New South Wales Court of Criminal Appeal CITATION : Regina v Johnson [2004] NSWCCA 341 HEARING DATE(S) : 27/9/04 JUDGMENT DATE : 27 September 2004 JUDGMENT OF : Wood CJ at CL at 1, 9; Barr J at 7; Hoeben J at 8 DECISION : Leave to appeal granted. Appeal dismissed. CATCHWORDS : CRIMINAL LAW - receive stolen goods - plea of guilty - appeal against severity of sentence - whether sentencing judge properly considered utilitarian value of plea - whether sentence manifestly excessive - appeal dismissed. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 - s 21A(2)(j) Criminal Appeal Act 1912 - s 6(3) R v Deluca [2002] NSWCCA 446 R v Lloyd [2003] NSWCCA 49 R v Readman (1990) 47 A Crim R 181 CASES CITED : R v Simpson (2001) 53 NSWLR 704 R v Sutton [2004] NSWCCA 225 R v Thomson (2000) 49 NSWLR 383 R v Vranic NSWCCA 7 May 1991 R v Young [2003] NSWCCA 276 PARTIES : Regina Shane Nathan Johnson FILE NUMBER(S) : CCA 2004/1882; (formerly 60233/04) COUNSEL : G Rowling (Crown) A Francis SOLICITORS : S Kavanagh (Crown) S E O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0262 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER : - 3 - IN THE COURT OF CRIMINAL APPEAL 2004/1882 WOOD CJ at CL BARR J HOEBEN J Monday 27 September 2004 Regina v Shane Nathan Johnson Judgment 1 WOOD CJ at CL: On 3 October 2003 the Applicant was sentenced by his Honour Patten DCJ to imprisonment for four years with a non-parole period of two years, each to date from 15 March 2003, for an offence of receiving, to which he had pleaded guilty in the Local Court. 2 The property in question consisted of a quantity of jewellery and a knife, which had previously been stolen from David Plummer, and which the Applicant acknowledged having received for the purpose of sale so as to finance the purchase of drugs. 3 On first blush the sentence might appear severe for a single offence of receiving in respect of which a plea of guilty had been offered. In that regard, counsel for the Applicant submits that error has been disclosed in that, while his Honour said: "he is to be sentenced for a crime, the maximum penalty for which is imprisonment for ten years, and although he is entitled to the benefit of his plea of guilty, there must, I think, be a significant custodial sentence imposed", the extent of that benefit or discount for it was not disclosed. 4 In my view, this is an application for leave to appeal that is devoid of merit for the following reasons: (a) The sentencing judge was not bound to expressly quantify the discount so long as it was clear that the offender had the fact of the plea appropriately taken into account in his favour: R v Thomson (2000) 49 NSWLR 383 at para 160 per Spigelman CJ, and R v Deluca [2002] NSWCCA 446 at para 15 per Bell J. The observations of Howie J in R v Sutton [2004] NSWCCA 225 at paras 16 to 17, as to the desirability of judges nominating the utilitarian value of a plea were timely, in so far as such a disclosure is capable of reassuring offenders that their pleas have been properly taken into account, thereby potentially avoiding the incidence of appeals. His Honour's remarks, however, expressly did not qualify what was decided in Thomson . Neither did the decisions in R v Lloyd [2003] NSWCCA 45 and R v Young [2003] NSWCCA 276 which were cited by the Applicant in argument. (b) Where the discount is not nominated, then it becomes necessary, as it does here, for the Court to review the sentence as a whole in order to determine whether the plea was given sufficient weight and whether, for that reason or otherwise, it was manifestly excessive. (c) In the present case, the sentence could not be said to have been manifestly excessive once it is appreciated that it was directed to be served concurrently with a sentence which, having been passed on 28 June 2002 for an offence of break and enter with intent to steal, had thereafter been converted from a suspended sentence to one of full-time custody for two years with a non-parole period of one year, commencing on 15 March 2003. That had occurred as a result of a number of subsequent offences which were dealt with in Local Courts between 28 June 2002 and the time of the Applicant's arrest for the present offence. The effective result was to add two years to the overall head sentence and one year to the overall non-parole period. (d) Moreover, the seriousness of the offence was aggravated by the fact that the Applicant had re-offended during a period of conditional liberty (see R v Readman (1990) 47 A Crim R 181, R v Vranic NSWCCA 7 May 1991 and s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999 ), and by the fact that he had a lengthy criminal record in New South Wales and Queensland for offences of dishonesty, as well as a history of anti-social behaviour, which had seen him serve a number of custodial sentences. (e) While the motivation for the offences arose from the Applicant's drug addiction, a problem which he had attempted but failed to address, that was a factor which provided a reason for the offending rather than a circumstance operating in mitigation. (f) His Honour expressly did not overlook the support provided by the Applicant's parents, his desire to secure rehabilitation, his remorse and insight, and the fact that his custodial condition might be somewhat harsh because of a prior conviction for escape. However, these were insufficient to overcome the significance of his earlier record and the fact of his re-offending while at conditional liberty, each of which matters were required to be taken into account under s 21A(2)(d) and (j). The favourable factors and the potential availability of employment were appropriately reflected in the finding of special circumstances which led to a significant reduction in the non-parole period. 5 I am not persuaded, once these circumstances are taken into account, that a lesser sentence was warranted in law and should have been imposed (see s 6(3) Criminal Appeal Act 1912 and R v Simpson (2001) 53 NSWLR 704 at 79-80 per Spigelman CJ and at para 100 per Sully J). 6 I would grant leave to appeal but I would dismiss the appeal. 7 BARR J: I agree. 8 HOEBEN J: I agree. 9 WOOD CJ at CL: The order of the Court will, therefore, be as I have proposed. ********** Last Modified: 09/29/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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