Johnson v New Zealand Police

[2023] NZHC 3748

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2023-454-39

[2023] NZHC 3748

BETWEEN

JOSEPH WILLIAM JOHNSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	14 December 2023
Appearances:	D M Goodlet for Appellant G L Duncan for Respondent
Judgment:	18 December 2023

JUDGMENT OF LA HOOD J

(appeal against sentence)

[1]                 Joseph Johnson appeals against a sentence of 22 months and two weeks’ imprisonment imposed by Judge J Krebs1 on six charges of driving while suspended or revoked (third or subsequent offence),2 and one charge of unlawful possession of a firearm.3

[2]                 The issue on appeal is whether the sentence should have been commuted to home detention. Ms Goodlet, for Mr Johnson, argues that as this was a borderline case it was incumbent on the District Court Judge to conduct an adequate balancing exercise and clearly articulate why imprisonment was required.

1      Police v Johnson [2023] NZDC 26383 [Sentencing Notes].

2      Land Transport Act 1998, ss 32(1)(c) and 32(4): maximum penalty of two years’ imprisonment or a fine of $6,000.

3      Arms Act 1983, s 45(1): maximum penalty of four years’ imprisonment or a $5,000 fine.

JOHNSON v NEW ZEALAND POLICE [2023] NZHC 3748 [18 December 2023]

[3]                 In Tutakangahau v R the Court of Appeal confirmed the long-standing approach to sentence appeals was not altered by s 250 of the Criminal Procedure Act 2011. The appellant must show a material error was made and that a different sentence ought to be imposed.4 In most sentence appeals brought by a defendant, the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.5 The Court said sentencing “is not a science” and an “appellate court does not start afresh nor simply substitute its own opinion for that of the original sentencer.”6

[4]                 In R v Palmer the Court of Appeal confirmed that this approach is applicable to an appeal against a decision not to commute a sentence of imprisonment to home detention.7 The Court noted that such a decision calls for a case by case exercise of judgment against the principles and purposes of sentencing, and that these can sometimes point in opposing directions. Absent an error of principle, the appeal came down to whether imprisonment was clearly excessive.8 The Court said:9

As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.

[5]                 The Court of Appeal in R v D (CA253/2008) also said that in borderline cases “the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight.”10

[6]                 The “well-engrained”11 error principle articulated in these decisions recognises that reasonable minds can differ about where an appropriate sentence should sit within an available range. It reflects underlying purposes important to the effective

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

5      At [30]–[36].

6      At [30] and [35].

7      Palmer v R [2016] NZCA 541.

8 At [24].

9      At [19], citing R v D (CA253/2008) [2008] NZCA 254 at [66].

10 At [66].

11     Tutakangahau v R, above n 4, at [34]–[35].

administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.

[7]                 Accordingly, the issues on this appeal are whether there has been a material error that means a different sentence should be imposed and, if not, whether there has been an error because a sentence of imprisonment was manifestly excessive.

[8]  For the reasons set out below, I am not persuaded that the Judge erred in the manner required. It was open to the Judge to conclude that the possession of the firearm, combined with Mr Johnson’s criminal history and gang involvement, tipped the balance against home detention. Whether another Judge may have been more lenient is irrelevant. I also do not accept that the Judge’s succinct reasoning establishes a material error that has led to a manifestly excessive sentence.

The relevant background

[9]                 Mr Johnson has 17 previous convictions for driving while disqualified, suspended or forbidden in some form. Before Judge Krebs on 23 November 2023, he was sentenced for his 18th to 23rd offence of this type having been found to be driving when he was not entitled to on 4 February, 5 February,  16 February,  26 February,  10 May and 1 June 2023.

[10]              On 1 June at 1.55 am, police spoke to Mr Johnson while parked in his car on Main Street, Palmerston North. They smelt cannabis and conducted a warrantless search for drugs. The search uncovered a fully loaded and holstered .22 calibre pistol in the driver’s footwell. Mr Johnson does not hold a firearms licence. As was his right, he declined to make a statement about the firearm.

[11]              Mr Johnson pleaded guilty the charges. His explanation of the firearm offending was that he heard about someone in possession of a gun, was concerned about public safety and so went and retrieved the gun from its original holder. The respondent supports the Judge’s rejection of this claim given Mr Johnson’s status as president of the local chapter of the Mongrel Mob gang at a time when gang tensions were running high in Palmerston North.

District Court’s decision

[12]              The Judge adopted a starting point of eight months’ imprisonment for the first driving charge, uplifted by 12 months for the remaining charges. This was further uplifted by 12 months for the firearm offending. The 32-month sentence was reduced by 25 per cent for Mr Johnson’s early guilty plea and a further one and a half months for time spent on EM bail, bringing the end sentence to 22 months and two weeks’ imprisonment.

[13]              In reaching the decision that imprisonment was required the Judge considered the submission that Mr Johnson may have suffered a head injury at age 17;12 said that Mr Johnson obtaining his full licence was very positive, but as long as he remained associated with the Mongrel Mob it would not be possible to refrain from offending;13 did not accept the provision of advice to the court (PAC)  report’s assessment that  Mr Johnson was at medium risk of re-offending, instead assessing Mr Johnson as very high risk;14 rejected Mr Johnson’s explanation for his possession of the pistol;15 noted that nothing seemed to make Mr Johnson respect directions not to drive, as demonstrated by his 17 previous convictions;16 and concluded that given the circumstances of the possession of the loaded pistol in a heightened gang context, and Mr Johnson’s criminal history, a condign response was required.17

Assessment of the arguments and decision

[14]              Some preliminary points. First, repeat driving offending and firearms offences of this type are matters that commonly come before the District Court.18 Second, neither counsel take issue with the length of the sentence. Third, both counsel accept that it seems likely that home detention would have been imposed but for the firearm charge.  As a result of these second and third points, I consider largely  irrelevant  Ms Goodlet’s submission that Mr Johnson’s culpability on the driving charges was

12     Sentencing Notes, above n 1, at [4].

13 At [5].

14 At [5].

15 At [6].

16 At [7].

17 At [8].

18     R v D (CA253/2008), above n 9, at [66].

reduced because the offending involved driving while suspended due to demerit points rather than breaching a court ordered disqualification.

[15]              I also consider largely irrelevant the submission by Ms Goodlet that imprisonment prevented the Judge substituting a community-based sentence for disqualification under s 94 of the Land Transport Act to break the cycle of driving offending. As Mr Johnson will only have about six weeks remaining on his disqualification when he is released from prison, the choice of sentence has had little bearing on this issue.

[16]              Ms Goodlet accepted in oral argument that a sentence of imprisonment was open but submitted Judge Krebs erred in not conducting a more thorough balancing analysis. She submits that more weight should have been given to a number of personal mitigating factors, and there was insufficient analysis of them.

[17]              The matters relied on by Ms Goodlet include Mr Johnson’s full compliance with  electronically  monitored  bail  from  21  August  2023  until  sentencing  on  23 November 2023 and that he successfully completed home detention in 2015 (apart from breaching his post-detention conditions); the favourable PAC report, which assessed him at a medium risk of reoffending and recommended an electronically monitored sentence; the pro-social proposal for a sentence of home detention, including the appellant’s one year old son residing at the address at which home detention would be served; and Mr Johnson’s desire to change as demonstrated in part by him having obtained his full licence in June 2023.

[18]              I consider Mr Johnson’s compliance with EM bail and previous home detention (apart from the release conditions) is a neutral factor. Non-compliance would have weighed heavily against home detention. Moreover, the PAC report assessed him as medium risk of being non-compliant with any future community-based sentences including electronic monitoring. There was no material error in the Judge not expressly noting this factor.

[19]              In terms of reoffending risk, Judge Krebs appropriately made his own assessment based on the current charges, Mr Johnson’s extensive criminal history at

age 35, and his position as president of the local Mongrel Mob gang. Mr Johnson’s criminal history started when he was aged 17 in 2005 with offending (often multiple convictions) in almost every year since. He was first sentenced to prison in 2007 and then again in 2009, 2010, 2013. He received his longest prison sentence of two years and four months in July 2017 for aggravated robbery, followed by a cumulative sentence of imprisonment of four months for a common assault in early 2018. Although he has not received a prison sentence since, he was convicted of common assault for offending in 2019, being unlawfully in a yard in 2021, and unlawful possession of ammunition in 2022.

[20]              In relation to his desire to  change, it is a feature of the PAC  report that      Mr Johnson told the writer that he is the president of the local chapter of the gang, that his involvement with the gang was the main reason for his offending yet expressed no intention of relinquishing his position in the gang. In those circumstances, it is unsurprising that the Judge did not put weight on Mr Johnson’s expressed desire to change and observed that change will not be possible while he remains associated with the gang.

[21]              There are other aspects of the PAC report that are unhelpful to Mr Johnson, including his wholly implausible explanation of how he came to be in possession of the pistol.19 That explanation was the antithesis of taking full responsibility for his offending. Although the report writer noted Mr Johnson seemed to have a genuine desire to change and showed some level of remorse and willingness to accept help, it was also said that he can display a degree of self-entitlement, rationalisation and manipulation in relation to his offending.

[22]              The PAC report noted that Mr Johnson lives at his father’s house in Shannon with his partner and one year old child. I accept that it may have been preferable for the Judge to have expressly acknowledged these personal circumstances. However, I do not consider this was a material error, especially in the absence of further

19     Sentencing Act 2002, s 24(2)(c).

information regarding the strength of the bond with his child and the impact imprisonment may have.20

[23]              Finally, both counsel referred me to a number of cases where the courts have considered whether prison sentences for unlawful possession of firearms should be commuted to home detention. It is sufficient to observe that the cases confirm a condign approach is appropriate to the possession of readily accessible loaded weapons that have no purpose other than use in criminal activity,21 particularly in a gang context.22 In some cases, the personal circumstances of the offender have made home detention appropriate,23 and in other cases it has been held that deterrence and denunciation require a prison sentence.24 In this case, Mr Johnson’s conviction history, gang involvement, age, and risk of reoffending do not favour the former approach.

Conclusion

[24]              To conclude, the Judge’s reasoning was succinct, but the substance of his decision is clear. He considered the circumstances of possession of the pistol, along with Mr Johnson’s previous history, gang involvement, and risk of reoffending, required a condign sentence. While there could perhaps have been express reference to Mr Johnson’s family circumstances, there was no material error in failing to do so.

[25]              There being no material error, the appeal comes down to whether the sentence was manifestly excessive. I consider it was open to the Judge to conclude the local Mongrel Mob president’s possession of a readily accessible, fully loaded pistol in a car parked in a city’s main street during heightened gang tensions, combined with his criminal history, required the condign response of a prison sentence.

20 The importance of giving consideration to credit for the impact of imprisonment on children has been recently emphasised by the Supreme Court in Philip v R [2022] NZSC 149 at [50]-[58]. However, in R v Philip a clinical psychologist provided a report about the impact of imprisonment on children who had a strong bond with the defendant.

21 R v Richardson CA450/02, 25 March 2003 at [33].

22 Simpson v R [2021] NZHC 2560 at [49].

23 See, for example, Elwin v Police [2019] NZHC 3258; Aspinall-su’a v Police [2020] NZHC 3022; and R v Ronaki [2023] NZHC 1682.

24 See, for example, Rowell v Police [2019] NZHC 471; Martel v Police HC Hamilton CIV-2010- 419-69, 4 October 2010; and Waite v New Zealand Police [2015] NZHC 585.

[26]Accordingly, the appeal is dismissed.

La Hood J

Solicitors:

Crown Solicitor, Palmerston North