R v JOHNSON [2004] NSWCCA 446

R v JOHNSON [2004] NSWCCA 446

The sentence was manifestly excessive and affected by an erroneous assessment of objective seriousness. Although the offence was serious and was aggravated by the applicant's prior record and commission while on conditional liberty, its objective features were below or in the lower part of the range considered in R v Henry because the spear gun had no spear, power head or pneumatic charge and was not in fact capable of killing or inflicting serious injury in its condition, the applicant did not display additional overt hostility, and he pleaded guilty very early. Appreciable allowance was also required for his mental condition, personal history, remorse, acceptance of responsibility,...

Jurisdiction
Australia
Judgment Date
08 December 2004
Procedural Posture
Application for Leave to Appeal Against Sentence in a Criminal Matter / Court of Criminal Appeal Resentencing After Guilty Plea and Sentence in the District Court
Outcome
Leave to appeal granted, appeal allowed, original sentence quashed, applicant resentenced.
Legal Topics
['armed Robbery' 'dangerous Weapon' 'manifestly Excessive Sentence' 'guideline Judgment' 'non Parole Period' 'special Circumstances' 'rehabilitation' 'mental Condition' 'conditional Liberty' 'early Guilty Plea']
['criminal Law' 'sentencing'] ['armed Robbery' 'dangerous Weapon' 'manifestly Excessive Sentence' 'guideline Judgment' 'non Parole Period' 'special Circumstances' 'rehabilitation' 'mental Condition' 'conditional Liberty' 'early Guilty Plea']

Case Brief

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Procedural Posture

Application for Leave to Appeal Against Sentence in a Criminal Matter / Court of Criminal Appeal Resentencing After Guilty Plea and Sentence in the District Court

Legal Issues

  1. 1 ['Whether leave to appeal against sentence should be granted.' 'Whether the sentencing judge erred in assessing the objective seriousness of the armed robbery as towards the upper mid range.' 'Whether the original sentence of a 6 year non-parole period and 3 year balance of term was manifestly excessive.' "What sentence should be imposed on resentencing having regard to the objective circumstances, the applicant's record, mental condition, plea, remorse, rehabilitation prospects and progress in custody."]

Ratio Decidendi

The sentence was manifestly excessive and affected by an erroneous assessment of objective seriousness. Although the offence was serious and was aggravated by the applicant's prior record and commission while on conditional liberty, its objective features were below or in the lower part of the range considered in R v Henry because the spear gun had no spear, power head or pneumatic charge and was not in fact capable of killing or inflicting serious injury in its condition, the applicant did not display additional overt hostility, and he pleaded guilty very early. Appreciable allowance was also required for his mental condition, personal history, remorse, acceptance of responsibility,...

Court Disposition

Leave to appeal granted, appeal allowed, original sentence quashed, applicant resentenced.

Orders

  • ['Leave to appeal is granted.' 'Appeal is allowed.' 'Sentence imposed by Judge English on 29 August 2003 is quashed.' 'The Applicant is sentenced to imprisonment for a non-parole period of 2 years and 6 months commencing on 3 May 2003 and a balance of term of 2 years during which time the Applicant shall be eligible...