R v Johnson CA221/03

[2003] NZCA 414

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA221/03

THE QUEEN

v

DARRYL NICHOLAS JOHNSON

Hearing:         22 September 2003

Coram:Anderson J Rodney Hansen J Salmon J

Appearances: C Muston for Appellant

M A Woolford for Crown

Judgment:      23 October 2003

JUDGMENT OF THE COURT

[1]      This is an appeal against a sentence of preventive detention imposed upon Mr Johnson after pleading guilty to two charges of sexual violation by rape, two charges of sexual violation by unlawful sexual connection, one charge of assault

with intent to commit sexual violation and one charge of indecent assault.

R V DARRYL NICHOLAS JOHNSON CA CA221/03 [23 October 2003]

[2]      In November 2002 the appellant was released on parole from a sentence of

18 months imprisonment imposed in December 2001 on a charge of assault with intent to injure.   Less than two weeks after his release, at about 2.00 a.m. in the morning, he was walking along a road in a state of intoxication when he noticed a young woman walking ahead of him.   He ran up behind her, knocked her to the ground and placed his hand up the victim’s skirt, grabbing her underwear and then her vagina.  She screamed for help and the appellant ran away.

[3]      Three weeks later, at about 3.30 a.m. the appellant, again in an intoxicated state, accosted another young woman, knocking her to the ground and raping her from behind.  When finished he stood behind the woman and requested a cigarette lighter.   He smoked a cigarette.   After that he sodomised the victim, fondled her breasts and inserted his fingers into her vagina.  Before he left he warned the victim not to complain to the police.

[4]      Two  months  later,  again  late  at  night  and  again  when  intoxicated,  the appellant approached another young woman walking along a road.  He knocked her off the footpath and down a steep grassy bank.  He kicked her and forced her to a location where they could not be seen.  He then ripped off her underwear, held her hands above her head and raped her repeatedly.  After finishing he walked away.

[5]      Each of the victims suffered physical injuries from the attacks.  In the case of the two rape victims the emotional and psychological effects have been dire, and the lives of each have been seriously affected.

[6]      After arrest the appellant pleaded guilty at an early stage to all charges.

The sentencing notes

[7]      The High Court Judge correctly identified the issue before him as being whether  the  appellant  should  be  sentenced  to  a  finite  term  of  imprisonment  or whether a sentence of preventive detention should be imposed.   He addressed the

question of a finite term.  He noted that each of the incidents was separated by time, place and circumstance and that he was required to consider the totality or overall effect of the offending.  He was satisfied that a starting point for a total sentence of not less than 25 years would be appropriate, before allowing for mitigation and that taking the pleas of guilty into account that term would be reduced to 20 years.  He then went on to record that if he were to impose a finite sentence of imprisonment a minimum non parole period of two-thirds or 12 ½ years would be appropriate on the basis of R v Brown [2002] 3 NZLR 670, but noted that s86(4) of the Sentencing Act

2002 provided that the minimum term of imprisonment which can be imposed on a finite sentence cannot exceed ten years.

[8]      The Judge then considered a sentence of preventive detention and carefully analysed the statutory prerequisites and criteria set out in ss87 and 88 of the Sentencing Act.   He noted the five factors which s87(4) requires to be taken into account  –  the  pattern  of  serious  offending,  the  seriousness  of  harm  to  the community, information indicating a tendency to commit serious offences in the future, the absence of or failure of efforts by the offender to address the cause or causes of the offending and finally, the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[9]      He was satisfied that the appellant was likely to commit another qualifying sexual or violent offence if released after serving an appropriate finite sentence and in the exercise of his discretion, after taking into account all the above factors, imposed a sentence of preventive detention.

[10]     The Judge was then required by s89 of the Act to order that the offender serve a minimum period of imprisonment of not less than five years.   He decided that a minimum term of 15 years imprisonment was appropriate.

[11]     The Judge revisited the question of minimum sentence.   In a minute of 14

July 2003 he acknowledged that he had not given credit for the appellant’s  guilty plea when determining the appropriate length of a minimum term.   In a further minute of 15 September 2003 he recorded that had it not been for the fact that he was functus officio he would have reduced the minimum term to 12 years on that basis.

[12]     Mr  Muston,  for  the  appellant,  submitted  that  a  sentence  of  preventive detention should not have been imposed.   He submitted that the sentencing Judge could not (as required by s87(2)(c)) have been reasonably satisfied that the appellant was likely to commit another qualifying offence upon release from what he acknowledged must be a lengthy term of imprisonment.  Counsel carefully analysed the provisions of s87 and submitted that in the absence of evidence from the health professionals to the effect that further offending was likely upon release the Judge was not entitled to reach the conclusion he did.  He submitted too that the Judge had not given any weight to the principle that a lengthy determinate sentence is to be preferred if it provides adequate protection for society.  He submitted that there was no evidence that the appellant would not respond to treatment within the term of a finite sentence, nor was there evidence about the programmes that might be available to the prisoner.

[13]     As to the minimum term, counsel submitted that the starting point for the notional finite term was manifestly excessive.   He submitted that an appropriate finite sentence would be 12 years and that there should be a discount for early guilty pleas of up to one-third.  He then submitted that the appropriate minimum period of imprisonment to reflect the gravity of the offence would be between five and eight years.

Consideration

[14]     We do not accept Mr Muston’s submission that preventive detention was inappropriate in this case.  Indeed, we consider the circumstances of this offending made  such  a  sentence  inevitable.    As  Mr  Woolford  for  the  Crown  said,  the appellant’s offending has increased in severity and frequency over the years from

1998.  In August of that year he was sentenced on a charge of indecent assault to imprisonment for eight months, to be followed by one year’s supervision.   Whilst under  that  supervision  he  was  again  convicted  of  indecent  assault  and  was imprisoned for one year and seven months.  He was sentenced on that occasion by

District Court Judge Clapham.  The nature of the offending was such that the Judge drew to the attention of the Parole Board that he regarded the appellant as at an extremely high risk for re-offending and that it was imperative that any counselling directed by the Parole Board should be enforced.

[15]     He was released from his term of imprisonment on 1 March 2000 and six months later he was convicted of assault with intent to injure and two charges of assault on a child.  The child was his partner’s nine year old son.

[16]     As outlined above, the first of the offences under consideration at present was committed within two weeks of release from the sentence imposed for the assaults. The three separate incidents which are the subject of this appeal were each more serious than the one proceeding.

[17]     Contrary to the submissions of Mr Muston, the reports of the psychiatrist and psychologist give considerable cause for concern.  The consultant psychiatrist notes that the appellant will probably require one-to-one work with a suitably qualified professional to deal with his sexual offending, but that the major risk factor for the appellant’s offending is alcohol.  He noted that it will be necessary for the appellant to address his alcohol abuse and its underlying causes.   He also records that the appellant abstained for a four year period after attending the Salvation Army Rehabilitative Programme on Rotoroa Island, but relapsed under a number of stressors.

[18]     The report from the psychologist goes into more detail.   She describes the appellant’s personality structure as borderline personality disorder with anti-social features.  She sets out historical risk factors and clinical risk factors.  She concludes:

It appears that Mr Johnson’s violent and sexually violent offending is rooted in his intra-psychic conflicts and resulting inability to deal with emotions or stress and to negotiate and resolve problems.  His offending history shows that he further adds to his problems by taking substances, which lower his inhibitions and thus pave the way for violent expressions of his anger, rage and frustrations.   Though Mr Johnson knows these effects he nevertheless engages in substance abuse.

Given that Mr Johnson’s offending is closely linked with his personality structure and functioning, it is clear that he would continue to engage in such

behaviour   unless   these   underlying   difficulties   are   comprehensively addressed.     Mr  Johnson  has,  in  the  past,  demonstrated  interest  and motivation to do so and continues to be motivated for such work.  It would appear  that  some   of   this  could   be   done   while   he  is  incarcerated. Programmes regarding understanding sexual and violent offending are available.  Also substance abuse treatment could begin during incarceration. However, such interventions would need to be complemented by other psychotherapeutic interventions focused on re-working traumatic issues and establishing more functional coping strategies.   Such treatment is not commonly available in the correctional context.  Mr Johnson would have to engage in treatment long after he was released from incarceration.  Given Mr Johnson’s obvious need for structure, such treatment would have to occur in the context of highly structured and supervised probation arrangements.

[19]     The judgment which s87 requires to be made is for the Court, not for the experts who present reports to the Court.  That judgment is made on the basis of all the information before the Court including the expert reports and those matters listed in subs(4).

[20]     Given the information before him the Judge was justified in concluding that the appellant was likely to commit another qualifying sexual or violent offence upon release, even from a lengthy term of imprisonment, and that the safety of the public required the imposition of a sentence of preventive detention.

The minimum period of imprisonment

[21]     Section 89 of the Sentencing Act provides:

89       Imposition of minimum period of imprisonment

(1)       If a court sentences an offender to preventive detention, it must also order that the offender serve a minimum period of imprisonment, which in no case may be less than 5 years.

(2)       The minimum period of imprisonment imposed under this section must be the longer of—

(a)       the minimum period of imprisonment required to reflect the gravity of the offence; or

(b)       the  minimum  period  of  imprisonment  required  for  the purposes of the safety of the community in the light of the offender's age and the risk posed by the offender to that safety at the time of sentencing.

(3)      For the purposes of Part 13 of the Crimes Act 1961, an order under subsection (1) is a sentence.

[22]     The starting point for the implementation of the requirements of s89 is to consider the purpose of preventive detention.  Preventive detention is a sentence with a specifically protective purpose.   It may only be invoked for protective reasons. The purpose is clear from a consideration of the provisions of s87.  Subsection (1) provides:

The purpose of preventive detention is to protect the community from those who pose a significant and on-going risk to the safety of its members.

Paragraph (c) of subs(2) requires the Court to be satisfied before imposing such a sentence, that the person is likely to commit another qualifying offence on release from a finite sentence.  Clause (e) of subs(4) requires the Court to take into account the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[23]     The wording of subs(2)(a) of s89 mirrors the wording of the first of the principles of sentencing set out in s8.  That requires the Court to take into account “the gravity of the offending in the particular case…”.

[24]     Because preventive detention  is  protective,  not  punitive  in  intent,  s89  is necessary to provide punishment for an offence where the period required for that purpose is longer than the minimum of five years provided for by subs(1).

[25]     If it were not for the requirement of public protection which warrants the imposition of preventive detention, the gravity of the offence would be marked by a finite maximum sentence and, under s86, by a specified minimum term.  There may be cases  where  it  would  be  appropriate  to  assess  the  gravity of  the  offence  in preventive detention cases by adopting an analogous method.   The analogue of a finite term presents a familiar means of assessing aggravating and mitigating features in which latter respect, of course, the incentive of credit for guilty pleas has a strong policy justification.

[26]     It would seem contrary to the intent of the Sentencing Act and indeed, of the Parole  Act,  for  the  inherent  but  unintended  punitive  effect  of  a  sentence  of preventive detention to inform perceptions of the gravity of the offence to such an extent that a longer minimum term might be imposed under s89(2)(a) than would be the case if a finite term of imprisonment had been imposed.   Considerations of public safety inform  the  questions  both  whether  preventive  detention  should  be imposed and, pursuant to s89(2)(b) the length of a minimum term appropriate for reasons, not of gravity, but of safety.

[27]     But the absence of any upper limit for a minimum term imposed in relation to indefinite  sentences  is  plainly  a  matter  of  deliberate  legislative  intent.     The legislature clearly envisaged that some offences which warrant a sentence of preventive detention might be so grave as to take them outside the ten year cap which applies in respect of minimum terms imposed in relation to finite sentences.

[28]     How then is the gravity to be assessed for the purposes of the minimum term in the context of a sentencing regime which fixes a lower limit of five years but, jurisdictionally at least, permits a minimum term exceeding any human life-span?  In the absence of a principled evaluation of gravity there may be a risk of the law being applied simply arbitrarily.

[29]     Matters which might be taken into account were discussed by this Court in R

v C [2003] 1 NZLR 30 at para [26] in the following terms:

[26]     The familiar technique of a starting point reflecting all other factors but the plea is appropriate in this context as well as in fixing the length of determinate sentences. The focus of the first step involved in fixing the minimum period of imprisonment under para (a) of s 89(2), is to reflect the gravity of the offence at a sufficient level to punish, denounce and deter, bringing to account all relevant sentencing considerations bearing on those issues, save the public protection dimension which is the focus of para (b) of s  89(2).  The  present  offending  was  particularly  bad.  It  was  long  and sustained; it commenced when the appellant’s daughter was only just four; it constituted a gross breach of trust; it involved a variety of sexual abuse including one  incident  of  rape.  Overall  this  offending deserved  condign punishment   and   substantial   denunciation.   A   substantial   element   of deterrence was also appropriate. There is little, if anything, to mitigate the offending, except the appellant’s immediate acknowledgement of full responsibility and his very early pleas of guilty. …

[30]     But it may be helpful to consider that for the purposes of the imposition of a minimum term of imprisonment offences could be evaluated in three ways.   First, there will be those offences where the risks to public safety can adequately be met and the gravity of the offence can adequately be marked by a finite sentence with a minimum term of up to two-thirds but not exceeding ten  years.   Second, those offences where the gravity of the offence could adequately be marked by a finite sentence and a minimum term of up to ten years, that is by a finite sentence of up to

15 years imprisonment, but the risk warrants a sentence of preventive detention particularly because of the feature of amenability to recall and the other management implications of such a sentence.   Third, those offences where the risk warrants preventive detention and either because of the degree of risk or the gravity of the offence, a ten year minimum term would be inadequate.  It is particularly in relation to this category that difficulties of principled assessment of gravity arise.

[31]     When contemplating, in a case requiring preventive detention, whether a minimum term exceeding five years is required, a method which is not entirely subjective or arbitrary might be to consider what finite term may have been appropriate after taking into account all relevant aggravating and mitigating factors and  then,  having  regard  to  the  gravity  of  the  offence,  what  the  period  of  the minimum term might properly be in relation to the possible finite term.

[32]     We deliberately refrain from indicating a too prescriptive approach for at least two reasons.  First, sentencing is a matter of judgment and experience.  Second, there have been and will be cases of such gravity as to render inapt any assessment by analogy to a notional finite sentence.  Such cases will compel evaluation mainly by reference to their own extreme features.   The crucial point to bear in mind, however, is that the sentence of preventive detention does not, of itself, require a minimum term of imprisonment exceeding five years.  Whether and to what extent that five year minimum should be exceeded depends on the matters referred to in sub-paragraphs (a) and (b) of s89(2), with the gravity issue raised in sub-paragraph (a) being informed by, but not dictated by, the finite term analogy discussed in para [31] above.

The application of the principles to this case

[33]     We have already referred to the sentencing Judge’s view of an appropriate finite sentence.   Our research suggests that a sentence of 25 years would be inconsistent with other finite sentences imposed for serious sexual offending.  In R v Mahoni [1998] 15 CRNZ 428 this Court commented that a 20 years starting point could not be criticised in that case. That was in the context of offences by a gang, including three of sexual violation and charges of aggravated robbery.

[34]     In R v Kolio (CA219/01, 24 October 2001), the Court took a starting point of

17 years in a case which involved four charges of rape, three of sexual violation by unlawful sexual connection and other offending against a step-daughter. The rape charges were representative and the unchallenged statement of facts disclosed that the appellant had raped the victim on at least ten occasions during an 11 month period.

[35]     In  R  v  Narayan  (CA395/01,  22  April  2002)  a  sentence  of  preventive detention was replaced by one of 15 years imprisonment.  In that case Narayan had been convicted after trial on one count of rape, four counts of sexual violation by unlawful sexual connection, one count of attempted sexual violation and two counts of aggravated  robbery relating to  two  complainants.    There were no  mitigating factors.

[36]    The starting point for rape as the authorities demonstrate is eight years imprisonment.     The  seriously  aggravating  features  in  this  case  including  the repetition of attacks, offending whilst on parole and a previous history of offending undeterred by penal responses, require a substantial increase from that point.   If a finite term of imprisonment could be contemplated in this case it would be in the vicinity of 19 or 20 years, subject to allowance for the prompt pleas of guilty which would justify a reduction to about 15 years.  In the circumstances of this case such a finite sentence would attract the maximum non parole period of ten years.  That is not determinative, obviously, of the appropriate range in respect of the sentence of preventive  detention.    We  think  that  the  minimum  term  of  15  years,  actually imposed, being equivalent to what would be an appropriately long finite sentence, is

too high.  The circumstances of the offence are, however, very grave, involving a high degree of culpability not only by reason of the brutal nature of the attacks themselves but also by reason of their frequency and the parole context.  In our view the minimum term required to reflect that gravity is 11 years imprisonment.

[37]     Turning then to the question whether a greater period of imprisonment would be required under paragraph (b) of s89, we take the view that 11 years minimum is sufficient in this case for the purposes of the safety of the community.

[38]     Accordingly, the appeal is allowed to the extent that the order for a minimum term of 15 years imprisonment is quashed and there is substituted an order for a minimum term of 11 years imprisonment.

Solicitors:

Thorne, Dallas and Partners, Whangarei for Appellant

Crown Solicitor, Auckland