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14
Court of Criminal Appeal 11 May 2004

R v Johnson [2004] NSWCCA 140 revised - 18

[2004] NSWCCA 140

Theft & property
CROWN APPEAL AGAINST SENTENCE PLEAS OF GUILTY SUBJECTIVE CIRCUMSTANCES SPECIAL CIRCUMSTANCES APPLICABLE SENTENCING REGIME

Citation: R v Johnson [2004] NSWCCA 140
Court: New South Wales Court of Criminal Appeal
Date: 11 May 2004
Judge(s): Spigelman CJ, Wood CJ at CL, Simpson J

Background

The respondent pleaded guilty in the District Court to two offences: break, enter and steal in circumstances of aggravation (carrying a maximum of 20 years' imprisonment under s 112(2) of the Crimes Act 1900), and break and enter a place of divine worship with intent to steal (carrying a maximum of 10 years under s 107(1)). The offences involved a series of burglaries committed between October 2002 and February 2003, including entries into a Croatian Catholic Church and a residential property in West Hoxton. Two further break and enter offences were taken into account on a Form 1.

The respondent had an extensive criminal history beginning at age 16, including nine prior counts of break, enter and steal as an adult. He had been released on parole only months before committing the present offences. His background included a severely dysfunctional upbringing, longstanding drug dependence beginning in childhood, and a diagnosis of personality disorder.

Sorby DCJ sentenced the respondent to four and a half years' imprisonment with a non-parole period of two and a half years on the first count, and a fixed term of two years on the second count, structured so the sentences were partially cumulative and partially concurrent. The Crown appealed to the Court of Criminal Appeal, contending the sentences were manifestly inadequate.

  • Whether the sentences imposed were manifestly inadequate having regard to the objective seriousness of the offences and the respondent's criminal history
  • Whether the applicable sentencing regime (including the standard minimum sentencing amendments) was correctly identified and applied
  • Whether, even if the sentences were manifestly inadequate, the Court of Criminal Appeal should exercise its discretion to decline to intervene in the Crown appeal

Decision

Simpson J (with whom Spigelman CJ and Wood CJ at CL agreed) acknowledged that the sentences were lenient and possibly manifestly inadequate, but held it was unnecessary to finally determine that question. The Court focused its analysis on whether the circumstances warranted exercising the appellate discretion to dismiss the Crown appeal regardless of that finding.

Three factors, taken cumulatively, led the Court to exercise that discretion against intervention. First, the Crown had delayed notifying the respondent of the appeal by eleven and a half weeks, and offered no explanation for the delay. Second, the Crown's own solicitor had made a concession at the sentencing hearing regarding the objective gravity of the offence, and the Court observed that where Crown submissions have contributed to a sentencing error, it is more difficult for the Crown to seek correction through appeal. Third, the respondent's co-offender (his older brother) had been charged with the un-aggravated form of the break and enter offence and prosecuted in the Local Court, receiving a sentence of 20 months with a non-parole period of 15 months. The disparity between that outcome and what the Crown sought on appeal was a significant consideration.

The Court rejected the Crown's submission that the absence of imminent release meant no real prejudice arose from the delay. It also declined to treat the novelty of the standard minimum sentencing regime as a factor that should reduce the weight given to the Crown's concession on objective gravity. While each factor individually might not have sufficed, their combined effect warranted declining to interfere with the sentences.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that the appellate discretion to decline intervention can be exercised even where sentences may be manifestly inadequate, provided the circumstances cumulatively justify that course.
  • An unexplained delay of eleven and a half weeks in notifying a respondent of a Crown appeal is a significant factor weighing against intervention, even where the respondent is not facing imminent release.
  • Where Crown submissions at the sentencing hearing contributed to the error alleged on appeal, the court held this makes it more difficult (though not impossible) for the Crown to seek correction through the appellate process.
  • Marked disparity between the sentence sought on appeal and the outcome for a co-offender prosecuted for the un-aggravated form of the same offence was treated as a substantial consideration favouring the exercise of discretion.
  • No single factor among the three identified was necessarily sufficient on its own; the Court treated their cumulative effect as determinative.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW), ss 107(1), 112(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)

Cases:
- House v The King (1936) 55 CLR 499
- R v Way [2004] NSWCCA 131