R v Johnston [2021] NSWDC 321

R v Johnston [2021] NSWDC 321

The application for a permanent stay failed because the ex officio indictment did not deprive the applicant of a fair trial or amount to unacceptable injustice. The applicant had only lost an accidental sentencing advantage arising from the prosecutor's ineffective implementation of the Director's election, and any suggested injustice was theoretical because he could still make sentencing submissions in the District Court. Public confidence in the administration of justice favoured allowing a sentencing court to impose a just sentence unconstrained by s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW), rather than preserving the applicant's fortuitous advantage.

Jurisdiction
Australia
Judgment Date
16 July 2021
Procedural Posture
Criminal Procedural Ruling / Application for a Permanent Stay of Proceedings on an Ex Officio Indictment
Outcome
Application for permanent stay refused.
Legal Topics
['permanent Stay' 'abuse of Process' 'ex Officio Indictment' 'election for Trial on Indictment' 'sexual Touching Offence' 'local Court Sentencing Limitation']
['criminal Procedure' 'criminal Law' 'sentencing'] ['permanent Stay' 'abuse of Process' 'ex Officio Indictment' 'election for Trial on Indictment' 'sexual Touching Offence' 'local Court Sentencing Limitation']

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Procedural Posture

Criminal Procedural Ruling / Application for a Permanent Stay of Proceedings on an Ex Officio Indictment

Legal Issues

  1. 1 ['Whether the ex officio indictment amounted to an abuse of process warranting a permanent stay.' 'Whether the Director of Public Prosecutions could proceed by ex officio indictment after the applicant had pleaded guilty and facts had been tendered in the Local Court.' "Whether loss of the applicant's advantage under s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which would have limited the Local Court's sentencing options, generated unfairness or injustice justifying a permanent stay." 'Whether public confidence in the administration of justice favoured staying the indictment or allowing the matter to proceed in the District Court.']

Ratio Decidendi

The application for a permanent stay failed because the ex officio indictment did not deprive the applicant of a fair trial or amount to unacceptable injustice. The applicant had only lost an accidental sentencing advantage arising from the prosecutor's ineffective implementation of the Director's election, and any suggested injustice was theoretical because he could still make sentencing submissions in the District Court. Public confidence in the administration of justice favoured allowing a sentencing court to impose a just sentence unconstrained by s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW), rather than preserving the applicant's fortuitous advantage.

Court Disposition

Application for permanent stay refused.

Orders

  • ['The application for permanent stay is refused.']