Johnson, Mark Anthony Wilford v R

Ground One

1. The applicant's criminal history included an offence of speeding for which he received a fine and a drive whilst licence suspended which was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.
2. His Honour commenced the remarks on sentence by outlining the offences, the penalties, the significance of the standard non-parole period, the fact that the applicant pleaded guilty at the first available opportunity, the facts underlying the offences to be taken into account on the Form One and the facts underlying the principal offences.
3. Under the heading "The Offender" his Honour said:- The offender was born in 1985 and has this year celebrated his 30th birthday. He has two antecedent traffic offences which do not bear upon the assessment of his sentence in these matters. The offender suffered incarceration for the first time when he was held prior to the grant of bail. This will be the first time he has been sentenced to imprisonment. The offender gave evidence. (italics not in original)
4. The applicant seizes upon the italicised sentence of the remarks as signifying that his Honour had no regard to the applicant's lack of any relevant previous convictions. The applicant calls in aid an observation by Kirby J in Weininger v R [2003] HCA 14; 212 CLR 629 at [58] to [59] wherein his Honour noted that "the absence of prior convictions (quite apart from issues of character) will usually attract more lenient punishment." The applicant relies upon this passage for the submission that the lack of a record of previous convictions ought to have been given some weight and had a bearing upon the assessment of the sentence to be imposed.
5. The difficulty with this submission is that Kirby J was in dissent in Weininger and, in any event, the statement is not expressed in the absolute. Whether or not the absence of prior convictions attracts a more lenient sentence depends upon a multitude of other factors, such as the nature of the offending and the offender's role in the commission of the offence. It is trite to observe that some offences, such as child sexual assault offences and drug importation offences, are invariably committed by persons of otherwise good character because it is that characteristic which enables the commission of those offences.
6. Given that the approach mandated by Markarian v R [2005] HCA 25; 228 CLR 357 requires a sentencing judge to identify all relevant matters, both objective and subjective, that bear upon the appropriate sentence to be imposed, and then to engage in a process of instinctive synthesis in order to arrive at a sentence (an authority to which the sentencing judge expressly referred in his remarks on sentence), Kirby J's statement in Weininger arguably detracts from that approach.
7. In my view, this ground is based upon a distorted reading of the sentencing judge's statement. Rather than signifying that his Honour was not taking into account the absence of relevant prior convictions, I read his Honour's remarks to signify the opposite, that is, that in view of the relatively minor nature of the applicant's prior convictions, they had no relevance to the assessment of the sentence to be imposed for much more serious matters. His Honour did have regard to this feature of the applicant's subjective case and took it into account favourably to the applicant. That is consistent with his Honour's reference to the fact that the applicant had not previously experienced imprisonment.
8. This ground has no substance and I would accordingly refuse leave to rely upon it.

Ground Two

1. Under the heading "The Sentence" his Honour proceeded in the following way:- "For these reasons I have settled upon an aggregate sentence. Before I announce that however, I announced that the offender is convicted of the three offences upon which he is to be sentenced. I impose an aggregate sentence of 12 years. I specify a non-parole period of seven years and six months commencing on 18 February 2015 to expire on 17 August 2022. I sentence the offender to a further term of imprisonment of four years and six months to commence at the expiration of the non-parole period and to expire on 17 February 2027. He is eligible for consideration for release to parole at the expiration of the non-parole period. The parole shall be supervised in accordance with the regulations and the offender's identified needs at the point of release. The indicative sentences upon which I have reached the aggregate sentence are for the first offence contrary to s 25(2) of the Drug Misuse and Trafficking Act alleging the supply of 126.8 g of Nexus and taking into account the additional Form 1 offences imprisonment for 10 years including a non-parole period of six years. The second offence contrary to the same provision, in respect of 200.98 g of the same substance imprisonment for nine years including a non-parole period of five years and six months. For the third offence of possession of a home-made pistol, contrary to s 7(1) of the Firearms Act and taking into account the additional offences on the Form 1 relevant to that charge imprisonment for three years and six months including a non-parole period of two years. I have allowed special circumstances. I have allowed a discount of 25% for the plea of guilty applied to the assessment of sentence that would have otherwise been imposed …. ."
2. The applicant relies upon the decision in SHR v R [2014] NSWCCA 94; 241 A Crim R 544 in support of this ground. In that case, this Court held that s53A(1)(b) of the Crimes (Sentencing Procedure) Act 1999 was contravened by sentencing remarks which led to the irresistible conclusion that the sentencing judge had applied the discount for the plea of guilty to the aggregate sentence, instead of to the indicative sentences. That result was brought about by a reading of these remarks :- "Those sentences are hypothetical. There is a principle familiar to those practising in the criminal courts that, where there is a multiplicity of charges, it may turn out to be an inappropriate result if you simply add together all the possible penalties. There are cases where you could end up with hundreds of years. Such outcomes are not appropriate and one must look at the totality. Nonetheless, even allowing a discount of twenty per cent, which I do, the offender is sentenced as follows: (emphasis added) Sentenced to imprisonment for fourteen years, to date from 11 September 2010, that sentence to expire on 10 September 2024. I set a non-parole period of ten years, to date from the commencement of the sentence and to expire on 10 September 2020."
3. The applicant contends further that the discount of 25% for the plea of guilty "appears to have been applied to the aggregate sentence which was imposed". The assumption the applicant makes is that the sentencing judge commenced at an aggregate sentence of 16 years before the application of the discount. By a process of arithmetical comparison, the applicant maintains that the discount could not have been applied to the individual indicated sentences because the relevant starting point in each case would not be as arithmetically neat.
4. I am not persuaded that the manner of announcing the sentences alone establishes that his Honour fell into error or contravened the terms of s 53A(1)(b). The comparison with SHR is inapposite. It is clear from the passage set out above that the discount of 20% was applied in that case to the aggregate sentence. In the instant case, his Honour announced the aggregate sentence first by way of informing the applicant of the actual sentence. His Honour then explained the basis of that aggregate sentence, namely the indicative sentences on each count. Immediately thereafter, there is the reference to the application of the discount. There is nothing in this manner of expression that warrants the necessary conclusion that his Honour applied the discount to anything other than the indicative sentences.
5. As for the applicant's argument based upon an arithmetical analysis, the Crown submissions tend to refute it. Given that the indicative sentences are 10 years, nine years and three years six months respectively, the applicant's alleged starting point for the aggregate sentence represents an accumulation of six years. I agree with the Crown's submission that such a degree of accumulation is unlikely (and unwarranted) in the circumstances of this case. The second count fell into the category of a deemed supply offence, arising directly out of the commission of the first supply offence and the execution of the search of the applicant's home. His Honour acknowledged that "there is a significant overlap between the offences of supply, the first being one of actual supply and the second being of possession for the purposes of supply ..." A modest degree of accumulation was called for and is borne out by the aggregate sentence.
6. I would grant leave to rely upon this ground but dismiss this ground of appeal.

Ground Three

1. The applicant's submissions on this ground take issue with the length of the aggregate sentence, having regard to the applicant's role, his subjective circumstances, the positive steps taken towards rehabilitation and his good prospects in the future, the observance of stringent bail conditions leading up to sentence, the absence of previous relevant convictions, and his remorse and contrition.
2. None of these factors were overlooked by the sentencing judge and no error is asserted with respect to the judge's findings for these purposes. A ground of manifest excess is not made out by highlighting a number of positive features of an applicant's case in support of a conclusion that the sentence is "crushing". The applicant must persuade this Court that the sentence is plainly wrong, having regard to all of the matters that are relevant to fixing the sentence: Hili v The Queen, Jones v The Queen [2010] HCA 45; 242 CLR 520.
3. Whilst his Honour found that the offences fell below the mid range of objective gravity, a standard non parole period of 15 years applied to the drug offences. The standard non parole periods and the maximum penalties operated as legislative guideposts. His Honour also found that the applicant was a user/supplier but that "his conduct escalated to a level at which he gained some additional financial gain, though not to a substantial degree." His Honour found that the pistol was connected to his drug supply activities. The aggregate sentence was required to reflect the totality of the applicant's criminality.
4. I am far from persuaded that the sentence imposed was outside the range of a legitimate sentencing discretion.
5. I would grant leave to rely upon this ground but dismiss this ground of the appeal.
6. The appeal against sentence ought be dismissed.
7. PRICE J: I agree with Latham J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2017