R v JOHNSTON [2001] NSWCCA 93

New South Wales Court of Criminal Appeal

CITATION : R v JOHNSTON [2001] NSWCCA 93 FILE NUMBER(S) : CCA 60435/00; 60844/00 HEARING DATE(S) : 23/03/2001 JUDGMENT DATE : 23 March 2001

PARTIES : REGINA v Shane Michael JOHNSTON JUDGMENT OF : Studdert J at 20; Barr J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0213; 00/31/0418 LOWER COURT JUDICIAL Job QC DCJ, English DCJ OFFICER :

COUNSEL : Crown: WL Robinson QC Applicant: M Thangaraj SOLICITORS : Crown: SE O'Connor Applicant: DJ Humphreys

DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60435/00 60844/00

STUDDERT J BARR J

Friday, 23 March 2001 REGINA v Shane Michael JOHSTON JUDGMENT

1 BARR J: Shane Michael Johnston seeks leave to appeal against sentences imposed upon him in the District Court. On 29 June 2000 he pleaded guilty before Job QC DCJ to three counts of breaking, entering and stealing. At the same time he asked his Honour to take into account five further matters under the provisions of the Crimes (Sentencing Procedure) Act. His Honour did so and on each charge sentenced the applicant to imprisonment for four years, commencing on 11 April 2000, and fixed a non-parole period of three years. 2 On 14 December 2000 the applicant pleaded guilty before English DCJ to one further offence of breaking, entering and stealing. It was an offence committed at about the same time as those which Job DCJ took into account and the particulars of it would have been dealt with under the provisions of the Crimes (Sentencing Procedure) Act before his Honour if it had not been overlooked. By the time the matter came before her Honour, of course, it was too late to deal with it in that manner. Her Honour sentenced the applicant to imprisonment for three years, also commencing on 11 April 2000, and fixed a non-parole period of two years and three months. 3 It is submitted that the total term imposed by Job DCJ was manifestly excessive. The length of the sentence imposed by English DCJ, surprisingly in view of the first submission, is not attacked. It is submitted that their Honours both fell into error in declining to fix non-parole periods that were less than three-quarters of the terms of the relevant sentences. 4 The applicant was twenty-five years old when he came up for sentence. He had been dealt with by the courts regularly since 1991, when he was sixteen years of age. His offences included a number of instances of assault and malicious damage, but were principally concerned with theft, breaking, entering and stealing, having stolen goods in his custody and the like. After giving him many chances by way of control orders, community service orders and the like, the courts began to pass sentences of detention. There were gaol terms and terms of home detention. By the time he came before Job DCJ he had served a number of fixed or minimum terms ranging up to six months. He told Job DCJ that he began offending because he was bored, continued to do so in order to earn money and most recently offended because he needed to buy heroin, to the use of which he had became addicted. 5 The applicant had been in custody since his arrest on 11 June 2000 and told his Honour that he had not used heroin since that day. He intended to stay off the drug. 6 He also told his Honour that threats had been made to him by somebody in the gaol system and that as a result he had been serving his sentence on protection at his own request. The three offences for which Job DCJ sentenced the applicant each attracted a maximum penalty of imprisonment of fourteen years. Three of the five matters taken into account were of the same kind. The criminality of the applicant was substantial. The facts were simple. On 30 March 2000 he forced open a sliding glass door of house premises at Buff Point. He entered the house and searched several rooms. He took a video recorder and some personal items of value. He was still in the house when the owner returned and although he got away the description and registration number of his motor vehicle were carefully noted. 7 On 3 April 2000 he forced his way into a house at San Remo and stole a video recorder and a colour television set. 8 On 11 April 2000 he forced entry into a house at Gorokan and took a television set and a stereo sound system. A neighbour saw some of what was happening and gave police details of the applicant's vehicle. He was arrested on the same day and stolen goods were found in the vehicle. 9 The three instances of breaking, entering and stealing to be taken into account all occurred in the Sydney metropolitan area. A charge of malicious damage was related to one of those breakings and entries. There was a charge of driving whilst disqualified. 10 His Honour noted the pleas of guilty and that the fact that the applicant would serve his sentences on protection would make them more onerous. His Honour observed that it was necessary to impose a reasonably lengthy sentence. 11 In my opinion, making proper allowance for the plea of guilty and the fact of protection but increasing the effective sentence to take account of the five matters, a total sentence of four years and a non-parole period of three years were well within the range of his Honour's sentencing discretion. 12 Submissions appear to have been made to Job DCJ, the effect of which was that the need of the applicant to stay away from heroin carried with it a need for a period on parole greater than one-quarter of the head sentence. As the sentences stand the applicant will have a year on parole during which he will be able to have his endeavours supervised by officers of the Probation and Parole Service. It is submitted that the Court should infer from the fact that Job DCJ did not use the expression "special circumstances" that his Honour did not consider at all whether the applicant would have sufficient time for rehabilitation if the period of parole were not increased from the prima facie statutory period. 13 His Honour is a most experienced sentencing judge. In view of the applicant's very serious criminal history and the seriousness of the offences for which Job DCJ had to sentence him, his Honour was entitled to come to the view, which I think was his view, that a non-parole period of less than three years would be insufficient to cope with the criminality of the applicant and give the public the protection it was entitled to expect the courts to afford. 14 It must have appeared to Job DCJ that a year on parole would be sufficient, balancing the need for rehabilitation with the other considerations in sentencing making for a full-time period of detention. Nothing that has been put on behalf of the applicant leads me to believe that his Honour was wrong in coming to that view or to the view that a non-parole period of three years was necessary because of the overall seriousness of the offences. 15 In a very real sense the applicant's addiction to the use of heroin has been so well established that he may need professional assistance for many years in the future, but it would be inappropriate to sentence him to imprisonment for a period long enough to enable that to be done under the supervision of the Probation and Parole Service. 16 The sentence imposed by English DCJ was also attacked. During her remarks her Honour observed that she had not been asked to "find special circumstances." That was a reference to the exercise of the discretion that her Honour had to increase the parole portion of the sentence. Her Honour expressed her dissatisfaction that the applicant's prospects of rehabilitation were good. 17 Two submissions were made about what her Honour said. First, that this Court should go behind that conclusion of fact because it could not be justified on the evidence before her Honour. The submission is in my opinion misconceived. This is not a court that finds primary facts and it seems to me that the conclusion was well open on the evidence before her Honour. 18 Secondly, her Honour is said to have somehow misled herself, if I understand the submission correctly, by coming to the conclusion that she was not entitled on that account to extend the period of parole. I do not think that her Honour said any such thing and I see no error in her Honour's reasoning. 19 In my opinion the periods of parole provided by Job DCJ and English DCJ were in all the circumstances appropriate and well within their Honours' sentencing discretion. I would grant leave to appeal, but would dismiss the appeals. 20 STUDDERT J: I agree with the orders of the Court that are proposed by Barr J. **********