutes, he drove south toward Singleton in a manner the Court described as "horrendous and destructive," deliberately swerving at police vehicles, forcing numerous motorists off the road, injuring ten people (one seriously), and posing a serious risk to the lives of five police officers.

The applicant was sentenced in the District Court at Newcastle on 1 March 2019. The sentencing judge imposed an aggregate sentence of 12 years and 6 months imprisonment with a non-parole period of 6 years and 6 months, commencing 11 October 2017. The sentence covered 17 substantive offences across a range of charges under the Crimes Act 1900 (NSW) and the Road Transport Act 2013 (NSW), with four further offences taken into account on a Form 1.

The applicant sought leave to appeal that sentence to the Court of Criminal Appeal on two grounds.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offences
  • Whether the aggregate sentence of 12 years and 6 months was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's assessment of objective seriousness. The applicant contended that his mental illness at the time of offending warranted a lower objective seriousness finding. The Court rejected this, confirming that the sentencing judge had clearly and overtly taken the applicant's mental health into account, as required. Mental illness is a subjective mitigating factor relevant to moral culpability, but it does not automatically reduce the objective seriousness of the conduct itself. The Court found the offences were, putting aside the mental illness, of a high degree of seriousness.

On the second ground, the Court rejected the contention that the aggregate sentence was manifestly excessive. It noted that the applicant's reliance on a stern indicative sentence for one particular offence did not, without more, demonstrate that the overall aggregate was excessive. The Court also cautioned against placing undue weight on raw sentencing statistics, which it described as unhelpful as a primary analytical tool.

The Court observed that the non-parole period represented a significant reduction from what it might otherwise have been, reflecting a finding of special circumstances arising from the applicant's mental health and need for extended supervision. That reduction, of up to almost three years, was a substantial concession in the applicant's favour. The applicant failed to establish manifest excess, and the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's clear and overt consideration of an offender's mental illness satisfies the requirement to take mental health into account; no error arises simply because the objective seriousness of the offences remains high.
  • Where mental illness is established as a mitigating factor, it goes to the offender's moral culpability (a subjective consideration) rather than automatically reducing the objective gravity of the conduct.
  • A stern indicative sentence for one offence within an aggregate does not, by itself, demonstrate that the overall aggregate sentence is manifestly excessive.
  • Raw sentencing statistics were characterised by the Court of Criminal Appeal as unhelpful when assessing whether an aggregate sentence is manifestly excessive.
  • In dismissing the appeal, the Court confirmed that a substantially reduced non-parole period, reflecting a special circumstances finding for mental health reasons, is a significant factor against a manifest excess conclusion on the overall sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 51B(1), 52A(3)(c), 53, 58, 154A(1)(a), 195(1)(a)
- Crimes (Administration of Sentences) Regulation 2014 (NSW), r 214A(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, 53A
- Road Transport Act 2013 (NSW), ss 117(2), 146(1)

Cases:
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Hordern v R [2019] NSWCCA 210
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Mulato v R [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61
- R v Jurisic (1998) 45 NSWLR 209
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Tepania v R [2018] NSWCCA 247; (2018) 275 A Crim R 233
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48