Johnstone v The Queen - [2011] NZCA 107

IN THE COURT OF APPEAL OF NEW ZEALAND

CA518/2010
[2011] NZCA 107

BETWEEN RICHARD JAMES JOHNSTONE
Appellant

AND THE QUEEN
Respondent

Hearing: 24 March 2011

Court: Randerson, Simon France and Lang JJ

Counsel: W T Nabney for Appellant
N P Chisnall for Respondent

Judgment: 28 March 2011 at 3 p.m.

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

Introduction

Mr Johnstone was found guilty at trial on charges of manufacturing methamphetamine, stealing a Jeep Cherokee and receiving stolen property. On 15 July 2010 Venning J sentenced him to six years imprisonment on the charge of manufacturing methamphetamine.[1] He ordered that that sentence was to be served cumulatively on a sentence of seven years of imprisonment that Mr Johnstone was already serving for further drug-related offending. The Judge imposed concurrent sentences on the remaining charges.
[1] R v Johnstone HC Tauranga CRI-2008-087-2122, 15 July 2010.
Mr Johnstone appeals against the sentence on the basis that it was manifestly excessive.

Facts

The charge of manufacturing methamphetamine followed a covert police surveillance operation targeting a remote rural property in Pikowai. Mr Johnstone was seen at that address between 22 August and 1 September 2008, and communications that the police intercepted during this period showed that he and his co-offender, Mr Marr, were discussing products, chemicals and processes used in the manufacture of methamphetamine. On 9 September 2008 the police executed a covert search warrant at the address, and took swabs that disclosed the presence of methamphetamine consistent with manufacture having occurred. When they searched Mr Johnstone’s home, they located equipment and precursor materials that were obviously for use in manufacturing methamphetamine.
The theft charge resulted from the fact that Mr Johnstone had directed a third party to steal a jeep for him to replace a vehicle that Mr Marr had damaged. The receiving charges related to the receipt of a stolen Tomtom GPS unit and a laptop computer.

The structure of the sentence

The Judge was required to make a factual finding regarding the probable quantity of methamphetamine that Mr Johnstone and Mr Marr had manufactured. Mr Johnstone’s former partner had made a statement to the police in which she described in detail her discovery and subsequent tour of the manufacturing operation at Pikowai. Based on what Mr Johnstone had told her, the operation was capable of producing up to 42 ounces, or 1100 grams, of methamphetamine. She told the police that she had actually seen the manufacture of approximately four ounces, or 113 grams, of methamphetamine. The intercepted communications confirmed that the operation had produced not less than 45 to 67 grams.
Having regard to the totality of the evidence, the Judge concluded that Mr Johnstone and Mr Marr had manufactured not less than 100 grams of methamphetamine at the Pikowai address. On that basis the Judge placed the offending squarely in the middle of the second band in R v Fatu[2] which relates to manufacture of between five and…

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 The Queen

Details

AGLC: Johnstone v The Queen [2011] NZCA 107
Case: [2011] NZCA 107
Decision Date: 28 March 2011

CaseChat Overview and Summary

In the case of Johnstone v The Queen, the appellant, Richard James Johnstone, was found guilty of manufacturing methamphetamine, stealing a Jeep Cherokee, and receiving stolen property. He was sentenced to six years imprisonment for manufacturing methamphetamine, to be served cumulatively with a seven-year sentence he was already serving for drug-related offenses. The concurrent sentences for the remaining charges were also imposed. Johnstone appealed against the sentence, arguing that it was manifestly excessive. The appeal was heard by the Court of Appeal of New Zealand, comprising Randerson, Simon France, and Lang JJ.

The legal issues before the court included whether the sentence imposed by the trial judge was manifestly excessive, and whether the totality principle was correctly applied in determining the sentence. The court needed to assess whether the sentence was appropriate in light of the totality of the offending and the principles of sentencing. The court also considered whether the sentence took into account the seriousness of the offenses and the appellant's criminal history.

The court found that the sentence imposed by the trial judge was not manifestly excessive. The court noted that the trial judge had correctly identified the starting point for the charge of manufacturing methamphetamine, taking into account the quantity of methamphetamine produced. The court also found that the trial judge had appropriately considered the aggravating factors, such as the fact that the offending occurred while the appellant was on bail for similar offenses, and the dishonesty offenses. The court concluded that the sentence of six years imprisonment was appropriate, taking into account the totality of the offending and the need to deter the appellant from future offending.

The appeal was dismissed, and the sentence imposed by the trial judge was upheld. The court emphasized the importance of considering the totality of the offending and the need for an appropriate sentence to deter the appellant from future criminal activity. The court found that the sentence imposed was not manifestly excessive and was proportionate to the seriousness of the offenses.

Orders