Johnstone v Police - [2023] NZHC 1660

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-0004198

[2023] NZHC 1660

BETWEEN
CASSIDY ELLEN JOHNSTONE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 June 2023

Counsel:

J A Kincade KC and A Shendi for Appellant M Djurich for Respondent

Judgment:

30 June 2023

JUDGMENT OF HINTON J

This judgment was delivered by me on 30 June 2023 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Meredith Connell, Auckland

JOHNSTONE v POLICE [2023] NZHC 1660 [30 June 2023]

[1] On 18 January 2020, the appellant was involved in a high-speed police chase which ended when her vehicle veered off a motorway off-ramp. She was heavily under the influence of alcohol and the Class B controlled drug methylenedioxymethamphetamine (MDMA). Two of her three passengers suffered serious injuries which required hospitalisation and surgery and they suffered long- lasting consequences. The appellant was also injured.

[2] Following a sentence indication given by Judge Fitzgibbon,1 the appellant pleaded guilty to two charges of causing injury while under the influence of drink and/or a drug to such an extent as to be incapable of having proper control of a vehicle,2 and one charge of reckless driving.3

[3] On 6 September 2022, the appellant was convicted and sentenced to six months’ community detention and 12 months’ supervision with conditions. 4 She was also ordered to pay a total of $22,500 to the victims by way of emotional harm reparation, and was disqualified from holding or obtaining a driver’s licence for one year and two months on each charge, to be served concurrently.

[4]The appellant appeals her conviction on two grounds:

(a)the Judge erred by failing to consider under s 11 of the Sentencing Act 2002 (the Act) whether the appellant ought to have been more appropriately dealt with by way of a discharge without conviction under s 106 of the Act; and

(b)a miscarriage of justice has occurred because her trial counsel failed to provide her with advice regarding the availability of a discharge without conviction.

1      Police v Johnstone DC North Shore CRI-2020-044-001454, 22 February 2022.
2      Land Transport Act 1998, s 61(2)(a): maximum penalty of 5 years’ imprisonment or a fine not exceeding $20,000; and disqualification from holding or obtaining a driver’s licence for one year or more.
3      Section 35(1)(a): maximum penalty of 3 months’ imprisonment or a fine not exceeding $4,500; and disqualification from holding or obtaining a driver’s licence for 6 months or more.
4      Police v Johnstone [2022] NZDC 22785.

[5]The respondent says there was no error:

(a)Although the Judge did not expressly address the appropriateness of a discharge without conviction, she was clearly alive to and articulated the factors relevant to such a sentencing outcome. This consideration was also implicit in the Judge’s conclusion that an electronically- monitored sentence was the most appropriate outcome having considered a range of mitigating factors.

(b)Trial counsel reasonably exercised his judgment in advising the…

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 Johnstone v Police

Details

AGLC: Johnstone v Police [2023] NZHC 1660
Case: [2023] NZHC 1660
Decision Date: 30 June 2023

CaseChat Overview and Summary

The appeal by Cassidy Ellen Johnstone against her conviction and sentence was heard by Hinton J in the High Court of New Zealand. Johnstone had pleaded guilty to charges of causing injury while under the influence of alcohol and a drug, and reckless driving, following a high-speed police chase that resulted in serious injuries to two passengers. She appealed on the grounds that the sentencing judge failed to consider a discharge without conviction and that her trial counsel did not advise her of this option. The court had to determine whether there was any error in the judge's consideration of sentencing options and in the trial counsel's advice, and whether a miscarriage of justice had occurred.

The court found that the judge did consider the relevant factors for a discharge without conviction and that it was implicit in the sentencing decision. The court also found that the trial counsel reasonably concluded that a discharge without conviction was not a realistic option given the seriousness of the offence and the judge's sentencing indication. The court further considered whether a discharge without conviction would have been appropriate and found that the gravity of Johnstone's offending, despite mitigating factors, was high, and the consequences of a conviction were not out of proportion to the gravity of the offending. Therefore, the court concluded that there was no miscarriage of justice and dismissed the appeal.

Orders