R v Johnson
[2020] NZHC 169
•14 February 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-092-5223
[2020] NZHC 169
THE QUEEN v
TRACEY JUNE JOHNSON
Hearing: 14 February 2020 Counsel:
MS Williams and JN Xulue for Crown
PL Borich QC and JM Hudson for defendant
Sentenced:
14 February 2020
SENTENCING NOTES OF FITZGERALD J
Solicitors: Kayes Fletcher Walker, Auckland
To:P Borich QC, Auckland J Hudson, Auckland
R v Johnson [2020] NZHC 169 [14 February 2020]
Introduction
[1] Ms Johnson, you appear for sentencing before me today having been found guilty by a jury of the attempted murder of your son.
[2] I wish to say at the outset that the Court fully accepts you love your son very much, and putting aside recent events, that you have always sought to protect and care for him. I would hope that, in time, and with the right support and supervision, you can recommence some contact with him.
[3] I also want to say at the outset that sentencing in a case like this is not easy; the facts are unique; and on any view, it is a tragic case. You clearly had a disturbed mental state at the time of the offending, and it is also clear your mental state was directly causative of the offending. This significantly reduces your moral culpability, and in turn, moderates a number of the sentencing principles I must take into account today, including those of denunciation and deterrence.
[4] I think it is appropriate to convey at the outset that I do not intend to sentence you today to imprisonment. In my view, a sentence of imprisonment would be disproportionate to the nature of your offending and your moral culpability. Rather, at the end of today’s sentencing, I will be sentencing you to a period of home detention.
[5] Despite having told you this already, it is nevertheless important I explain to you, the lawyers here today and the wider community, why I have reached this conclusion. So, Ms Johnson, please bear with me while I work through the reasons for arriving at the sentence that I have just outlined.
Background
[6]I first turn to the factual background to your offending.
[7] When you gave evidence at trial, you described yourself as having been an alcoholic until about 10 years ago, but that you have been sober since that time. At
the time of the offending, you were living in Weymouth with your partner, and, as I will come to discuss, also your son M.1
[8] M is your only child. You were 17 years old when you had him, and he was born some eight weeks premature. He was born with hydrocephalus, which is a build- up of fluid in the brain. He also developed a range of significant intellectual disabilities, and now presents with autism spectrum disorder, Tourette’s syndrome, epilepsy and mutism (that is, he is non-verbal).
[9] It is important to stress that M’s disabilities do not reduce the value of his life. The Court must be astute to protect the weak and the vulnerable. It must also recognise the sanctity of life, such that the law does not and cannot countenance the taking or attempted taking of any life, irrespective of the circumstances in which that occurs.2
[10] M is now 33 years old. Until he was about 17, he was cared for by both you and your parents. From 2004 to 2016, he was resident at and under the care of an independent mental health organisation in Hamilton. In 2016, however, you became concerned at reports of the care M was receiving and events said to have taken place at that facility. You accordingly made the decision to remove him from care and he came to live permanently with you and your partner in Weymouth.
[11] It was clear to me from the evidence at trial that you and your partner did everything humanely possible to look after M to the best of your abilities. But on any view, this was exceptionally challenging, stressful and difficult. He essentially needs 24-hour care and supervision, on at least a two to one basis. As noted earlier, he is non-verbal, meaning it is difficult to communicate with him. He sleeps irregularly, which in turn impacted on your ability to sleep. He is prone to violent outbursts, and while living with you, these were mainly directed at you. He needs assistance with all aspects of his life, such as bathing, dressing, eating and the like. In general terms, he cannot be left on his own. Given your partner worked, looking after M fell largely to you. You report that you did not receive any real external or State assistance. Why
1 I have not made a suppression order of the victim’s name, but have taken the view it is appropriate in the published version of these sentencing notes, to refer to him simply as “M”.
2 R v Albury-Thomson (1998) 16 CRNZ 79 (CA) at 85.
that is so, I do not know. You got some “time off” one day a week, when your partner was home, which enabled you to catch up on general household chores and the like; but never any sustained periods of sleep. Ultimately, this lack of sleep came to have a dramatic effect on you.
[12] On the day before the events in question, your partner described you as acting in a strange way. He observed you with your hand held to your ear and talking, as if you were on the phone. You were sometimes muttering to yourself, as if talking to people who weren’t there. You would seem to drop in and out of these states. Later that night, you spent considerable time in the garage, where your partner found you at 3 am. The garage door was up, and you said, for example, that the Police were bringing around a friend’s daughter, to a safe house. There is no dispute that this was not actually happening.
[13] The unusual behaviour continued the next day. Notably, at around lunchtime, and quite out of the blue, you accused your partner of sexually assaulting of your son. I should stress that there is no suggestion this actually happened; but this delusion appears to have triggered what happened next.
[14] Unbeknown to your partner, you then took M out of the house and were seen by a number of people wandering around the streets of Weymouth. It was May, but despite this, you were wearing a nightgown and dressing gown, and M only boxer shorts and bare feet. As he does, M walked behind you, often walking backwards, which is another trait he has.
[15] While walking around Weymouth for some hours, you encountered a number of members of the public. They gave evidence at the trial. They variously described you as wanting to get a car and to take M to hospital; and that you said he was in “health danger”. Some described their encounter with you as “bizarre” and that you seemed, to use their words, “off your dial”. You got into a physical altercation with one lady, trying to take keys to her car out of her hands. You spoke about “the phones being down” and to one man of an apocalypse or Armageddon. Another member of the public gave you and M a lift in his car to Weymouth medical centre or towards the
medical centre, and described that on the way, you put his umbrella out the car window and opened and closed it several times, saying that you were “signalling to the guys”.
[16] The last sighting of you was at around 3 pm, leading M down the steps to the estuary at Weymouth Park. Other than your self-report to the Police the next day, there was no other evidence of what occurred at the estuary later that afternoon and overnight.
[17] The next morning, however, at around 7 am, M was seen by a member of the public who was walking his dog at the estuary. He saw M standing on the rocks out in the water, some 40 or so metres out from the high tide mark. M did not respond to the man’s calls, and so the Police were notified and went into the water to retrieve him. Thankfully M was not seriously harmed, other than having some scratches and abrasions, though not surprisingly, he was extremely cold.
[18] Separately, you had returned home at around 11 am that morning. You reported to your partner that you had taken M out into the water and drowned him. At that time, you did not know that he had been found. You then called the Police and again reported that you had drowned him. You were later taken to the Police station, where you gave a lengthy and detailed account of what happened. You said you had taken M out into the water, and knowing he could not swim, made him doggie paddle until he was tired out. When he was fully worn out, you swam over the top of him and pushed him under. You said you continued to hold him like that for at least a minute, until you saw he had stopped moving. You then swam away, and believing you had drowned him, you tried to drown yourself also. But you were not successful and ultimately ended up on the shore. In your police interview, you were somewhat confused as to what happened next, but it appears you slept for some time at or near the edge of the estuary and then made your way home.
[19] You gave evidence at the trial, and said you no longer had any memories of these events, or of your discussions with the Police or the detailed interview that you gave. An issue for the jury was whether your account of events was reliable, or whether it was a reasonable possibility that you were “confabulating”, or (incorrectly) filling in memory blanks with what you thought must have happened. But the jury’s
verdict demonstrates that it accepted at least the essence of your account to the Police was reliable; in other words, they were sure that you had taken M into the water with the intention of trying to drown him. Having heard all the evidence, I agree with the jury’s assessment.
Mental state at the time of offending
[20] There is no doubt that your mind was in a seriously disturbed state at the time of your actions. A key theme of the evidence was the extreme stress you were under as a result of M’s care, coupled with a chronic and acute lack of sleep. I heard evidence (in a voir dire) from two consultant psychiatrists, Dr Duff for the defence, and Dr Street for the Crown. Dr Duff also gave evidence before the jury.
[21] Both experts agreed that at that time of your offending, you were suffering from chronic sleep deprivation. And as well as long term sleep deprivation, you had in fact not slept at all for at least 48 hours prior to the offending. Dr Duff said this was beyond the reasonable limits the average person would have been able to sustain. She reported that sleep deprivation for as little as 24 hours can evoke, with increasing frequency and severity as the period of sleep deprivation increases, a number of cognitive and mental health problems, including memory impairments, hallucinations, delusional beliefs, disassociative experiences and distortions of time. With reference to your chronic and acute lack of sleep, Dr Duff said:
…there’s very good evidence that depriving people of sleep is extremely detrimental to our mental state. If you do that for a long enough period of time, then all of us will become extremely unwell in our mental state in the short term, to such an extent that it is seen as a form of torture to deprive people of sleep.….
[22] The experts were largely agreed that your disturbed mental state was accordingly caused by external factors, and in particular, your serious lack of sleep, rather than any internal or ongoing mental health issues.
[23] Ultimately, I ruled that the external factors operating on your mental state at the time of the offending did not give rise to the defence of insanity. Whether you were in a state of automatism at the time of the offending was left to the jury, though its verdict shows that it rejected that as a reasonable possibility. The jury’s verdict
reflects that they were sure that, despite the mental disturbance that you were clearly experiencing, you had some capacity to form the mental elements of the charge of attempted murder; and in particular, that when you took M into the water, you had some capacity to and did in fact intend to take his life at that time.
[24] Despite New Zealand law not recognising diminished responsibility as a defence, there is no doubt that your diminished mental capacity can be taken into account by me at sentencing.3
[25] A diminished mental state can be relevant in two ways. It can be taken into account at the first stage of the sentencing exercise, when determining the starting point of any sentence, which involves assessing the gravity of the offending and which is affected by the degree of the offender’s culpability.4 Ultimately, sentencing has a moral base, such that mental disorder may mitigate moral fault and therefore criminal culpability.5 But to be taken into account at this first stage, there must be a link between the mental disorder and culpability.6 As I have noted earlier, there is clearly a link in this case, given I am satisfied that, but for your disturbed mental state, you would not have offended.
[26] Diminished mental capacity may also be taken into account in the second stage of the sentencing exercise, when considering factors personal to the offender.7 The existence of the condition at the date of sentencing might, for example, mean a given sentence will weigh more heavily on the offender than a person in normal health, and where there is a serious risk of imprisonment having a significant adverse effect on an offender’s mental health, this will also tend to mitigate punishment.8
[27] It is useful to note that the primary relevance of your disturbed mental state to the appropriate sentence in this case is that it greatly reduces your moral culpability. That is therefore to be taken into account when assessing the start point.
3 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [43].
4 At [45]. See also Sentencing Act 2002, s 8(a).
5 Nelson v R [2014] NZCA 121 at [22], cited in Shailer v R, above n 3, at [50].
6 Shailer v R, above n 3, at [50]–[51].
7 At [45]. See also Sentencing Act 2002, s 9(2)(e).
8 Shailer v R, above n 3, at [47(f)].
Provision of advice to Court report
[28] As well as the lawyers’ submissions, I have read the Provision of Advice to Court (or PAC) Report. I regret to say, but with no disrespect to the report writer, that I have not found it particularly helpful. The report writer does not appear to be aware of or appreciate the extent your mental state was disturbed at the time of the offending. Your risk of re-offending is also assessed by the report writer as medium. I disagree. Absent the very particular circumstances leading to your offending, there is little to no likelihood of you re-offending in a similar way. Further, the report recommends you attend an anti-violence programme. Given the cause of your offending, I do not see that as being necessary.
[29] The report writer notes that you continue to deny your offending, but on the basis that you have no memory of the events, or your interactions with the Police the next day. The report nevertheless notes that you were visibly upset and feeling helpless with your current situation, and that you expressed your love for your son.
[30]I now turn to the parties’ submissions.
The parties’ submissions
Crown submissions
[31] The Crown suggests a starting point of four years’ imprisonment and identifies four features of your offending it says are aggravating. First, it says M was a particularly vulnerable victim. Second, it submits the offending involved a significant breach of trust. Third, the Crown suggests your offending was somewhat premeditated; or at the least, it was not impulsive. Finally, the Crown points to the (largely superficial) injuries M suffered. It says there are no mitigating features of the offending itself.
[32] The Crown does not seek an uplift for your previous convictions but says a discount for prior good character is not available. However, it recognises that, at the time of the offending, your cognitive functioning was impaired. As such, it accepts
your culpability is reduced. The Crown submits a discount of up to 20 per cent would be appropriate in light of your mental health issues.
[33] Further, and as Mr Williams has emphasised this morning, the Crown acknowledges the uniqueness of the facts of the offending and your own circumstances. It, quite responsibly in my view, recognises that a sentence of imprisonment may be disproportionally severe, and accepts that a community-based sentence, with a rehabilitative focus, may be more appropriate.
Defence submissions
[34] Mr Borich, on your behalf, says your offending was unusual and extremely fact-specific. He accepts M’s vulnerability is an aggravating factor, as is the significant breach of trust inherent in the offending. However, Mr Borich emphasises that your own mental state was compromised at the time. Further, he disagrees the offending involved premeditation. The superficial injuries M sustained are acknowledged.
[35] Mr Borich identifies several mitigating factors which are personal to you. He says you are extremely remorseful for your offending. The lack of contact with M is, in itself, a substantial and ongoing punishment for you. Mr Borich also submits a discount of up to 30 per cent in light of your diminished mental capacity at the time of the offending is appropriate. Mr Borich further submits that a discount for the time you spent on strict EM bail is also needed.
[36] Lastly, Mr Borich says that yours is a case which warrants the exercise of mercy. He acknowledges the aggravating features of the offending, but balances this against the intolerable pressures you were facing at the time. Mr Borich says it is unlikely you will re-offend in a similar way and the need for specific deterrence is minimal. In light of those factors, Mr Borich submits a community-based sentence is appropriate.
Sentencing principles
[37] Turning now to the approach I have adopted when determining the sentence in this case. I must take into account the need to hold you accountable for the harm done to the victim, to denounce your conduct and to deter you and others from committing the same type of offending. I also take into account the gravity of the offending, your level of culpability and the need to try and ensure consistency with sentencing in like cases. I must also impose the least restrictive outcome that is appropriate in the circumstances.
Starting point
[38] The facts of this case are unusual, but I have been referred to or located a number of cases which provide some guidance as to an appropriate starting point in this case.
[39] The Crown and Mr Borich each refer to Australian decisions decided in the state of Victoria. While accepting that at least one of the cases is broadly comparable, the offence of attempted murder in Victoria carries a maximum penalty of 25 years’ imprisonment,9 while in New Zealand the maximum penalty is 14 years.10 Any comparison must take that into account.
[40] Both lawyers have referred to a case called Nichol.11 In that case, a mother was convicted of the attempted murder of her severely disabled son. He suffered from autism, intellectual disability and epilepsy. At the time of the offending, the mother was in the midst of a “major depressive episode”;12 largely as a result of the stress and exhaustion of caring for her son. Recognising the need for “compassion and mercy”,13 the Judge ordered that she be released on a community correction order for a period of two years.14 He recorded that had it not been for the offender’s guilty plea, an end
9 Crimes Act 1958 (Vic), ss 321P(1) and (1A). See also Guode v R [2018] VSCA 205 at [3], n 7.
10 Crimes Act 1961, s 173(1).
11 Department of Public Prosecutions v Nichol [2017] VSC 809. The Crown also referred to Guode v R, above n 9, though I do not consider this case comparable or of any real assistance.
12 At [19]–[20].
13 At [24].
14 At [26].
sentence of four years’ imprisonment – with a non-parole period of two years – would have been imposed.15
[41] As you have also heard this morning, Mr Borich also points to the New Zealand case of Crutchley.16 There, an adult son was convicted of the attempted murder of his mother, who had terminal stomach cancer. The son believed her death was imminent. With what he believed was his mother’s agreement, he administered a large dose of pain medication to accelerate her death. Keane J stated that, in a case of attempted murder, there is little room for a sentence short of imprisonment, subject to the possibility of home detention.17 For any lesser sentence to be imposed, Keane J held that the circumstances would have to be truly exceptional.18 The Judge would have imposed a sentence of four months’ home detention in that case, but recognised that would have crippled the offender’s business (he was self-employed).19 An end sentence of six months’ community detention was imposed, along with 150 hours of community work.
[42] Mr Borich also refers to a case called Martin.20 In that case, a daughter (who was a registered nurse) was convicted of the attempted murder of her elderly mother, who was suffering from terminal cancer. The Court of Appeal held that that case was “not a case of a person driven to the depths of anguish and despair, acting impulsively and otherwise with greatly diminished responsibility” (emphasis added).21 An end sentence of 15 months’ imprisonment was imposed, with leave to apply for home detention, and that was not disturbed on appeal.
[43] In my view, there are four other New Zealand cases which provide some guidance in this case.
[44] In a case called Law, an elderly man was sentenced following his guilty plea to one charge of murder.22 He killed his wife of over 50 years who was suffering from
15 At [27].
16 R v Crutchley HC Hamilton CRI-2007-069-83, 9 July 2008.
17 At [64].
18 At [64].
19 At [101].
20 R v Martin CA199/04, 14 February 2005.
21 At [168].
22 R v Law (2002) 19 CRNZ 500 (HC).
dementia. The two had agreed, that if one of them developed Alzheimer’s, the other would take that person’s life.23 Randerson J recognised the extent of the offender’s desperation and the stress he was under as his wife’s caregiver.24 The Judge imposed an end sentence of 18 months’ imprisonment, with leave to apply for home detention.
[45] A similar case is that of R v Faithfull.25 In that case, a husband attempted to murder his wife, who had been diagnosed with pancreatic cancer. At the time of the offending, the husband was under significant stress as a result of his wife’s suffering, was sleep-deprived and depressed, and had not slept for a couple days.26 He had also been drinking. Venning J adopted a starting point of two years and three months’ imprisonment.27 A 12-month discount (or approximately 45 per cent) was awarded, to reflect the offender’s guilty plea, remorse, previous good character and efforts at making amends.28 An end sentence of 12 months’ home detention was imposed.
[46] In a case called Knox, a mother killed her 20-year old severely disabled daughter.29 The mother had full-time solo care of her daughter for those 20 years and battled with a health system which (in her view) consistently fell short.30 She genuinely believed that there was no other option but to end her daughter’s life.31 Williams J adopted a start point of six years’ imprisonment, which balanced the intentional taking of a life with the mother’s reduced culpability.32 Eight months was deducted for good character and for the minimal prospect of any further offending, and a further 25 per cent for her guilty plea.33 The end sentence in that case was one of four years’ imprisonment.
[47] In a case called Albury-Thomson, a mother was found guilty of the manslaughter of her severely autistic daughter.34 The mother had been caring for her
23 At [47], Randerson J accepted that the offender genuinely believed he was carrying out his wife’s wishes in the circumstances and acted out of compassion rather than malice.
24 At [49].
25 R v Faithfull HC Auckland CRI-2007-044-7451, 14 March 2008.
26 At [6].
27 At [15].
28 At [16]–[19].
29 R v Knox [2016] NZHC 3136.
30 At [70].
31 At [76].
32 At [78].
33 At [78].
34 R v Albury-Thomson, above n 2.
daughter during the school holidays and respite care had become unavailable. At the time, the mother was suffering from a mixture of anxiety, depression, frustration and anger; she felt she had to put an end to the suffering of her daughter and her own distress.35 The Court of Appeal recognised the circumstances were “exceptional” and emphasised that the mother’s stress levels had exceeded her endurance.36 On appeal, the sentence of four years’ imprisonment was quashed, and a sentence of 18 months’ imprisonment was imposed.
[48] Turning back to the present case, I accept M’s vulnerability and the significant breach of trust are aggravating factors. But I do not attach significant weight to premeditation, as it is unclear when you decided to try to take M’s life, and it is a reasonable possibility it was only once you were on the beach with him. As I have said earlier today, prior to that time, you appear to have been preoccupied with keeping him out of danger and getting him to a hospital.
[49] I must also balance the seriousness of the offending and the value of human life, against your disturbed mental state at the time of the offending. I consider your culpability to be lower than in many of the cases I have just discussed. In many of them, the offender was suffering from significant stress and exhaustion, but there was no evidence of a mind sufficiently disturbed to lead to the hallucinations and delusions that we see in this case. And in some of those cases, the victim’s life was actually taken, resulting in convictions for murder (or manslaughter), and thus attracting much higher maximum penalties than in this case. In most of those cases, however, the offender had pleaded guilty, and thus the end sentence reflects the discounts attaching to that.
[50] Taking all these matters into account, and particularly reflecting your low moral culpability, I adopt a starting point of two years, six months’ imprisonment.
[51] I now turn to aggravating and mitigating factors personal to you, rather than the offending.
35 At 83.
36 At 87.
Personal aggravating and mitigating factors
Aggravating factors
[52]Both parties are agreed that there are no aggravating factors.
Mitigating factors
[53]However, there are a number of mitigating factors.
[54] I first consider good character and prospects of rehabilitation. I recognise the existence of prior convictions generally excludes the application of a discount for good character, in part because the prospects of rehabilitation may be diminished by contrary experience.37 However, the “absence of intervening offending after long distant convictions” may entitle an offender to a reasonable expectation of a good character discount.38 Devoted service to wider family can also be taken into account in this context.39
[55] You have been convicted of a reasonable number of offences over your life, but the large majority of these are relatively minor, and are traffic and alcohol related matters. You have had no convictions since you stopped drinking some 10 years ago. Your devoted service to your family, including looking after your elderly parents when they were ill, cannot be doubted. And as noted earlier, there is no real risk of you reoffending in a similar way, such that you have good prospects of rehabilitation.
[56] Given your prior convictions, any discount in this context must be relatively small. But given the matters just discussed, I award a five per cent discount, equivalent to approximately two months.40
[57] Mr Borich also presses for a discount for remorse. You continue to deny your offending, but notably that is on the basis that you now have no memory of what occurred. Your denial is therefore consistent with your compromised mental state at
37 Taylor v R [2017] NZCA 574 at [25].
38 At [25].
39 Davidson v R [2011] NZCA 356 at [18].
40 Rounded up.
the time of the offending. It must also be an intensely difficult thing for any parent to face up to the fact that they have tried to take their own child’s life. Further, I had the benefit of observing you give evidence at trial and have read the further observations made in the PAC report. I am satisfied that you are genuinely remorseful for what happened to M and whatever part you believe you played in it. I award a further five per cent discount for this.
[58] Taking these discounts into account brings your sentence to two years and two months’ imprisonment.
[59] I must also take into account the time you spent on EM bail prior to trial.41 But there is no rule as to how much of a discount for this (if any) should be given.42 However, the Court of Appeal has recently commented that a discount of between four to six months is potentially available for 12 months spent on EM bail without incident, taking into account its restrictive conditions.43
[60] You spent more than 12 months on electronically monitored bail, without incident, with only one and a half hours permitted per week to complete grocery shopping. I therefore reduce your sentence by a further four months, bringing it to one year and ten months’ imprisonment.
[61] This of course entitles me to consider a sentence of home detention. A residual discretion also remains which permits a Judge to “consider whether the circumstances provide special justification for the exercise of mercy”.44 Further, s 16 of the Sentencing Act 2000 directs that I must have regard to the desirability of keeping offenders in the community, as far as that is practicable and consonant with the safety of the community; a concern which does not arise in this case.
[62] On the particular facts of this case, I am fully satisfied that the relevant sentencing purposes and principles can be met with a sentence short of imprisonment. As noted at the outset, I accordingly propose to sentence you to a period of home
41 Sentencing Act 2002, s 9(2)(h).
42 Chea v R [2016] NZCA 207 at [110].
43 R v R [2017] NZCA 210 at [14].
44 R v Newald CA327/93, 12 October 1993 at [3].
detention. Reflecting your low culpability and the not insignificant time you spent on strict EM bail prior to trial, I adopt a sentence of eight months’ home detention.
Sentence
[63]Ms Johnson, would you please now stand.
[64] On the charge of attempted murder, I sentence you to a period of eight months’ home detention. That is to be served on the conditions of home detention set out in the PAC Report dated 11 December 2019, save that I remove the condition that you are to attend an assessment for an anti-violence programme. I further record, in relation to the condition of not contacting or associating with M, that it would be preferable that over time, and that with appropriate oversight and supervision, you have some contact with your son.
[65]You may now stand down.
Fitzgerald J
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