Johnsson v Regina [2007] NSWCCA 192

Johnsson v Regina [2007] NSWCCA 192

The sentencing judge was obliged to make a recognizance release order because the aggregate federal sentence did not exceed three years, and there was no statutory barrier to ordering that the sentence of imprisonment be served by way of periodic detention. Section 44 of the Crimes (Sentencing Procedure) Act 1999 did not apply because no non-parole period could be fixed. Although the judge mistakenly referred to s 4K of the Crimes Act 1914 (Commonwealth), the sentences were imposed on each charge with concurrent service for each pair of charges, so the error had no operative consequence. Given the duration and seriousness of the social security fraud, the amount overpaid, the repeated...

Jurisdiction
Australia
Judgment Date
13 July 2007
Procedural Posture
Application for Leave to Appeal Against Severity of Sentence for Commonwealth Offences / Court of Criminal Appeal Sentence Appeal
Outcome
Leave to appeal against sentence granted; appeal dismissed.
Legal Topics
['dishonestly Obtaining Social Security Benefits' 'defrauding a Commonwealth Public Authority' 'recognizance Release Order' 'periodic Detention' 'non Parole Period' 'manifest Excess']
['criminal Law' 'sentencing' 'commonwealth Offences'] ['dishonestly Obtaining Social Security Benefits' 'defrauding a Commonwealth Public Authority' 'recognizance Release Order' 'periodic Detention' 'non Parole Period' 'manifest Excess']

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Procedural Posture

Application for Leave to Appeal Against Severity of Sentence for Commonwealth Offences / Court of Criminal Appeal Sentence Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in imposing a sentence of imprisonment to be served by periodic detention with a recognizance release order under the Crimes Act 1914 (Commonwealth).' 'Whether the sentencing judge erred by failing to consider s 44 of the Crimes (Sentencing Procedure) Act 1999 when ordering periodic detention.' 'Whether the sentencing judge erred in applying s 4K of the Crimes Act 1914 (Commonwealth) to impose two aggregate sentences for indictable offences.' 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The sentencing judge was obliged to make a recognizance release order because the aggregate federal sentence did not exceed three years, and there was no statutory barrier to ordering that the sentence of imprisonment be served by way of periodic detention. Section 44 of the Crimes (Sentencing Procedure) Act 1999 did not apply because no non-parole period could be fixed. Although the judge mistakenly referred to s 4K of the Crimes Act 1914 (Commonwealth), the sentences were imposed on each charge with concurrent service for each pair of charges, so the error had no operative consequence. Given the duration and seriousness of the social security fraud, the amount overpaid, the repeated...

Court Disposition

Leave to appeal against sentence granted; appeal dismissed.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal dismissed.']