Regina v Jason Lisle JOHNSON [1999] NSWCCA 431 | Case summary

3 SULLY J: Mr. Jason Lisle Johnson, ["the applicant"], applies for leave to appeal against the asserted severity of sentences imposed on him on 4 February 1999, and by his Honour Judge Ford QC, sitting in the District Court at Campbelltown. The application was heard by the Court in conjunction with the hearing of the Attorney-General's application which has resulted in the issue this morning of a guideline judgment in respect of offences contravening s.112(1) of Crimes Act 1900 (NSW). 4 On 13 November 1998 the applicant was arraigned before Judge Ford. He entered pleas of guilty to seven counts, each of which charged him with a contravention of s.112(1) of the Crimes Act. He was remanded in custody for sentence. 5 On 4 February 1999 the applicant again appeared before Judge Ford. On this occasion, the applicant asked his Honour to take into account in connection with his sentencing upon the seven pleas of guilty earlier entered, eighteen further offences. Of those further offences, twelve were offences of breaking, entering and stealing; two were offences of breaking, entering and stealing with intent; one was an offence of entering enclosed lands without lawful excuse; one was an offence of having in custody goods reasonably suspected of having been stolen; one was an offence of possessing a prohibited drug; and one was an offence of driving a motor vehicle whilst unlicensed. 6 Of the seven offences to which the applicant originally pleaded guilty, one occurred in June 1995, a second in August 1995, and the remaining five offences were committed at various dates in March and April of 1997. Of the eighteen additional matters which the applicant asked to be taken into account, one occurred in December 1996, and the remaining seventeen occurred on various dates in April, May and December of 1997. 7 Each of the seven offences of breaking, entering and stealing to which the applicant originally pleaded guilty carried, upon conviction, a statutory maximum penalty of penal servitude for 14 years. The sentences in fact passed were structured as follows: on one count of the seven, the applicant was sentenced to penal servitude for 6 years, divided equally between minimum and additional terms. In respect of that sentence, his Honour Judge Ford took into account the eighteen additional matters to which reference has previously been made. On each of the remaining six of the seven original counts, his Honour imposed a fixed term of penal servitude for 3 years. All sentences were dated so as to be served concurrently. The sentences took into account pre-sentence custody; and it was not submitted to this Court that the sentencing Judge had made any error in that respect. 8 In terms of the relevant objective facts, the criminality of the applicant was substantial. The applicant was aged 26 years and some 5 months when he stood for sentence; and he is now aged a little over 27 years. The applicant has a very extensive criminal record, extending back to September 1988 when he was just a little over 16 years of age. The record contains a number of entries for offences of breaking, entering and stealing. Over the years, the applicant has been dealt with in various ways for offences of that kind; and on some such occasions has served sentences of imprisonment or penal servitude. 9 The applicant, when he stood for sentence, had a very strong subjective case. It is not necessary to detail the applicant's past sad and dysfunctional personal and familial background. A fair overview of the applicant's situation is contained, I think, in the following extract from the learned sentencing Judge's remarks on sentence: "Now ordinarily the great number of offences which you have committed would require that I impose a substantial period of full time custody. However, it seems to me that what is absolutely imperative at this stage is to impose a sentence which will not only inflict some penalty upon you but would also give you a fair chance of rehabilitating yourself given that you are willing to enter a rehabilitation unit such as the centre known as the Lindon Community at Canowindra. If you were to enter that sort of community you would no doubt have a much better prospect of regaining sufficient stability to live in open society and perhaps obtain gainful employment rather than carry on the sort of thefts, the break and enters which you have committed now over a period of some years." [Remarks on Sentence at 3] 10 It was submitted for the applicant that the learned sentencing Judge had fallen into error "in not assessing the eligibility of the applicant for entry into the 'Drug Court' when requested". It will be necessary to return presently to that particular submission. 11 Before doing so, it is expedient to consider, first, whether the sentences imposed have been shown, that one particular ground of appeal set aside for the moment, to have been manifestly excessive so as to warrant the intervention of this Court. If that question be tested according to proper principle which is not referred particularly to the guidelines established in this morning's guideline judgment, I am of the opinion that the sentences have not been shown to be so manifestly excessive. Given the pattern of the offences; their obvious objective criminality; the applicant's antecedents; and the statutory maximum penalty applicable in the case of each of the seven indicted offences; I would not accept that a totally effective sentence of penal servitude for six years, being a sentence imposed in respect of, effectively, twenty-five separate offences, could fairly be regarded as calling for the intervention of this Court. 12 If, in addition to the foregoing considerations, there be brought to account the sentencing guidelines which are established by this morning's guideline judgment, then the sentences imposed upon the applicant are, in my opinion, even more sustainable. 13 Turning, next, to the particular ground of appeal earlier mentioned, it is expedient to begin by noting the relevant provisions of the Drug Court Act 1998 (NSW). That Act is described, in its long title, as being: "an Act to provide for the establishment of the Drug Court of New South Wales, for the referral of drug offenders to the Drug Court, and for the supervision of drug programs by the Drug Court:………………." 14 The Drug Court Act came into operation, relevantly, on 5 February 1999; that is to say, on the day following the day upon which sentence was passed upon the applicant. 15 The statutory objects of the Drug Court Act are defined as follows in section 3: "(1) The object of this Act is to reduce the level of criminal activity that results from drug dependency. (2) This Act achieves that object by establishing a scheme under which drug dependent persons who are charged with criminal offences can be diverted into programs designed to eliminate, or at least reduce, their dependency on drugs. (3) Reducing a person's dependency on drugs should reduce the person's need to resort to criminal activity to support that dependency and should also increase the person's ability to function as a law abiding citizen." 16 Section 6 of the Act is in the following terms: "Courts may refer persons to Drug Court (1) This section applies to such courts and proceedings as are prescribed by the regulations. (2) It is the duty of a court before which a person is charged with an offence: (a) to ascertain whether the person appears to be an eligible person, and (b) if so, to ascertain whether the person is willing to be referred to the Drug Court to be dealt with for the offence, and (c) if so, to refer the person to the Drug Court to be dealt with for the offence. (3) The power conferred on a court by this section is to be exercised as soon as practicable after the person is charged with the offence." 17 The reference in s.6(2)(a) to "an eligible person" is a reference to such a person as defined in s.5 of the Act. That section provides, relevantly, as follows: "(1) A person is an eligible person if: (a) the person is charged with an offence, other than an offence referred to in subsection (2), and (b) the facts alleged in connection with the offence, together with the person's antecedents and any other information available to the court, indicate that it is likely that the person will, if convicted, be sentenced to imprisonment, and (c) the person has pleaded guilty to, or indicated that he or she intends to plead guilty to, the offence, and (d) the person appears to be dependent on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985) or other drugs prescribed by the regulations, and (e) the person satisfies such other criteria as are prescribed by the regulations. (2) A person is not an eligible person if the person is charged with: (a) an offence punishable under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985, not being an offence that (under Part 9A of the Criminal Procedure Act 1986) is capable of being dealt with summarily, or (b) an offence involving violent conduct or sexual assault, or (c) any other offence of a kind prescribed by the regulations." 18 Regulations have been prescribed under the Act. Regulation 6 provides that, for the purposes of s.6(1) of the Act, "the District Court, in respect of all criminal proceedings brought before it in its sittings at Campbelltown, Liverpool, Parramatta or Penrith" is a prescribed Court. 19 Regulation 5 establishes criteria as contemplated by s.5(1)(e) of the Act. Those criteria are, relevantly: "5. For the purposes of section 5(1)(e) of the Act, the following criteria are prescribed as criteria that a person must satisfy in order to be an eligible person within the meaning of the Act: (a) the person's usual place of residence must be within one of the following local government areas, namely, Auburn, Bankstown, Baulkham Hills, Blacktown, Campbelltown, Fairfield, Hawkesbury, Holroyd, Liverpool, Parramatta or Penrith, (b) ….." 20 Consideration can now be given to what actually occurred, within the foregoing statutory context, at the hearing on 4 February last. 21 Both the applicant's legal representative, and the Crown Prosecutor, made submissions to the sentencing Judge. In each case, the submissions were brief; but they were clear and to the point. His Honour was asked to give particular weight to the matter of the applicant's rehabilitation from a well-entrenched heroin addiction. It was explained to his Honour, and in the words of the actual submission: "This period of time in custody, Mr. Johnson has done quite difficult - with some difficulty, he has spent approximately three months in the psychiatric ward at Long Bay institution. He spent a further six months in the Crisis Support Programme at Long Bay and he's currently doing his time in protective custody." 22 His Honour, having heard all the submissions on sentence, said that he had "just been wondering whether it may not be feasible to refer this matter to the new Drug Court that has been established". It appears from the relevant transcript that the proceedings were then let stand in the list while everybody concerned gave some thought to that tentative suggestion of his Honour. 23 In due course the Court reconvened; and his Honour invited submissions concerning his previous suggestion. It is clear from what followed that both the Crown Prosecutor and the applicant's representative were not well informed about the structure and operation of the newly legislated scheme. The applicant's representative was particularly concerned about the eligibility of the applicant in so far as that eligibility was conditional upon his being able to fulfil the requirements of Regulation 5(a) as to his "usual place of residence". 24 What then ensued is best explained by reference to the relevant transcript. "HIS HONOUR: Tell me, briefly, do you agree with the suggestion or not? HAMILTON: Well your Honour, if I was more clear on what the criteria were for usually live in the area, then if in fact he fit those criteria, yes I would be making such an application. HIS HONOUR: I am perfectly willing to deal with him now, if you wish me to do so. HAMILTON: Perhaps your Honour, I could make such an application and the determination of usually live in could be decided at this stage. HIS HONOUR: Would you say that again? HAMILTON: I am sorry your Honour. Perhaps I could make the application at this stage and perhaps then it would be to your Honour to decide whether or not he met the criteria of usually live in Western Sydney. HIS HONOUR: You think that it maybe a good idea? HAMILTON: I think, if in fact he fit -- HIS HONOUR: No please, don't move away from the speaker. Yes, go on. HAMILTON: If he were to fit the criteria, yes I would be willing to make such an application and wishing to have such an application. However, I am uncertain and have no guidelines as to what is usually live in the Western Sydney region and I'd be misleading the court to suggest that he did. HIS HONOUR: All right, well you do not adopt the suggestion? HAMILTON: I do adopt it your Honour, yes or make such an application your Honour, however I don't mean to -- HIS HONOUR: Please move back. HAMILTON: I don't mean to be saying to your Honour that I am putting to the court that Mr. Johnson usually lives in the Sydney Western Region, because it is my understanding that that is probably not the case.. HIS HONOUR: Yes, very well, I will proceed then to deal with the matter. HAMILTON: Thank you, your Honour." 25 Before this Court, learned Senior Counsel for the applicant submitted that the effect of what happened at the relevant hearing was that the applicant was wrongly "deprived of assessment for the opportunity of availing himself of the Drug Court as an appropriate sentencing option". 26 The short answer to that submission is, in my opinion, that it is not a fair rendering of what in fact took place on the relevant occasion. The legislation in question was novel; had only recently been enacted; and was not yet in force. Nobody had any idea of how the legislation might turn out in practice. I think that it is a fair inference from what is recorded that both the applicant's then representative and the Crown Prosecutor were taken by surprise by the suggestion made by his Honour. In that situation, it would have been entirely proper and appropriate for the applicant's legal representative to have sought a short adjournment to a date after the coming into operation of the Drug Court Act. It is, in my opinion, a fair inference from what took place on 4 February that his Honour, had such an application been made, would more probably than not have granted it in order that some proper information might be put together and presented in connection with the eligibility of the applicant for consideration in terms of the provisions of the Drug Court Act. 27 No such application was in fact made. My reading of the relevant transcript has left me with the impression, (although I acknowledge that I can put the point no higher), that the applicant's then legal representative got what information she could; discerned, correctly as I think, that there appeared to be real problems in fitting the applicant's "usual place of residence" into the relevant provisions of Regulation 5; and decided thereupon that it was probably better, from the applicant's own point of view, to bring his sentencing to finality, rather than to put it off. I do not imply any criticism of either that judgment or that decision. I do no more than observe that, in my opinion, it is a reasonable inference that the applicant's legal representative did in fact consider his Honour's suggestion; and did in fact decide, for what I think were understandable reasons, to have the sentencing proceedings finalised without further delay. 28 In those circumstances, I do not think that it has been demonstrated that the learned primary Judge fell into error at all in connection with what was, as I think, nothing more than speculation on his Honour's part that it might possibly be worth the applicant's while to consider the availability of a reference under the Drug Court Act, after that legislation had come into operation. 29 In my opinion, therefore, the applicant has not demonstrated such error as would warrant the present intervention of this Court. 30 In my opinion the Court should order:

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Regina v Jason Lisle JOHNSON

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