[1] The respondent, David Michael Johnson, pleaded guilty to seven counts of sexual conduct with a young person. On 27 November 2009, he was sentenced in the District Court at Christchurch by Judge Doherty to 9 months’ home detention. The Solicitor-General seeks leave to appeal against that sentence.
The offending
[2] At the time of the offending Mr Johnson was 36 years old. The complainant was 15. She had at one time had a relationship with a relative of Mr Johnson, which is how he came to know her.
[3] In December 2007, Mr Johnson and the complainant began ringing and texting each other about having sex. In January 2008, Mr Johnson called the complainant sounding distressed. He told the complainant that he needed to speak with her urgently. Fearing that something may have happened, the complainant went to the respondent’s house. Once there Mr Johnson asked the complainant if she wanted to have sex with him. The complainant declined, but eventually texted Mr Johnson and agreed to have sex with him. Sexual intercourse occurred on her second visit. She described the sex as rough and demeaning.
[4] Shortly after this Mr Johnson and the complainant were in contact by telephone. It was agreed that she would be picked up from her house. She climbed out of her bedroom window and was picked up by Mr Johnson, who drove her back to his house. He asked her to undress and performed oral sex on her. He used a vibrator, which he inserted into the complainant’s vagina. She did not like this as it caused her pain.
[5] From this point until April 2008, the complainant and respondent had a considerable amount of contact when sex occurred. He would pick her up from the house at night and take her to a local reserve where sexual acts took place in his car. She also went to his home on a number of occasions where sex occurred. On one occasion in the car the sexual contact developed into anal intercourse, which the complainant disliked and described as painful. Mr Johnson did not recall that incident, which he ascribed to either intoxication, or it being brief and unintentional.
[6] One occasion illustrates the dominating and demeaning nature of the relationship. Mr Johnson took the complainant to his brother-in-law’s home. Sexual intercourse took place and the complainant was required to clean up a semen…
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.
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Details
AGLC
R v Johnson [2010] NZCA 168
Case
[2010] NZCA 168
Decision Date
CaseChat Overview and Summary
The case of R v Johnson involves an appeal by the Solicitor-General against the sentence imposed on David Michael Johnson, who pleaded guilty to seven counts of sexual conduct with a young person. The District Court sentenced Johnson to nine months of home detention, which the Solicitor-General deemed manifestly inadequate. The Court of Appeal agreed and substituted the sentence with 12 months of home detention.
The legal issues before the Court of Appeal were whether the starting point for sentencing was correctly assessed, whether the appropriate discounts for the guilty plea and for remorse were applied, and whether the sentence of home detention was appropriate given the nature of the offending.
The Court of Appeal found that the starting point should have been three years and nine months' imprisonment, taking into account factors such as the age disparity, frequency of the sexual contact, and the demeaning nature of the offending. The Court also found that the discount for remorse and the payment of $10,000 to the complainant should not have been considered together with the discount for the guilty plea. The Court concluded that the minimum sentence should have been two years and four months' imprisonment, but that it would be harsh to impose a custodial sentence given that Johnson had already served over half of the sentence in home detention. Therefore, the sentence was substituted with 12 months of home detention.