Johnstone v Police - [2013] NZHC 306

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000230 [2013] NZHC 306

RODNEY JAMES JOHNSTONE
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 4 February 2013

Counsel: Appellant in Person
S Pidgeon for the Respondent

Judgment: 25 February 2013

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 25 February 2013 at 3:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland.

JOHNSTONE V POLICE HC AK CRI-2011-404-000230 [25 February 2013]

Introduction

[1] On 25 May 2010, in the Auckland District Court, Rodney James Johnstone, the appellant in this case, pleaded guilty to a charge of burglary and was sentenced to five months’ home detention.[1] He was also ordered to pay reparation of $13,010 at the rate of $25 per week.

[1] Police v Johnstone DC Auckland CRI-2010-004-1904.

[2] On 22 June 2010, Mr Johnstone filed an appeal against sentence. The grounds of the appeal related solely to the reparation order.

[3] On 9 August 2010, Mr Johnstone breached his sentence of home detention by leaving his home detention residence without approval from a probation officer. He was located that day at another address and admitted to Probation staff that he had consumed alcohol and cannabis earlier in the day. The Probation Service charged Mr Johnstone with breach of home detention. It also applied to cancel the home detention sentence and substitute a sentence of imprisonment.

[4] On 12 August 2010, Mr Johnstone pleaded guilty to the charge of breach of home detention and did not oppose the application to cancel the sentence of home detention and substitute it with a sentence of imprisonment. He was accordingly remanded in custody until 2 September 2010 for a pre-sentence report and sentence.

[5] On 2 September 2010, Mr Johnstone was sentenced to two months imprisonment for breach of the sentence of home detention. However, Court staff told the Probation Service and Mr Johnstone’s lawyer that the application to cancel the sentence of home detention could not be heard because Mr Johnstone still had an active appeal lodged against the sentence. Accordingly, the application was put off to the next day to enable the Papakura District Court to seek advice on how to load the application into their system as at that stage an appeal was still pending.

[6] On 3 September 2010, on advice from the Probation Service and his lawyer, Mr Johnstone filed a handwritten notice of abandonment of his appeal in the High

Court at Auckland. The Court then advised the parties that the application to cancel the sentence of home detention could now be determined. Mr Johnstone was accordingly sentenced to two months’ imprisonment in substitution for the sentence of home detention to run concurrently with the two month term of imprisonment that he had received the previous day in relation to the charge of breach of the sentence of home detention.

[7] On 27 June 2011, Mr Johnstone filed a further appeal in the Auckland District Court against…

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 [2013] NZHC 306
Case: [2013] NZHC 306
Decision Date: 25 February 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Rodney James Johnstone, the appellant, appealed against the reparation order imposed on him by the Auckland District Court. The appeal focused on the adequacy of the reparation ordered by the sentencing judge, who had ordered Johnstone to pay $13,010 for the burglary. The Crown conceded that the advice given to Johnstone to abandon his appeal against the sentence of home detention was incorrect, leading to the abandonment of the appeal and subsequent sentencing to imprisonment. The court considered whether there was an error vitiating the lower court’s original sentencing discretion, whether the judge made an error, and whether the reparation order was excessive or inadequate. The High Court found that the reparation order was excessive as it did not consider Johnstone’s means to pay and would take approximately 10 years for him to pay the total sum ordered. The court also found that the value of the stolen property may not amount to $13,010 due to depreciation and changes in replacement costs. The appeal was allowed, and the reparation order was quashed and replaced with a reparation order of $4,340, which Johnstone is to continue to pay at $25 per week.

Orders