Johnson v Police

[2023] NZHC 3302

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-473

[2023] NZHC 3302

BETWEEN

THOMAS JEREMIAH JOHNSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	14 November 2023
Appearances:	E J Butler for Appellant J Mara for Respondent
Judgment:	21 November 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 21 November 2023 at 11:30 am.

Registrar/Deputy Registrar

Solicitors:           Public Defence Service (E Butler), Auckland

Kayes Fletcher Walker Ltd (Office of the Crown Solicitor), Manukau

JOHNSON v NEW ZEALAND POLICE [2023] NZHC 3302 [21 November 2023]

[1]                 On 16 August 2023, Thomas Jeremiah Johnson was sentenced to 28 months’ imprisonment on 12 offences committed over a period of more than two years.1 He now appeals against sentence on the basis that it is manifestly excessive.

District Court decision

[2]                 At the outset of his decision, Judge GA Andrée Wiltens listed the 12 different offences committed over a period of two years and four months. The offending consisted of:

Date	Offence	Maximum Penalty
1 August 2020	1	Driving while disqualified (3rd or subsequent)	Two   years’   imprisonment $6,000 fine
	2	Driving with excess breath alcohol (856 mgs of alcohol per litre of breath)	Two   years’   imprisonment $6,000 fine
	3	Failing to stop for Police siren and lights	$10,000 fine
23 September 2020	1	Breach of bail	One    year’s   imprisonment $2,000 fine
3 February 2022	1	Driving while disqualified (3rd or subsequent)	Two   years’   imprisonment $6,000 fine
7 March 2022	1	Breach of bail	One    year’s   imprisonment $2,000 fine
10 April 2022	1	Driving while disqualified (3rd or subsequent)	Two   years’   imprisonment $6,000 fine
18 June 2022	1	Driving while disqualified (3rd or subsequent)	Two   years’   imprisonment $6,000 fine
	2	Possession of cannabis for supply (76.9 grams in 48 small bags and scales)	Eight years’ imprisonment
5 December 2022	1	Possession of knife in public place	Three years’ imprisonment
	2	Intentional damage	Three months’ imprisonment $2,000 fine
	3	Failing to stop for Police siren and lights     while     exceeding    the applicable speed limit	$10,000 fine

[3]                 The Judge took the lead offence to be possession of cannabis  for supply on 18 June 2022, which carried a maximum sentence of eight years’ imprisonment. He adopted a starting point of 18 months’ imprisonment for that offence to which he added

1      Police v Johnson [2023] NZDC 17576.

another 15 months for the remainder of the offending. The Judge then uplifted the starting point by three months to take account of Mr Johnson’s extensive criminal history for similar offending. He therefore arrived at an adjusted starting point of 36 months’ imprisonment.

[4]                 From that adjusted starting point, the Judge gave Mr Johnson a discount for his guilty pleas of 15 per cent and an additional discount of five per cent for the matters set out in a cultural report under s 27 of the Sentencing Act 2002, making a total discount of 20 per cent.

[5]                 The Judge explained that no greater discount was available for the s 27 report because much of its content did not explain the causes of Mr Johnson’s offending. He did not give any discount for Mr Johnson’s time on electronically monitored (EM) bail because of the numerous breaches of EM bail.

[6]                 The Judge therefore imposed a term of 28 months’ imprisonment on the charges of possession of cannabis for supply and possession of an offensive weapon. He convicted and discharged Mr Johnson on the two charges of failing to stop and sentenced him to concurrent terms of one month’s imprisonment on all remaining charges. Finally, the Judge disqualified Mr Johnson from holding or obtaining a driver’s licence for 18 months on all the driving charges.

Appellant submissions

[7]                 No issue is taken with the starting point of 18 months’ imprisonment for the cannabis charge, the uplift of 15 months for the remaining charges, the uplift of  three months for Mr Johnson’s criminal history, the discount of 15 per cent for his guilty pleas or the 18 months disqualification that was imposed.

[8]Three grounds of appeal are advanced:

(a)Insufficient discount was given to reflect Mr Johnson’s background factors as outlined in the s 27 report. A discount in the range of 10 to 15 per cent, rather than five per cent, should have been granted.

(b)There should  have  been  a  discount  of  10  per  cent  granted  for  Mr Johnson’s remorse, rehabilitation and willingness to attend a restorative justice conference.

(c)There should have been a discount of approximately two months’ imprisonment for the 151 days Mr Johnson spent on restrictive conditions of EM bail.

Discussion

[9]                 At sentencing, a s 27 report, two letters of remorse, two certificates showing the completion of programmes while in custody, and a letter from Restorative Justice were provided to the Court.

Section 27 cultural report

[10]             The report noted that Mr Johnson came from a small rural town where he was repeatedly surrounded by alcohol and violence both in his immediate whānau and wider community. Alcohol and other drug use has been an issue for Mr Johnson for most of his life. The report states that in the rural area where he grew up, drink driving was normalised, as was gang membership and other criminal activity.

[11]             The Supreme Court’s decision in Berkland v R has clarified that a causative contribution between an offender’s background and offending will be sufficient to merit some discount at sentencing.2 Where background is an operative or proximate cause of the offending (meaning that there is a direct nexus between background and offending) there will be greater scope for discount.3 Although a causative contribution is a lower standard than operative or proximate cause, it must still be established. There will be a point at which background factors can no longer assist in explaining the offending.

[12]As to the cultural report, the sentencing Judge said:4

2      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.

3 At [110].

4      Police v Johnson, above n 1.

[15] Mr Butler has arranged for a s 27 cultural report which I have read carefully, and some of it has application in terms of setting out your background and how that relates to the offending that you have undertaken here. For that reason, I am giving you some further discount, but not that much because a lot of it does not explain the causes of your offending. I am giving a further five per cent discount for the cultural report.

[13]             I cannot say that the Judge fell into error by not granting Mr Johnson more than a five per cent discount. First, the findings in the report were solely self-reported and, secondly, there was an absence of contemporaneous evidence linking the offending to any addiction issues. I acknowledge however that in his letter to the victim of his offending on 5 December 2022, Mr Johnson said he had been using methamphetamine and was up for three days at the time of his offending. Thirdly, the possession of cannabis for supply was clearly commercial in nature.

[14]             In Berkland itself, the Supreme Court only granted the appellant a 10 per cent discount to recognise his history of deprivation and trauma and his clinically confirmed methamphetamine addiction.

Remorse, Rehabilitation and Restorative Justice

[15]             Mr Johnson had written two letters of remorse, one to the Court and another to the householder whose window he had broken. Mr Johnson had also completed a Choosing to Change workbook and a Controlling Anger programme while in custody on remand. Furthermore, Mr Johnson had indicated a willingness to take part in a restorative justice conference with respect to the intentional damage change, but the householder had been unable to be contacted. No conference was therefore able to be held.

[16]             A discount for genuine remorse may justify its own discount and underpin a guilty plea discount. However, as the Court of Appeal noted in R v Ngamo,5 little weight may be placed on even genuine expressions of remorse or rehabilitative efforts in circumstances of recidivist offending. Furthermore, mere willingness to engage in restorative justice is not enough in itself to justify a separate discount for remorse when uncoupled from other “genuine expressions”.6

5      R v Ngamo [2009] NZCA 512 at [9].

6      Pene v R [2023] NZHC 1234 at [27].

[17]             On sentencing, the Judge did not grant any discount for remorse, rehabilitation, or willingness to take part in a restorative justice conference. In fact, he did not mention these factors at all.

[18]             I am of the view, however, that the absence of any reference to these factors does not amount to a material error by the sentencing Judge when one steps back and looks at the overall circumstances.

[19]             Mr Johnson is now 35 years old. He has amassed 51 convictions since he was 17 years old. He has been sentenced to fines, community work, intensive supervision, community detention and 19 terms of imprisonment (of up to three years and three months for aggravated robbery).

[20]             The letters of remorse must be viewed in the context of continued offending of a similar nature over some 18 years. There is also no evidence about the courses completed in prison apart from the certificates of completion, but I do accept they are a good start. Nonetheless, it was open to the Judge to determine that more was required for him to be satisfied that some real discount should be granted for rehabilitative efforts. It was unfortunate that no restorative justice conference was able to be held.

Time spent on EM bail

[21]             At sentencing, Mr Johnson had spent 151 days (approximately five months and one week) on EM bail. Section 9(2)(h) of the Sentencing Act 2002 (the Act) requires the Court to take into account the time an offender has spent on bail with an EM condition. In taking this factor into account, the Court must consider:7

(a)the period of time that the offender spent on bail with an EM condition;

(b)the relative restrictiveness of the EM condition, particularly the frequency and duration of the offender’s authorised absences from the electronic monitoring address; and

7      Sentencing Act 2002, s 9(3A).

(c)the offender’s compliance with the bail conditions during the period of bail with an EM condition; and

(d)any other relevant matter.

[22]             In Paora v R,8 the Court of Appeal observed that an arithmetical approach was inappropriate to determine a discount for time spent on EM bail. Rather, an evaluative assessment of all the circumstances is what is required. Allowances of between 30 and 50 per cent are not uncommon.

[23]             In O’Connor v R,9 the Court of Appeal said there was no particular pattern in the amount of credit for restrictive bail, but that a defendant’s compliance during that period is obviously relevant. Where repeated breaches have occurred, no credit may be given. In Gage v R,10 no credit was given for five months on EM bail where there was further offending and prior breach of bail conditions.

[24]As to the time on EM bail, the sentencing Judge said:11

[16]     There is no discount for your time … being on EM bail. That is a consequence of your own conduct and numerous breaches of EM bail.

[25] In the present case, there were repeated breaches while on bail and repeated offending increasing in seriousness. The main breach of bail occurred on 5 December 2022 when Mr Johnson left the EM bail address and committed the last three offences listed in [2]. Furthermore, the restrictive nature of Mr Johnson’s EM bail had been eased from 14 October 2022, when the curfew was altered to enable him to attend work between Monday and Friday from 5:30 am to 7:00 pm.

[26]             Again, no error has been demonstrated in the Judge’s approach to credit for time spent on EM bail.

8      Paora v R [2021] NZCA 559 at [46], citing Tamou v R [2008] NZCA 88 at [18]-[19].

9      O’Connor v R [2014] NZCA 328 at [45].

10     Gage v R [2014] NZCA 140 at [26].

11     Police v Johnson, above n 1.

Result

[27]             The starting point adopted by the Judge was well within range and the discounts imposed were appropriate based on the information before the sentencing Judge. The final sentence imposed is not manifestly excessive.

[28]The appeal is dismissed.

Woolford J