Johnson v Police

[2016] NZHC 2110

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2016-409-53 [2016] NZHC 2110

BETWEEN

JEREMY ANTHONY JOHNSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	6 September 2016
Counsel:	T McKenzie for Appellant E J Henderson for Respondent
Judgment:	6 September 2016

JUDGMENT OF SIMON FRANCE J

[1]      Mr Johnson pleaded guilty to one charge of supplying cannabis.   He was sentenced to a term of imprisonment of 23 months.1    He seeks on appeal a modest adjustment to 19 months’, contending there was an incorrect uplift from the starting point, and insufficient credit for rehabilitation.

[2]      The charge relates to a five week period, and is premised on text messages and phone calls.   He and his co-defendant played the role of middle man, either holding some product for resale or sourcing it if they could not meet a request. Mr Johnson generally traded in $50 bags of cannabis.

[3]      Mr Johnson was serving a sentence of home detention at the time of the offending.  That sentence had been imposed for breach of prison release conditions

and dangerous driving.

1      NZ Police v Johnson [2016] NZDC 9450.

[4]      The sentencing Judge took a starting point of two years’ imprisonment for the drug offending, uplifted that by six months for the fact it was committed whilst serving a sentence of home detention and gave a 25 per cent discount.  One month was then added in substitution of outstanding fines and court costs ($25,000).

[5]      The  first  ground  of  appeal  is  the  lack  of  recognition  of  Mr Johnson’s rehabilitative efforts.   Whilst remanded in custody Mr Johnson had undertaken an alcohol and other drugs counselling course.  The Judge in sentencing described what it involved and assessed it as a beginning.  I do not consider it necessitated a separate credit, and further am of the view it was factored into the guilty plea credit of

25 per cent.    It  was  a  strong  Crown  case  with  clear  documentary  proof  of  the offending. When identifying a 25 per cent credit for the plea, the Judge observed:2

… there is a full credit allowed for the guilty plea at 25 per cent and I

recognise that you have started to embark on rehabilitative efforts.

No more was merited.

[6]      The second  appeal  ground  is  the six  months’ uplift  which  is  said  to  be disproportionate at 25 per cent of the starting point.  Counsel reads the decision as suggesting  the  uplift  relates  solely  to  the  fact  offending  was  while  on  home detention.  If that were so, I would agree but here there were two factors at play – the fact that this offending was committed from the home whilst serving a sentence of home detention, and also Mr Johnson’s previous offending.

[7]      Mr Johnson is 30 years of age.   He has been a persistent offender and has been convicted of 20 offences since the start of 2012.   In that short time he has received 14 sentences of imprisonment in relation to those charges.  An uplift for personal deterrence was required.

[8]      A second aspect is not only the offending whilst on home detention but the history of persistent breaches of sentences.  Four of those 20 recent convictions are for breaching release conditions; two others for failing to answer bail.  Mr Johnson

claims a commitment to change; the stern uplift should be seen as a clear message

2 Above n 1 at [11].

that  change  is  needed  as  the  path  he  is  on  is  pointing  towards  him  spending considerable portions of his life behind bars.

[9]      I consider in the circumstances of the case a six month uplift was available and made a necessary statement to Mr Johnson.

[10]     The appeal is dismissed.

Simon France J