Johnson v R [2021] NSWCCA 13

Johnson v R [2021] NSWCCA 13

It was an error to treat the mere presence of children as an aggravating factor for Count 1, absent evidence of their awareness. An identical error was properly conceded for Count 2. Since sentence was thereby infected by error, the Court must resentence afresh.

Jurisdiction
Australia
Judgment Date
17 February 2021
Procedural Posture
Criminal Appeal / Appeal Against Sentence; Resentence
Outcome
Appeal upheld; resentence imposed
Legal Topics
['sentencing Appeals' 'sexual Offences Against Children' 'circumstances of Aggravation' 'error in Sentencing' 'aggregate Sentencing']
['criminal Law'] ['sentencing Appeals' 'sexual Offences Against Children' 'circumstances of Aggravation' 'error in Sentencing' 'aggregate Sentencing']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal Against Sentence; Resentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding the presence of children was an aggravating factor for Counts 1 and 2.' 'Whether the sentencing judge erred in admitting evidence of uncharged material (Exhibit B).' 'Whether the original sentence was manifestly excessive.']

Ratio Decidendi

It was an error to treat the mere presence of children as an aggravating factor for Count 1, absent evidence of their awareness. An identical error was properly conceded for Count 2. Since sentence was thereby infected by error, the Court must resentence afresh.

Court Disposition

Appeal upheld; resentence imposed

Orders

  • ['Extension of time to file Notice of Grounds of Appeal to 8 May 2020.' 'Leave to appeal granted.' 'Appeal upheld.' 'Aggregate sentence by Wilson SC DCJ on 1 October 2019 quashed.' 'Aggregate sentence of 24 years imprisonment commencing 25 August 2017 to 24 August 2041, with a non-parole period of 18 years imposed.'...