R v Johnson - [2020] NZHC 169

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…

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 R v Johnson

Details

AGLC: R v Johnson [2020] NZHC 169
Case: [2020] NZHC 169
Decision Date: 14 February 2020

CaseChat Overview and Summary

The case of R v Johnson involved a mother who was found guilty of the attempted murder of her son, who suffered from multiple disabilities. The court had to consider the unique circumstances of the case, including the mother's disturbed mental state and the pressures she faced in caring for her son. The legal issues included determining an appropriate starting point for the sentence, considering aggravating and mitigating factors, and deciding on a sentence that would balance the needs for accountability, denunciation, deterrence, and rehabilitation. The court decided on a starting point of two and a half years' imprisonment, but ultimately sentenced the mother to eight months' home detention, taking into account her low moral culpability, remorse, and the time she spent on strict electronically monitored bail. The court also noted the possibility of future supervised contact with her son.

Orders