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 the offending, the Judge recorded that no victim impact statement was available. This is not unusual in cases of family violence.

[10]              The Judge briefly recounted the submissions of the Crown and the defendant. The Crown had submitted a global starting point of two and half years’ imprisonment for the assault and intent to injure with uplifts for Mr Johnson’s previous offending. (These were Mr Johnson’s eighth and ninth convictions for family violence.) The victim in Mr Johnson’s last set of family violence charges in September 2022 was the same person as in the current charges. Mr Johnson’s counsel argued that a starting point of 18 months to two years’ imprisonment was within range of the guideline decision.

[11]              The Judge referred to the pre-sentence report which assessed Mr Johnson as at a high risk to the victim in the future and lacking insight into his offending. This is notwithstanding a restorative justice conference.

[12]              The Judge placed the offending within band 2 of Nuku.3 He noted the aggravating factors: an attack to the head; offending in a domestic and family violence environment; moderately serious injuries and the presence of children. He adopted a global starting point of 30 months on the two most serious charges.

[13]              The Judge imposed an uplift of six months for previous relevant offending and a further three months for the breach of release conditions. The breach of release condition charges related to failures to report to a probation officer on two occasions so were separate charges but approached as personal aggravating factors.

[14]              As to mitigating factors, the Judge accepted that Mr Johnson should receive a discount for his guilty plea, and for attending a restorative justice conference where he apologised to the victim. However, the Judge also expressed scepticism about Mr Johnson’s remorse given his repeated assaults on the victim.

[15]              The Judge discounted the sentence by four months for Mr Johnson’s participation in restorative justice and seven months for his guilty plea to arrive at a final sentence of 28 months’ imprisonment.

Approach on appeal

[16]              The appeal against the sentence must be allowed if the court is satisfied that there is an error in the sentence imposed and a different sentence should be imposed.4 Otherwise, the court must dismiss the appeal. The court will dismiss the appeal if it is “within the range that can properly be justified by accepted sentencing principles”.5 It follows that an appellate court will not intervene unless the sentence is manifestly excessive.6 Whether the sentence is manifestly excessive is to be assessed in terms of

3      Nuku v R, above n 2.

4      Criminal Procedure Act 2011, s 250.

5      Campbell v R [2022] NZCA 579 at [14]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

6 At [30].

the sentence given, rather than the process by which it is reached.7 In other words, the focus is on the sentence imposed rather than how it was reached.

Discussion

Starting point

[17]              There are two primary challenges to the starting point. First, once the level of seriousness or otherwise of the aggravating factors is evaluated, the starting point was out of step with comparator cases. Ms Vaughn relies on two cases in which more serious and prolonged offending attracted the same or lesser starting points.8 Secondly, that the aggravating factors of family violence and the presence of children are not separate factors but part of the same context.

[18]              Remembering that consistency is not an absolute end and sentencing remains a fact-sensitive evaluative exercise, a brief survey of the cases supports Ms Vaughn’s submission. In Gourley v R, the attack was persistent, prolonged and involved a knife. The starting point adopted by the Court of Appeal was 30 months. In Toko v R, there was a long-lasting assault, with multiple attacks to the head, use of a weapon, multiple charges and particular vulnerability of the victim.9 A global starting point of two years and nine months’ imprisonment was held to be “well within range”.

[19]              Ms Vaughn properly acknowledges that the offending by Mr Johnson was serious but points to the spontaneous nature of the offending, absence of a weapon, short term injuries and lack of prolonged violence in support of a starting point between 18 months to two years’ imprisonment.

[20]              Ms Bryant referred me to a further ‘comparator’ case of Goodman v Police.10 That offending was also in a family violence context involving serious assaults to the head and neck where a global starting point of 28 months was within range The Court of Appeal in that case said that generally sentences of between two to three years’

7      Ripia v R [2011] NZCA 101 at [15].

8      Gourley v R [2014] NZCA 529; Toko v R [2017] NZCA 460.

9      In Toko the victim was also assaulted with a car door.

10     Goodman v Police [2016] NZCA 64.

imprisonment for domestic violence offending are not uncommon and a single charge of male assaults female tends to carry a term of imprisonment of between two and 12 months.11

[21]              Ms Bryant’s key point however was that the facts before this Court are sufficiently unique that recourse to other cases is not particularly helpful. Instead, she submits that a first principles approach is required by reference to the guideline decisions.

[22]              Ms Bryant submitted that there was a sufficient basis for the Judge to take into account the presence of children even if they did not witness the punch and driving incident. Implicit in her argument is that this is a separately aggravating feature rather than being subsumed in the family violence consideration. I agree.

[23]              I accept that the fact that the Judge identified the factors and then placed the offending below the top end of band 2 means that he weighed the identified factors. I agree that the presence of children is an additionally aggravating feature. As to the moderately serious physical injuries which may have been short lived, there is the additional factor of psychological harm, both to the victim and to the children who were subjected to at least the aftermath.

[24]              I also accept that there are unique circumstances in this case which make the cases referred to me less instructive. The mode by which harm was afflicted (i.e. use of the car) was particularly dangerous. Although it has not been suggested that the car was a “weapon” as commonly understood, the circumstances involved a degree of danger such that the sustaining of moderate injury only was more by good luck than anything else. I am also not persuaded that this was truly impulsive or spontaneous violence when Mr Johnson travelled to the victim’s home in the early hours of the morning and called her outside.

[25]              The charge of injuring with intent to injure is in the lower-middle of the hierarchy of sentences in the summary set out in R v Nuku. It must also be remembered that this was a global starting point for both the assault and injure with intent charge.

11 At [12].

[26]              Taking into account all those factors, I assess Mr Johnson’s offending as appreciably less serious than that of Mr Toko and somewhat less serious than that of Ms Gourley. An appropriate global starting point is therefore 27 rather than 30 months. To that extent, I consider the Judge erred.

Uplifts

[27]              The next question is whether the uplift of six months for previous convictions amounts to further punishment contrary to s 26(2) of the New Zealand Bill of Rights Act 1990. Ms Vaughn responsibly accepted that an uplift was called for. It is the length of time that is in issue. She says that it was disproportionate when one considers that the appellant received a sentence of eight months’ imprisonment for his 2022 convictions of impedes breathing and assaults on a person in a family relationship. Further, she notes that the appellant is now 23 years old. The earlier convictions date back to a period when he was barely out of his teens.

[28]              Ms Vaughn contended that Mr Johnson has not had the benefit of a rehabilitative sentence to date. This was disputed by Ms Bryant. I am not able to resolve that conflict on the material before me but consider it unnecessary to do so. It does not bear on the issues on this appeal.

[29]              Ms Bryant in response referred to the pre-sentence report which highlighted an escalation in offending and a concerning attitude on the part of the appellant calling for deterrence.

[30]              Mr Johnson’s criminal history is both relevant and material in that it bears on his character and the need to deter and denounce. It required an uplift. There is however an inevitable tension between two principles: the deterrent aspect of punishment and the need to ensure that an offender is not punished twice for the same offending.12 All relevant factors need to be assessed to determine proportionality. That proportionality is conventionally by reference to the starting point fixed by the sentencing judge.13 That is, six months against the original 30-month starting point

12     Reedy v New Zealand Police [2015] NZHC 1069 at [16].

13 At [19].

(or 20 per cent). But the uplift must also be proportionate to the sentence imposed for the original offence. If it exceeded the original sentence it would be unlikely to be proportionate. I consider the uplift by the sentencing judge to be appropriate. It reflects a proper finding as to propensity for family harm which is supported by the pre-sentence report. The effect of decreasing the starting point by three months on appeal does not materially alter that and is balanced out by the effect on the guilty plea deduction discussed below.

[31]              As to the three-month uplift for breach of release conditions, Ms Vaughn points to the fact that this is Mr Johnson’s first conviction for breach of this type and would not attract a three month start point even as a standalone charge. She submits that the totality principle is engaged.14

[32]              I accept the Crown’s submission that the sentencing judge did not impose an uplift for the charge per se but treated offending whilst on release conditions as a personal aggravating factor in the offending in accordance with s 9(1)(c) of the Sentencing Act 2002. The release conditions related to the sentence imposed for family violence against the same victim.

[33]              Imposition of and compliance with release conditions is fundamentally important to release of prisoners and public safety. A cavalier attitude to release conditions and offending whilst subject to release conditions is an important consideration. Offending while on release conditions is a not insignificant aggravating factor. The criticism is not sustainable.

Guilty plea

[34]              Finally, Ms Vaughn submits that there should have been a full 25 per cent reduction for Mr Johnson’s early guilty plea, rather than seven months. She submits, and it is not disputed that Mr Johnson pleaded guilty at the earliest opportunity once the charges were amended. Indeed, I understand that the Crown accepted this before the sentencing Judge. In her written submissions, Ms Vaughn calculates the deduction as 18 per cent of the 39-month ‘adjusted starting point’.

14     Sentencing Act, s 85.

[35]              In oral submissions before me, Ms Vaughn accepted that, calculated against the adjusted starting point of 30 months, the guilty plea discount is closer to 23 per cent. This is the more appropriate assessment. 15 Uplifts for previous convictions constitute an aggravating factor personal to the offender, not an aggravating feature of the index offending.16

[36]              A mathematical approach is not determinative. Anything between 20 and 25 per cent is unimpeachable in my view. This analysis serves only to show that the guilty plea discount of seven months adopted by the Judge was not in error. The seven-month deduction stands. This has the effect of lifting the deduction percentage however that is appropriate in this case.

[37]              In summary, the starting point is two years and three months. I uplift that start point by six months to account for Mr Johnson’s previous history and a further three months in respect of offending whilst on release conditions. I adopt the same deductions made by the sentencing Judge. That is, the deduction of four months to take into account attending restorative justice and a further seven months to take into account the guilty pleas.

[38]The end sentence is two years and one month’s imprisonment.

Result

[39]The appeal is allowed.

[40]              The sentence of two years and four months is quashed and substituted by a sentence of two years and one month’s imprisonment.

............................................................

Walker J

15     See R v Moses [2020] NZCA 296 at [46] and the discussion in Mo’unga v R [2023] NZHC 1967.

16     Stuart v R [2021] NZCA 539 at [15].