Johnson v Police

[2018] NZHC 2715

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI 2018-416-17 [2018] NZHC 2715

BETWEEN

PAUL STANLEY JOHNSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	16 October 2018
Appearances:	N H Wright for Appellant M M Mitchell for Respondent
Judgment:	19 October 2018

JUDGMENT OF MALLON J

Introduction

[1]      Mr Johnson appeals against his sentence of three years and three months’ imprisonment imposed by Judge Gibson in the Gisborne District Court on a number of charges to which he had pleaded guilty.1   He contends the sentence was manifestly excessive because the starting point for the lead offence was too high, the uplift for his conviction history was not appropriate and he should have been given a discount for his prospects of rehabilitation and remorse.

The offending

[2]      Mr Johnson was charged with and pleaded guilty to the following drugs and firearms offences arising from a search at his residence on the morning of 20 February

2018 pursuant to a search warrant:

1      Police v Johnson [2018] NZDC 15462 (sentencing notes of Judge Gibson).

JOHNSON v NEW ZEALAND POLICE [2018] NZHC 2715 [19 October 2018]

(a)Possessing methamphetamine for supply.2  During the search the police located: 1.27 grams of meth in various bags; numerous empty zip lock bags; scales; and tick lists indicating drugs supplied and money owing. The tick lists were identified in two books which also included book keeping fees for members of the Mongrel Mob.  Inserted through the pages was cash totalling $2,050.3

(b)Supplying  methamphetamine.4    Following  the  search,  the  police obtained a production order for the cell phones located in Mr Johnson’s room during the search.   This identified 40 occasions when methamphetamine was supplied with a total of 12 grams transacted between 1 October 2017 and 20 February 2018. For part of this period (between 27 October and 31 December 2017) Mr Johnson had organised associates at his address to operate this business and collect payments on his behalf.   This included selling glass pipes for consuming methamphetamine.

(c)Possessing a glass pipe for methamphetamine consumption.5     The condition of the pipe indicated extensive use.

(d)Cultivating cannabis.6   Twenty-four plants ranging from 30-50 cm in height were found in various places at the rear of the property.

(e)Possession of cannabis.7    Approximately one gram of cannabis was located on the property.

(f)Unlawful possession of ammunition.8  A firearm bolt and seven rounds of ammunition were found in the footwell of Mr Johnson’s vehicle. A single shotgun shell was found in Mr Johnson’s room.

2      Misuse of Drugs Act, s 6(1)(f) (maximum sentence of life imprisonment).

3      Mr Johnson had an explanation for this money and forfeiture was not sought.

4      Section 6(1)(c) (maximum sentence of life imprisonment).

5      Section 13(1)(a) (maximum sentence of one year imprisonment and/or $1,000 fine).

6      Section 9(1) (maximum sentence of seven years’ imprisonment).

7      Section 7(1)(a) (maximum sentence of three months’ imprisonment and/or $500 fine).

8      Arms Act 1983, s 45(1) (maximum sentence of four years’ imprisonment and/or $5000 fine).

[3]      There was also a charge of driving while disqualified (third or subsequent).9

This occurred during a routine traffic stop on the afternoon of 21 December 2016.

Personal circumstances

[4]      Mr Johnson is 52 years old.  He is the Vice President of the Wairoa chapter of the Mongrel Mob.  He has a lengthy criminal history dating back to 1983.  There has been offending almost every year since that time and any breaks in offending are partly explained by periods of imprisonment.  Mr Johnson’s offending is for drugs (mostly cannabis), violence, dishonesty/property and driving offences.

[5]      Mr Johnson told the pre-sentence report writer he was retired from gang activities. He no longer considers himself a recidivist offender. However his response to being asked whether he would cease supply drugs was that he is a people person who does not want his family and friends getting ripped off.  He said he consumes no drugs other than cannabis and alcohol which he uses from time to time.  He was not motivated to attend alcohol and drug programmes because he has already completed them.

[6]      On the day of sentencing, information was provided about Mr Johnson’s conduct in prison. The principal Corrections officer at the prison’s new high security unit advised: there was no concern with Mr Johnson’s behaviour and conduct; while in the unit Mr Johnson had completed the intensive literacy and numeracy programme and the short motivational programme (a programme designed to enhance an offender’s motivation to understand their offending and to make positive changes); and because of his motivation and commitment he had been moved to the low security unit.

District Court sentencing

[7]      In sentencing Mr Johnson the Judge took the methamphetamine possession for supply and supplying charges as the lead offences. He considered this offending fell

9      Land Transport Act 1998, ss 32(1)(c) and 32(4) (maximum sentence two years’ imprisonment and/or 12 months’ disqualification and/or a $6,000 fine).

within band two of R v Fatu.10   The quantity supplied was within this band and the surrounding evidence from the search showed this was commercial dealing. Although Mr Johnson was in possession of a small amount, this was consistent with being low in stock when the police arrived and the other evidence showed dealing at “a reasonably commercial level”.  The Judge fixed a starting point of three and a half years’ imprisonment.11

[8]      The Judge described the other offending as also serious.  Looking at it in the round he applied an uplift of six months to the starting point.

[9]      The Judge referred to Mr Johnson’s view that he was in semi-retirement from the Mongrel Mob but regarded the present offending as indicating that Mr Johnson remained “fairly active” in criminal offending.  He noted Mr Johnson had previous convictions for methamphetamine and cannabis possession and for “other serious offences”.  The Judge considered an uplift of four months was appropriate for this history noting that he could “look at your overall criminality in terms of the life you have led ... in the round”.12   This brought the sentence to four years and four months’ imprisonment.

[10]     A full discount was then provided for the guilty plea.  This meant the end sentence was three years and three months’ imprisonment.13

Discussion

Starting point

[11]     Mr Johnson’s counsel submits the Judge’s starting point was too high. Counsel says the Judge focussed solely on the amount of methamphetamine and did not focus on the role Mr Johnson played.  Counsel characterises the appellant as a “basic street dealer” selling (generally) point bags to associates to support his own heavy habit as indicated by the state of the methamphetamine pipe found.  Counsel also says the

10     R v Fatu [2006] 2 NZLR 72, (2005) 22 CRNZ 410. Band two is 5-250 g of methamphetamine for which the starting point will generally be between three years’ to nine years’ imprisonment.

11     Police v Johnson, above n 1, at [3].

12 At [7].

13     All the other charges were sentenced on a concurrent basis and are not at issue on appeal.

amount involved was almost identical to that in Hollingsworth, a decision provided to the Judge at sentencing, where a three year starting point was taken.14  The Judge did not say why he adopted a starting point six months higher.

[12]     I do not accept this submission.  The Judge did not focus solely on quantity. He specifically referred to the evidence which indicated a reasonable level of commercial dealing.  Mr Johnson did not claim to be selling methamphetamine to support his own habit.  He said he was selling drugs to friends and family so they did not get ripped off. The Judge was right to view the evidence as indicating a reasonable level of commercial dealing: apart from the scales and tick books, the phone records showed 40 transactions and organising associates to assist with the sales and collecting the money.

[13]     The Judge was not required to explain in his sentencing remarks why he regarded the offending as more serious than Hollingsworth.  He was entitled to view the present case as involving a greater degree of commerciality.   There was, for example, no suggestion in Hollingsworth that the defendant was arranging others to sell the drugs and collect money on his behalf and nor was there evidence as to the number of sales made.  As the Crown submits, the Judge’s starting point aligns with Wheeler v R, which involved the supply of a similar amount and numerous individual transactions.15

Uplift for offending history

[14]     Mr Johnson’s counsel submits the Judge erred in uplifting the sentence for Mr Johnson’s conviction history.  Referring to Johnson-Walters v R, she submits uplifts are only justified where previous convictions indicate a predilection to commit a particular type of offence or they are so numerous or serious that protection of the community justifies an uplift.16     Counsel submits that no uplift was appropriate because: Mr Johnson does not have previous convictions for dealing methamphetamine; his last conviction for cannabis dealing was in 1999; his recent methamphetamine and cannabis offending was for possession only (2017); there was

14     R v Hollingsworth HC Auckland, CRI-2006-055-000310, 26 April 2007.

15     Wheeler v R [2017] NZCA 193 at [7].

16     Johnston-Walters v R [2011] NZCA 367 at [29].

a six year gap in his offending (2010 to 2016); and his other offences are not so numerous or serious to justify an uplift in the interests of the community.

[15]     I do not accept this submission.   I do accept that  Mr Johnson’s limited methamphetamine history would not have justified an uplift on the methamphetamine charges. As to an uplift for Mr Johnson’s lifestyle of offending, counsel’s submission may have had more weight if there had been a significant break in Mr Johnson’s offending.  However the six year break referred to was partially accounted for by a sentence  of  three  years’ imprisonment  imposed  in  2012  for  participating  in  an organised criminal group. Importantly, Mr Johnson was facing a raft of charges which in the round indicated he had not retired from his criminal lifestyle despite his statement that he had.  Of particular concern was that he was a senior gang member selling methamphetamine and using his associates to collect the money, he was found with ammunition in his vehicle, and he was not indicating any intention of ceasing his involvement in supplying drugs in the future.

[16]     In these circumstances the Judge was entitled to regard an uplift as necessary because of the need for individual deterrence and community protection.  While the uplift he imposed could have been less, it was not excessive.

Rehabilitative prospects and personal circumstances

[17]     Mr Johnson’s counsel submits says the appellant’s rehabilitative efforts prior to sentencing justified a discount at sentencing.17  The information from the principal Corrections officer was drawn to the Judge’s attention at sentencing. When the Judge had completed his sentencing remarks, counsel raised again whether the Judge would make a discount for Mr Johnson’s rehabilitative efforts. He declined to do so. He was entitled to take that view.   The information essentially was that Mr Johnson had engaged well in the prison environment (including by being motivated and completing courses) and had been moved from the high to low security units. That is pleasing but needed to be balanced against Mr Johnson’s indication to the pre-sentence report writer that he would continue to supply drugs to his friends and family.

17     Referring to Hansch v Police [2014] NZHC 2438.

[18]     Mr Johnson’s counsel also submits that a discount for personal circumstances on compassionate grounds should have been given.  Two weeks prior to sentencing his older brother passed away and he was not advised soon enough to attend the tangi. Shortly after his imprisonment his terminally ill mother passed away (he was granted compassionate bail for one day to attend her funeral).  Although undoubtedly sad events for Mr Johnson, they are not wholly unexpected events for a mature man and did not require a discount.

Overall sentence

[19]     The focus on an appeal against sentence is on whether the end sentence was within the available range. Looked at overall, I am satisfied it was. For example, even if the uplift for previous offending had been less (or not given at all) that is balanced out by the uplift for the charges other than the methamphetamine dealing which could have been higher.

Result

[20]     The appeal is dismissed.

Mallon J