Johnstone v Police - [2021] NZHC 1560

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-419-29

[2021] NZHC 1560

BETWEEN
DANIEL JOHNSTONE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 June 2021

Appearances:

A A R Pell for Appellant B Harris for Respondent

Judgment:

29 June 2021

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 29 June 2021 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Hamilton Legal, Hamilton

JOHNSTONE v NEW ZEALAND POLICE [2021] NZHC 1560 [29 June 2021]

[1] Mr Johnstone pleaded guilty in the District Court to charges of arson and obtaining a pecuniary advantage by deception. On 28 April 2021 Judge P R Connell sentenced Mr Johnstone to three months home detention.1

[2] Mr Johnstone appeals against sentence. He contends the Judge adopted a starting point that was too high on the arson charge, and this led to an end sentence that is manifestly excessive. In addition, he contends the Judge erred by imposing a sentence of home detention.

The offending

[3] The facts on which Mr Johnstone was to be sentenced were contained in two agreed summaries of facts.

The arson charge

[4] The summary for this charge records that just before 8 pm on 31 December 2020 Mr Johnstone was in the vicinity of a laundromat in Fairfield. He sat down and smoked a cigarette at the rear of the laundromat a short distance away from two bins filled with cardboard. Whilst smoking the cigarette Mr Johnstone used it to burn holes in a piece of cardboard lying on the ground. A short time later he noticed that the cardboard was burning. He then removed two water bottles from his backpack and attempted to extinguish the fire. There was insufficient water in the bottles to fully soak the burning cardboard to ensure it would not re-ignite. Mr Johnstone then left the area notwithstanding the fact that he could still see smoke rising from the cardboard.

[5] A short time after Mr Johnstone left the area, the cardboard burst into flame. The fire spread to the cardboard in the bins and then to an adjacent wooden fence. From there the flames spread to the wall of the laundromat, charring the paint and burning plastic guttering and wiring. The fire also destroyed an external air conditioning unit and a surveillance camera that had earlier captured Mr Johnstone’s activities.

1 Police v Johnstone [2021] NZDC 7942.

[6] Mr Johnstone returned to the scene approximately an hour after the fire had been extinguished by members of the fire service. He was immediately recognised as the person responsible for causing the fire and arrested by the police. When spoken to about the incident Mr Johnstone acknowledged he had lit a fire using a cigarette but said he believed he had put it out. The fire caused damage to the building and associated equipment to a total value of approximately $5,000.

The charge of obtaining by deception

[7] The charge of obtaining…

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 [2021] NZHC 1560
Case: [2021] NZHC 1560
Decision Date: 29 June 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Daniel Johnstone appealed against his sentence for arson and obtaining a pecuniary advantage by deception. The District Court had sentenced Johnstone to three months home detention. The High Court considered whether the starting point and the type of sentence were appropriate. The court found that the starting point of 15 months imprisonment for the arson charge was too high, and a starting point of nine months imprisonment was more appropriate. However, the court concluded that the final sentence of three months home detention was not manifestly excessive, as it was within the available range. The court also found that the District Court judge was not bound to follow the pre-sentence report's recommendation of intensive supervision coupled with community work, given Johnstone's previous sentences of supervision for similar offences.

The appeal against the sentence was dismissed, and the original sentence of three months home detention was upheld. The court found that the District Court judge had appropriately considered the aggravating and mitigating factors in Johnstone's offending and had applied the appropriate discounts for his guilty pleas and mental health issues. The court also noted that the sentence of home detention was an appropriate alternative to imprisonment, given Johnstone's personal circumstances. Overall, the High Court found that the District Court judge had exercised his sentencing discretion appropriately and had not made any significant errors in his approach to sentencing.

Orders