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Court of Criminal Appeal 17 February 2021

Johnson v R

[2021] NSWCCA 13

Sexual offences
RESENTENCE NO POINT OF PRINCIPLE

Citation: Johnson v R [2021] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 17 February 2021
Judges: Price J, Garling J, Wright J

Background

The applicant pleaded guilty in the District Court to ten counts of sexual offences against two underage female victims, along with further charges dealt with on Form 1 notices. The first victim was 11 years old and known to the applicant; the offending against her involved indecent assault, grooming, and repeated exposure. The second victim was 12 years old and a stranger to the applicant, abducted at knifepoint on her way to school, bound to a tree, and subjected to a prolonged series of serious sexual offences including aggravated sexual assault.

On 1 October 2019, Wilson SC DCJ in the District Court sentenced the applicant to an aggregate term of 28 years imprisonment with a non-parole period of 21 years, commencing from the date of arrest on 25 August 2017. A 15% discount was applied to each indicative sentence to reflect the guilty pleas, entered after committal for trial.

The applicant sought leave to appeal, initially raising grounds about the admission of uncharged conduct evidence and manifest excess. A further amended ground was later added, challenging the sentencing judge's finding that certain offences were aggravated by the presence of other children.

  • Whether the sentencing judge erred in treating the mere presence of other children as an aggravating factor in relation to Counts 1, 2, and 3
  • Whether the aggregate sentence of 28 years was manifestly excessive, having regard to the principle of totality and the utilitarian value of guilty pleas
  • Whether an extension of time to file the notice of grounds of appeal should be granted

Decision

The Court of Criminal Appeal granted an extension of time and leave to appeal, and upheld the appeal on the third ground. Garling J, with whom Price J and Wright J agreed, found that the sentencing judge erred in treating the mere presence of other children as an aggravating circumstance for Counts 1, 2, and 3. Mere presence, without more, is insufficient to elevate offending into a higher category of seriousness.

On the question of manifest excess, Garling J noted the need to ensure that the 15% guilty plea discount was genuinely reflected in the final aggregate sentence, not merely applied mechanically to each indicative term. His Honour also applied the totality principle to the offences against the second victim, which occurred as a single course of conduct over a short period on one day.

Taking the identified error and totality into account, Garling J reduced the aggregate sentence from 28 years to 24 years, with the non-parole period reduced from 21 years to 18 years. The Court noted this was not a case raising any point of principle beyond the specific error identified.

Orders Made

  • Extension of time granted to file a Notice of Grounds of Appeal (to 8 May 2020)
  • Leave to appeal granted
  • Appeal upheld
  • Aggregate sentence imposed by Wilson SC DCJ on 1 October 2019 quashed
  • In lieu, aggregate sentence of 24 years imprisonment imposed, commencing 25 August 2017 and concluding 24 August 2041, with a non-parole period of 18 years
  • The applicant is not eligible for release before 24 August 2035

Key Takeaways

  • The mere presence of other children at or near the scene of a sexual offence against a child is not, without more, a sufficient basis to treat that presence as an aggravating factor at sentencing.
  • Where a sentencing court applies an aggregate sentence, the utilitarian benefit of early guilty pleas must be genuinely and identifiably reflected in the final aggregate term, not only in the individual indicative sentences.
  • The totality principle requires careful attention when multiple serious offences form part of a single course of conduct occurring over a limited period, even where each individual sentence is otherwise appropriate.
  • In resentencing following an identified error, the Court of Criminal Appeal reduced the aggregate term by four years (from 28 to 24 years) and the non-parole period by three years (from 21 to 18 years), declining to treat the matter as raising any broader point of principle.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e)
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 61N(1), 66EB(3), 86(2)(b), 91H(2)

Cases:
- Aleshbi v R; Eshbi v R [2018] NSWCCA 30
- Gore v R; Hunter v R [2010] NSWCCA 330
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- McLaughlin v R [2013] NSWCCA 152
- R v Seymour [2012] NSWSC 1010