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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnson v Police

Details

AGLC: Johnson v Police [2023] NZHC 3302
Case: [2023] NZHC 3302
Decision Date: 21 November 2023

CaseChat Overview and Summary

Thomas Jeremiah Johnson appeals against the sentence of 28 months' imprisonment imposed by the District Court, arguing it is manifestly excessive. The sentencing Judge considered the extensive criminal history of Johnson and the nature of the offences, which included multiple instances of driving while disqualified, breaches of bail, possession of cannabis for supply, and possession of a knife in a public place. The Judge took the lead offence to be the possession of cannabis for supply, which carried a maximum sentence of eight years' imprisonment. The Judge adopted a starting point of 18 months' imprisonment for this offence and added another 15 months for the remaining charges, then uplifted the starting point by three months due to Johnson's criminal history, arriving at an adjusted starting point of 36 months' imprisonment. The Judge applied a discount of 20 per cent for guilty pleas and a cultural report, but did not grant any discount for time spent on electronically monitored bail due to numerous breaches.

The appeal focuses on three grounds: the insufficient discount for background factors outlined in the cultural report, the absence of a discount for remorse and willingness to participate in restorative justice, and the lack of discount for time spent on electronically monitored bail. The court found that the sentencing Judge's approach to these factors was not in error. Regarding the cultural report, while it provided some insight into Johnson's background, it did not sufficiently explain the causes of his offending, and thus a five per cent discount was appropriate. As for remorse and rehabilitation, the court noted that little weight could be placed on these factors given Johnson's history of similar offences. Finally, the court upheld the Judge's decision not to grant a discount for time on electronically monitored bail due to Johnson's repeated breaches.

The court concluded that the sentence imposed was not manifestly excessive and dismissed the appeal.

Orders