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…

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 [2018] NZHC 2715
Case: [2018] NZHC 2715
Decision Date: 19 October 2018

CaseChat Overview and Summary

In the case of Johnson v Police, Paul Stanley Johnson appealed his sentence of three years and three months' imprisonment imposed by Judge Gibson in the Gisborne District Court. Johnson contended that the sentence was manifestly excessive due to the starting point for the lead offence being too high, the uplift for his conviction history being inappropriate, and that he should have been given a discount for his prospects of rehabilitation and remorse. Johnson was found guilty of possessing methamphetamine for supply, supplying methamphetamine, possessing a glass pipe for methamphetamine consumption, cultivating cannabis, possessing cannabis, and unlawful possession of ammunition. Johnson had a lengthy criminal history and was the Vice President of the Wairoa chapter of the Mongrel Mob. The District Court Judge took the methamphetamine possession for supply and supplying charges as the lead offences and considered the offending to be within band two of R v Fatu. The Judge fixed a starting point of three and a half years' imprisonment, applied an uplift of six months for the other serious offending, and provided a full discount for the guilty plea. The High Court found that the starting point was appropriate and the uplift for Johnson's conviction history was justified. The Court also found that Johnson's rehabilitative efforts prior to sentencing did not justify a discount at sentencing. The appeal was dismissed, and the sentence was upheld.

Orders