Regina v Johnson [2005] NSWCCA 186

New South Wales Court of Criminal Appeal

CITATION: Regina v Johnson [2005] NSWCCA 186

HEARING DATE(S): 27 April 2005

JUDGMENT DATE: 20 May 2005

JUDGMENT OF: Hunt AJA at 1-49, 58; Hulme J at 50-56; Johnson J at 57

DECISION: 1.Leave is granted to appeal against the sentences imposed by Judge Norrish on 9 July 2004. ; 2.The appeal is upheld, and the sentences are varied in relation to their commencing dates, so that they are now in the following terms: On the first count, for aggravated break and enter and stealing - a fixed term of imprisonment for three years, commencing on 20 November 2003 and expiring on 19 November 2006. On the second count, for sexual intercourse without consent - a fixed term of imprisonment for eight years and one month, commencing on 20 November 2003 and expiring on 19 December 2011. On the third count, for aggravated break and enter and sexual intercourse without consent - a total term of imprisonment for nine years, commencing on 20 November 2008 and expiring on 19 November 2017, with a non-parole period of four years, commencing on 20 November 2008 and expiring on 19 November 2012, on which date the applicant will be eligible for release on parole. The effective total sentence remains unchanged as one of imprisonment for fourteen years with a combined non-parole period of nine years.

CATCHWORDS: Sentencing - aggravating factors - elements of crime - double counting. Backdating commencement of sentence when there has been pre-sentence custody. Criminal Appeal Act s 6(3) - when another sentence in substitution for that imposed is warranted in law.

Crimes Act 1900 (NSW) Crimes Act 1914 (Cwth) Crimes (Administration of Sentences) Act 1999 Crimes Legislation Amendment (Sentencing) 1999 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure ) Amendment (Standard Minimum Sentencing) Act 2000 Criminal Appeal Act 1912 Interpretation Act 1987 Crimes (Administration of Sentences) Regulation 2001