Johnstone v Police
[2021] NZHC 1560
•29 June 2021
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 a pecuniary benefit by deception was laid after Mr Johnstone advertised a Playstation for sale on a website. The victim agreed to buy it and paid the sum of $350 into Mr Johnstone’s bank account. Over the next few days Mr Johnstone contacted the victim requesting further funds to cover the cost of shipping. This resulted in the victim making a further payment of $40 into Mr Johnstone’s bank account.
[8] The victim became suspicious when the Playstation did not arrive and asked Mr Johnstone if he could collect it directly from him. Mr Johnstone initially declined this request but eventually agreed to allow the victim to collect the Playstation provided he paid the further sum of $30. The victim complied with this request and Mr Johnstone provided him with an address from which he could collect the Playstation. When the victim went to collect the Playstation he found that the address Mr Johnstone had given him was fictitious. It follows that Mr Johnstone obtained a total sum of $420 from the victim but gave the victim nothing in return.
The sentence
[9] The Judge took a starting point of 15 months imprisonment on the charge of arson and added a one month uplift to reflect the charge of obtaining a pecuniary benefit by deception. From the resulting sentence of 16 months imprisonment the Judge deducted four months to reflect Mr Johnstone’s guilty pleas and a further four months to reflect mental health issues from which he suffers. These were identified in a psychological report provided at sentencing. The Judge then converted the resulting sentence of eight months imprisonment to a sentence of three months home detention. He subsequently added a further sentence of two months home detention
in return for remission of some of Mr Johnstone’s outstanding fines. That aspect of the sentence is not the subject of the present appeal.
The arguments
[10] On Mr Johnstone’s behalf Mr Pell contends the degree of property damage and danger to others was minimal. On the basis of authorities such R v Smith, Mr Pell contends the Judge ought to have selected a starting point that was significantly less than 15 months.2 In the District Court he submitted that a starting point of four months imprisonment was appropriate and he maintains that argument on appeal.
[11] Mr Pell also submits the Judge should not have sentenced Mr Johnstone to home detention. Instead, he contends the Judge ought to have followed the recommendation contained in the pre-sentence report. The report recommended a sentence of intensive supervision coupled with community work.
[12] On the Crown’s behalf Mr Harris accepts that the offending in Smith was more serious than that in the present case. It involved the premeditated burning of a motor vehicle. A starting point of 12 months imprisonment was adopted in that case. The Crown refers me, however, to Gillard v R. This is another case involving the intentional burning of a motor vehicle that led to further property damage being caused. In that case it was held that a starting point of 26 months imprisonment was appropriate.3
[13] Mr Harris concedes, however, that the Judge adopted a starting point that was too high. He says Mr Johnstone’s conduct is best described as reckless, and that a starting point of between eight and 10 months imprisonment was justified. Mr Harris does not accept this resulted in an end sentence that was manifestly excessive. He says a sentence of three months home detention cannot be described as being outside the available range.
2 R v Smith HC Auckland CRI-2011-092-9515, 5 August 2011.
3 Gillard v R [2020] NZHC 1140 at [43].
Decision
Starting point on the arson charge
[14] The arson charge was amended at a late stage so that it was laid under s 267(3) of the Crimes Act 1961. This applies in cases where the offender intentionally damages property by fire with reckless disregard for the safety of other property. It carries a maximum sentence of five years imprisonment whereas offences committed under s 267(1) and (2) carry a maximum sentence of 14 years imprisonment.
[15] The Judge said he was bound by authorities that suggested a starting point of imprisonment was appropriate for offending such as this.4 He did not, however, cite the authorities to which he was referring. Nor did he say why they suggested he should adopt a starting point of 15 months imprisonment. The issue of what starting point was appropriate for Mr Johnstone’s offending is complicated further by the fact that counsel have been unable to find any appellate authority relating to sentences imposed under s 267(3).
[16] The aggravating feature of the present offending lies in the fact that Mr Johnstone knew the cardboard was still smoking when he left the scene. His plea amounts to an acknowledgement that he knew there was a risk the cardboard would continue to burn after he left the scene and that the fire would spread to property in the vicinity. Such property comprised commercial premises rather than a residential address. Nevertheless the fire caused damage to a total value of approximately $5,000 and I do not accept Mr Pell’s description of this as being minimal.
[17] Mr Johnstone acknowledged having ingested synthetic cannabis on the day of the offending. As the Judge observed,5 this cannot be regarded as a mitigating factor. The report prepared for sentencing suggests, however, that it may have exacerbated Mr Johnstone’s underlying mental health issues and thereby clouded his ability to properly appreciate the consequences of his act in leaving the scene whilst the cardboard was still smouldering.
4 Police v Johnstone, above n 1, at [17].
5 At [9].
[18] In common with counsel I consider the Judge adopted a starting point that was too high having regard to these factors. I do not, however, accept Mr Pell’s submission that a starting point of four months imprisonment was appropriate. This is less than five per cent of the maximum penalty and would not adequately reflect the aggravating features of the offending including the amount of damage caused. I consider Mr Harris’s submission to be closer to the mark given that a starting point of between eight and 10 months imprisonment is equivalent to approximately 15 per cent of the available maximum penalty. That proportion seems to me to strike an appropriate balance between the aggravating and mitigating aspects of the offending. I therefore take a starting point of nine months imprisonment as being appropriate for Mr Johnstone’s offending.
Was the end sentence manifestly excessive?
[19] The fact that the Judge selected a starting point that was too high does not necessarily mean the end sentence was manifestly excessive. As always, the end sentence is what matters rather than the way in which it was constructed.6
[20] In the present case I consider there are two areas in which the Judge would have been justified in applying an uplift but did not do so. The first flows from the fact that Mr Johnstone was serving a sentence of supervision at the time of the present offending. This was imposed on 27 May 2020, when Mr Johnstone was sentenced on four further charges of obtaining a pecuniary advantage by deception. This means the Judge would have been justified in applying an uplift of at least one month to the starting point. A sentence of ten months imprisonment was therefore justified on the arson charge.
[21] On the Judge’s approach the sentence would then increase by a month to reflect the charge of obtaining a pecuniary benefit by deception. I consider an uplift of one month could have been applied on this charge to reflect the fact that the present offending represents Mr Johnstone’s sixth conviction on this particular charge. He also has several other convictions for offences involving dishonesty. I note that in his written submissions filed prior to sentencing in the District Court Mr Pell
6 Kumar v R [2015] NZCA 460 at [81].
acknowledged an uplift of two months was appropriate on the second charge having regard to this factor. This means a sentence of around twelve months imprisonment could have been justified before taking into account mitigating factors.
[22] There is no dispute regarding the level of discount the Judge applied to reflect Mr Johnstone’s guilty pleas and the mental health issues identified in the report provided by his counsel. These reduced the sentence by a total of 50 per cent. Applying the same reduction to a sentence of twelve months imprisonment produces an end sentence of six months imprisonment. This in turn converts to a sentence of three months home detention. It follows that the end sentence imposed by the Judge cannot be regarded as manifestly excessive.
Should the Judge have imposed a sentence of intensive supervision coupled with community work?
[23] It was obviously open to the Judge to impose the sentence recommended in the pre-sentence report. However, he was not bound to do so. Furthermore, I do not consider the Judge can be criticised for departing from the recommendation given the fact that Mr Johnstone has already received two sentences of supervision for similar offending and they appear to have had little deterrent or therapeutic effect.
Result
[24]The appeal against sentence is dismissed.
Lang J