Johnson v R - [2023] NZHC 2518

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

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

CRI-2023-416-000008

[2023] NZHC 2518

BETWEEN
BRADEN JOHNSON

Appellant

AND

THE KING

Defendant

Hearing: 6 September 2023

Appearances:

H Vaughn for the Appellant A Bryant for the Crown

Judgment:

8 September 2023

JUDGMENT OF WALKER J

This judgment was delivered by me on 08 September 2023 at 11 am Registrar/Deputy Registrar

JOHNSON v R [2023] NZHC 2518 [8 September 2023]

Introduction

[1] Braden Johnson appeals his sentence of two years and four months imprisonment. He was sentenced by Judge S J O’Driscoll on 18 July 2023 following guilty pleas to three charges.1

[2]The charges are:

(a)injuring with intent to injure;

(b)assaulting a person in a family relationship; and

(c)breach of release conditions.

[3]The grounds of appeal advanced by Ms Vaughn are:

(a)The starting point was too high. While the offending was properly assessed as within band 2 of Nuku v R,2 there was no or no sufficient evaluation of the seriousness or otherwise of the aggravating features. Further, the Judge erred in identifying the presence of children as an individual aggravating factor.

(b)The uplift of six months for Mr Johnson’s previous offending was disproportionate.

(c)The uplift for breach of release conditions was too high; and

(d)There was insufficient deduction for the appellant’s guilty pleas which came quickly once the charges were amended.

The offending

[4] Mr Johnson had been in a relationship with the victim for some time. They are parents of very young children. There is a history of family harm.

1 R v Johnson [2023] NZDC 17600.
2 Nuku v R [2012] NZCA 584; [2013] 2 NZLR 39.

[5] At 12.15 am on 8 January 2023, Mr Johnson arrived at the victim’s address. He parked outside. The victim was inside with the young children and an older child or children from a former relationship. Mr Johnson called her outside. She came out. They argued. He punched her once in the head with a closed fist. He continued arguing with her about cigarettes.

[6] Mr Johnson then got in the driver’s seat of the vehicle. He slammed the door shut. He grabbed the victim’s right arm through the open driver’s side window and began revving the vehicle. He then drove approximately five to six metres dragging the victim along the road by the driver’s side door. He released the victim. She fell to the ground, in pain and unable to move. She was helped to the roadside by others. Mr Johnson turned his car around and drove back past her.

[7] The victim was taken to the hospital by ambulance. She suffered contusions to her right wrist and ankle, tenderness to her right knee and scratches down the right side of her torso.

[8] According to the summary of facts to which Mr Johnson pleaded guilty, the victim’s children were present at the time of the offending and had come outside.

Decision under appeal

[9] After setting out the facts of…

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 R

Details

AGLC: Johnson v R [2023] NZHC 2518
Case: [2023] NZHC 2518
Decision Date: 8 September 2023

CaseChat Overview and Summary

Braden Johnson appeals his sentence of two years and four months imprisonment imposed by Judge S J O’Driscoll on 18 July 2023 following his guilty pleas to charges of injuring with intent to injure, assaulting a person in a family relationship, and breach of release conditions. The appeal was heard by Walker J in the High Court of New Zealand, Gisborne Registry. Ms Vaughn, representing the appellant, argues that the starting point was too high, the uplift for previous offending was disproportionate, the uplift for breach of release conditions was too high, and there was insufficient deduction for the appellant's guilty pleas.

The court considers the starting point and whether it was appropriate given the circumstances of the case. The court agrees with Ms Vaughn that the starting point was too high, and the appropriate starting point should be two years and three months. The court also considers the uplifts for previous convictions and breach of release conditions, finding that the uplifts were appropriate and not disproportionate. Finally, the court considers the deduction for the appellant's guilty pleas, finding that the seven-month deduction adopted by the sentencing judge was not in error.

The appeal is allowed, and the sentence of two years and four months is quashed and substituted by a sentence of two years and one month’s imprisonment.

Orders