R v Johnson

Court of Criminal Appeal (NSW)|2004-03-05|Before: Simpson J, Kirby J, Bell J

the application for leave to appeal against sentence 23 Six grounds were pleaded in the application. They were framed as follows: "Ground 1 His Honour erred by finding that 'the offender's criminal history does not entitle him to any positive consideration on sentence'. Ground 2 His Honour erred by finding that the offender's criminal history 'brings into play the potential of maximum penalty to be applied. He continues to disobey the law with regard to this offences (sic) and other offences, it is a very serious aggravating feature with regard to this sentence'. Ground 3 His Honour erred by sentencing the applicant in relation to Count One, a charge of resisting an officer in the execution of his duty, as if it was in fact a charge of assaulting a police officer. Ground 4 His Honour erred by finding that 'the hospital records did not accept the offender's reported injuries when observed on examination, they were not visible.' Ground 5 His Honour erred by ordering that the sentences should commence on 30 August 2002. Ground 6 The sentences imposed were manifestly excessive."

grounds 1 and 2 24 Grounds 1 and 2 asserted "errors of principle" by the sentencing Judge in his remarks concerning Mr Johnson's criminal history. His Honour described that history in these terms: (R/S 8) "The offender has an extensive criminal history dating back to 1956. Generally, his convictions which have extended from then until the present, with some notable periods when he has not been convicted for any offences, relate to possession of house breaking implements and break and entering premises and stealing. However his criminal history also includes offences for possession of firearms. In 1981 he was convicted on possession of a shortened firearm. There appears to be an absence in convictions from 1981 until 2001, when looking at the record. However, that impression is somewhat misleading. He was sentenced to imprisonment for 3 years in 1981 and he was due to appear in 1997 for a number of offences of having house breaking implements in his possession, committed in 1995. He was finally dealt with for those matters in 2001 and sentenced to two years imprisonment with a non-parole period of 18 months. I refer to those matters as the 2001 offences. That sentence concluded on 30 January 2003." 25 Having adverted to Mr Johnson's arrest on 1 February 2001 on the charges which are the subject of this appeal, his Honour then said this: (R/S 9) "What can be said, the offender's criminal history does not entitle him to any positive consideration on sentence . Further, he has committed, yet again, a series of offences for which he has previously been convicted. In particular he has been convicted for another offence of possession of the house breaking implement. He has been convicted of this offence on 5 occasions and imprisoned before for this offence on two separate occasions and confined to an institution for the same offence when a juvenile. Such a history brings into play the potential of (the) maximum penalty to be applied. He continues to disobey the law with regard to this offence and other offences, it is a very serious aggravating feature with regard to this sentence." (emphasis added) 26 These remarks, according to the applicant, contain three "errors of principle": · First, the phrase "the offender's criminal history does not entitle him to any positive consideration on sentence" is presumably a suggestion, according to the applicant, that Mr Johnson's criminal record should not result in any mitigation of sentence. However, the criminal record included long gaps where there were no convictions. Accordingly, it was not a case, on the applicant's submission, in which "no positive consideration or leniency could be extended". · Secondly, the phrase "such a history brings into play the potential of (the) maximum penalty to be applied" betrayed a further error. The circumstances of the offence and the long gap between convictions did not call for a consideration of the maximum penalty. · Thirdly, that in the context of these two errors, his Honour then said that the applicant's prior criminal record was "a very serious aggravating feature". That was a further error, it was submitted, because it could only mean that his Honour had increased the sentence by reason of the prior criminal record. 27 Before dealing with the first and second suggested errors, reference should be made to a factual difference between the applicant and the Crown. Counsel for the applicant, in written submissions, repeated a submission made to the sentencing Judge that Mr Johnson had not been convicted for a period of 17 years (between 1981, when he was sentenced for various offences, and 1997, when he failed to answer his bail for offences committed in 1995). The Crown suggested, and his Honour found, that the period extended from Mr Johnson's release in 1984 to the time at which he again offended, that is 1995 (a period of 10-1/2 years). In the course of argument Counsel for Mr Johnson moderated his position, suggesting that custodial records established that the applicant was in fact released in October 1982, not September 1984. 28 Dealing with the first suggested "error", on any view there was a significant gap in the criminal record of Mr Johnson, whether 10 -1/2 years or somewhat longer. A gap in convictions may suggest that a return to crime is less likely (Ryan v The Queen (2001) 206 CLR 207 at 288). It may provide a basis for inferring that there are reasonable prospects of rehabilitation. Depending on the circumstances, leniency may be warranted. 29 However, Mr Johnson's criminal record, even taking account of the gap, could hardly inspire confidence concerning his rehabilitation or the unlikelihood of his returning to crime. Leniency was plainly unwarranted, as his Honour said. The nature of the offences committed before 1984 and after 1995 amply justified that view. There was no error of principle in respect of the first matter. 30 The second and third suggested errors criticise phrases used by his Honour which do require interpretation in order to understand what was being said. What was meant in saying that "such a history brings into play the potential of (the) maximum penalty to be applied" and that such history was "a very serious aggravating feature"? Can it be inferred, as the applicant contends, that his Honour sentenced more harshly because of Mr Johnson's criminal past? 31 His Honour was sentencing Mr Johnson in the context of the recently introduced provision of the Crimes (Sentencing Procedure) Act 1999 s21A. That section, relevantly, is in these terms: " 21A Aggravating, mitigating and other factors in sentencing

(1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (d) the offender has a record of previous convictions, … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence." 32 In terms of s21A(2)(d), Mr Johnson had a record of previous convictions. That record was, therefore (subject to s21A(4)), an "aggravating factor" to be taken into account in determining the appropriate sentence (although, as set out in s21A(5), not necessarily increasing that sentence). 33 What is a "rule of law" for the purposes of s21A(4)? No guidance is given by the Act, or by authority. However, it is reasonable to regard a sentencing principle, established by the common law, and not abrogated by the Act, as such a law. 34 In R v Veen [No 2] (1988) 164 CLR 465, the High Court considered the impact of the criminal history of an offender upon sentence. The majority (Mason CJ, Brennan, Dawson and Toohey JJ) wrote: (at 477) "There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [[1970] AC 643 at 650]. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalty." 35 Howie J, in R v Shankley [2003] NSWCCA 253, expressed the principle in Veen [No 2] in these words: (para 31) "The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted'." 36 Here the applicant made the following submission, having again referred to the gap in convictions between the early 1980's and 1995. "... Thus there were reasons in this case to find that the applicant was capable of leading long periods of crime free existence, that he understood the nature and seriousness of the punishment that was to be imposed upon him and that there were reasonable prospects that he would not return to his criminal activity. This was not a case where the applicant's moral culpability showed a dangerous propensity that required the imposition of condign punishment to give effect to specific deterrence. The applicant had not been to jail since the early 1980s. Any substantial jail sentence imposed on this man who is no longer young was likely to bring about substantial specific deterrence." 37 His Honour, in using the phrase "aggravating feature", may have been adverting to s21A(2)(d), or he may have been alluding to the principle in Veen [No 2] although, with respect, using language which was not entirely apposite. The criminal record of Mr Johnson, and especially the repetition of certain offences, was capable (as his Honour recognised), of "illuminating" the "moral culpability" of the applicant, and demonstrating the need for deterrence, particular and general. The applicant's five previous convictions for the possession of household implements demonstrated a need for a sentence which would deter him from committing such an offence again. The same can be said of the charges relating to firearms. Viewed in the light of his criminal history, his actions demonstrated "a continuing attitude of disobedience to the law". We believe his Honour was saying no more than that in the passage from his remarks which has been criticised. As such, his remarks conformed to Veen [No 2] and were warranted by the criminal history. 38 There remains one matter. It was said, in the context of the second suggested "error", that the circumstances of the offence did not warrant his Honour referring to "the maximum penalty" being brought "into play". 39 Obviously a sentencing Judge, when fixing an appropriate sentence, must have regard to the maximum penalty (R v Zamagias [2002] NSWCCA 17, per Howie J para 11; R v Shankley [2003] NSWCCA 253) recognising that the maximum is directed at the worst class of case (Ibbs v The Queen (1987) 163 CLR 447 at 451/2). The charge of being in possession of implements of housebreaking related to the applicant's possession of lock-picking devices and a lock-picking gun. This was an objectively serious case of an offence contrary to s114(1)(b) of the Crimes Act. His Honour had regard to the applicant's antecedent criminal history with respect to the sentence to be imposed for it. His remarks do not suggest that he took it into account in a manner inconsistent with the statement of the majority in Veen [No 2] that is set out at paragraph 34 above. It is to be noted that the maximum sentence was not imposed for this or for any of the offences. 40 In our view there were no errors of principle. We would dismiss Grounds 1 and 2.

ground 3 41 The applicant was charged with, and pleaded guilty to, resisting a police officer in the execution of his duty. That offence is created by s58 of the Crimes Act 1900 which is in the following terms: "58 Assault with intent to commit a serious indictable offence on certain officers

Whosoever: assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff's officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years." 42 At the commencement of his remarks on sentence the judge correctly stated the charge. However, towards the end of the sentencing remarks, when moving to a consideration of the seriousness of the various offences and the sentences he was about to impose, his Honour said: "to assault a police officer in the execution of his duty is a serious matter." 43 Again, one page further on, when imposing the sentences, his Honour said: "In relation to the offence of assaulting a police officer …" 44 The statement of facts gives no information about the manner in which the applicant was said to have resisted arrest. The police made it clear that Mr Johnson was under arrest. He was asked to get out of the car with his hands up. He failed to put his right hand in the air, despite repeated requests from the police. He had a concealed weapon (a stun gun), as well as a knife (in a pouch around his waist). It was a dangerous situation. Upon his refusal to raise his right hand, he was forcibly arrested. He resisted, asserting that he was physically injured in the struggle. 45 We accept the submission of senior counsel for the applicant that, generally speaking, an assault on a police officer would be regarded more seriously than resisting arrest. To describe the offence as one of "assault" was to elevate the offence to which the applicant pleaded guilty. 46 In response, counsel for the Crown pointed out (i) that during the early part of the sentencing remarks the judge clearly and accurately identified the offence; (ii) that s58 is headed "Assault with intent to commit a serious indictable offence on certain officers"; and (iii) that s58 creates a number of offences, all carrying the same maximum penalty of imprisonment. She argued that the criticised passages in the sentencing remarks should properly be seen as no more than a shorthand way of referring to the offence to which the applicant pleaded guilty. 47 We do not think the error can be explained away so easily. The Court is satisfied that an assault ought generally to be regarded more seriously than a charge of resisting arrest. The fact that the error was made twice, and at the very time the length of the sentence to be imposed was being considered and sentence then passed adds weight to the inference that his Honour misdirected himself in relation to the nature of the offence for which he was sentencing the applicant. The Court is satisfied that there is substance in this ground. Where it takes the applicant is a matter for later consideration.

ground four 48 Ground 4 concerns an alleged error by the sentencing Judge in respect of the injuries said to have been suffered by Mr Johnson in the course of his arrest. It should be noted that there was no evidence to suggest that the police had used more force than was reasonably necessary in effecting that arrest, such that the injuries might be regarded as a matter in mitigation. Nonetheless, it was suggested on behalf of the applicant, that his Honour was sceptical about the nature of the injuries in fact sustained. 49 We have above set out what appeared in the hospital records and the judge's reference to them. Plainly, his Honour was sceptical about the applicant's case in relation to the injury suffered by the applicant. In our opinion, the scepticism was not warranted. Firstly, the description of the "presenting problem" clearly indicates lacerations to the right temporal region. In another box, it is identified as "flank pain". The question mark which precedes the reference to bleeding from both ears may well mean that such a condition was not observed on examination, but that does not lead to the conclusion that the reported injury was not accepted in the hospital records. The applicant's son gave evidence of bleeding from both ears, and this was not challenged. In our view the statement by his Honour was not warranted by the evidence. That gives rise to a question as to what impact the error had on the sentence. In our opinion, this error takes the applicant's case nowhere. Acceptance of the detail of the applicant's claims of injury would not have made any difference to the sentence. Nor did the scepticism expressed operate to extend the sentence.

ground 5 50 The Crown concedes that an error occurred in the specification of the commencement date, because of the miscalculation by Gibson DCJ in sentencing the applicant in relation to the earlier offences. The sentences should be corrected to allow the applicant credit for the month by which the commencement of the sentence was wrongly delayed. That means that (absent any other variation) the sentences imposed in respect of counts one and two will commence, not on 30 August 2002, but on 31 July 2002; the sentences imposed in respect of counts three and four will commence, not on 30 August 2003, but on 31 July 2003; and the sentence imposed in respect of count five will commence, not on 30 August 2004, but on 31 July 2004. The expiration dates, both of the head sentences and non-parole periods, must be correspondingly corrected.

ground 6 51 In support of this ground, senior counsel for the applicant pointed to the sentences imposed by Judge Gibson as well as those now under consideration. The combined sentences involve a total period of imprisonment for eight years, six months and twenty-nine days, with a non-parole period of five years, six months and twenty-nine days. These sentences, although they involve seven separate charges, relate only to two separate incidents, the first on 25 March 1995 and the second on 1 February 2001. Prior to that, the last charges the applicant faced were for offences committed on 4 October 1977. The applicant was then thirty-one years of age. 52 Further, senior counsel pointed out that, in the light of Blackmore DCJ's stated intention to allow a discount for the pleas of guilty of about 20%, his starting point can be calculated to have been approximately eight years and nine months. He contended that this was manifestly excessive. 53 After careful consideration this Court has concluded that this last submission should not be accepted. The level of the applicant's criminality was high. He was in possession of a prohibited weapon and of a knife in a public place and of two unlicensed firearms, as well as a false identification representing that he held police officer status. We do not think the total of the sentences has been shown to be outside the range of a sound sentencing discretion. 54 What remains for consideration is the error in relation to the categorisation of the first count. In our opinion, his Honour did overstate the nature of the first offence for which the applicant was to be sentenced. In relation to that count, we would quash the sentence, and re-sentence the applicant to a fixed term of imprisonment for 15 months. The reason for imposing a fixed term is that the sentence will be wholly subsumed in the sentences applicable to the remaining counts. Unfortunately for the applicant, that makes no difference to the overall sentence. All other sentences must be varied, but only so as to adjust the commencement dates. 55 The orders the Court proposes are: i. Leave to appeal against each sentence granted: ii. Appeal against each sentence allowed in the following respects: count 1: sentence quashed; in lieu thereof, the applicant be sentenced to imprisonment for a fixed term of fifteen months, commencing on 31 July 2002; counts 2 - 5: all sentences to be adjusted so that they commence, respectively, on: count 2: 31 July 2002 count 3: 31 July 2003 count 4: 31 July 2003 count 5: 31 March 2004. Otherwise, appeals against sentence dismissed. **********

Last Modified: 04/22/2004 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.

CITATION : R v Johnson [2004] NSWCCA 76 HEARING DATE(S) : 5 March 2004 JUDGMENT DATE : 13 April 2004

CATCHWORDS : application for leave to appeal against severity of sentence - resist officer in execution of duty - possess housebreaking implements - possess unlicensed firearms - possess prohibited handgun - subjective circumstances - antecedent criminal record - correction of commencement dates of sentences LEGISLATION CITED : Crimes Act 1900, s58 Crimes (Sentencing Procedure) Act 1999, Division 3, Part 3, s21A, s44 Ibbs v The Queen (1987) 163 CLR 447 R v Johnson [2002] NSWCCA 492, unreported, 6 December 2002 CASES CITED : R v Shankley [2003] NSWCCA 253 R v Zamagias [2002] NSWCCA 17 Ryan v The Queen [2001] HCA 21; 206 CLR 267 Veen v R [No 2] (1988) 164 CLR 465 PARTIES : Crown - Respondent Applicant - Raymond Johnson FILE NUMBER(S) : CCA 60435/03 COUNSEL : Crown - E Wilkins Applicant - P Boulten SC SOLICITORS : Crown - S Kavanagh Applicant - C Watson

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