Regina v Johnson [2005] NSWCCA 186

Regina v Johnson [2005] NSWCCA 186

The sentencing judge erred by treating the 'violence of a sexual character' as an aggravating factor, as it is inherent in the offence of sexual assault, amounting to double counting. The judge's discretion as to commencement dates also miscarried by not backdating to the conclusion of the prior non-parole period. However, after reviewing the circumstances and the range of available sentences, the effective total sentence imposed was not outside the appropriate range, but the commencement dates should be varied as specified.

Parties
Prosecutor: Regina; Appellant: David Frederick Johnson
Jurisdiction
Australia
Judgment Date
20 May 2005
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Decision on Sentence Appeal
Outcome
Appeal upheld in part – sentences varied as to commencement dates only; effective total sentence and non-parole period unchanged
Legal Topics
Sentencing, Aggravating and Mitigating Factors, Double Counting, Concurrent Sentences, Commencement of Sentence, Appeal Against Sentence
Criminal Law Sentencing Aggravating and Mitigating Factors Double Counting Concurrent Sentences Commencement of Sentence Appeal Against Sentence

Case Brief

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Parties

Regina

Prosecutor

David Frederick Johnson

Appellant

Procedural Posture

Criminal Appeal / Court of Criminal Appeal Decision on Sentence Appeal

Legal Issues

  1. 1 Whether the sentencing judge erred by taking into account as an aggravating factor the violence inherent in the offence of sexual assault
  2. 2 Whether there was an error in not backdating the sentences to take account of pre-sentence custody

Ratio Decidendi

The sentencing judge erred by treating the 'violence of a sexual character' as an aggravating factor, as it is inherent in the offence of sexual assault, amounting to double counting. The judge's discretion as to commencement dates also miscarried by not backdating to the conclusion of the prior non-parole period. However, after reviewing the circumstances and the range of available sentences, the effective total sentence imposed was not outside the appropriate range, but the commencement dates should be varied as specified.

Court Disposition

Appeal upheld in part – sentences varied as to commencement dates only; effective total sentence and non-parole period unchanged

Orders

  • Leave granted to appeal the sentences imposed on 9 July 2004.
  • Appeal upheld – sentences varied to commence on specified dates: