R v Johnston - [2012] NZHC 387

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2011-002-0175 [2012] NZHC 387

THE QUEEN

v

WARREN BRUCE JOHNSTON

Hearing: 9 March 2012

Appearances: R P Bates for the Crown
A Stevens for the prisoner

Sentence: 9 March 2012

SENTENCING NOTES OF CLIFFORD J

[1] Mr Johnston, you appear for sentence today having pleaded guilty to the murder of Lesley Ann Johnston, your wife of 43 years, at the family home in Roxburgh on 11 March 2011, just two days short of a year ago today.

[2] I will first explain to you, Mr Johnston, and to all here in Court, the decisions I must make to determine your sentence. But before doing so, I do acknowledge the presence in Court today of your and Lesley’s son Owen and his wife Jo-Anne, together with other members of your and Lesley’s wider families and friends. I will refer later in my sentencing remarks to the victim impact statements that Owen and Jo-Anne have read out, to the victim impact statements provided by other members of Lesley’s family and her friends and to a range of other material that has been put before me – including a letter to the Court from your sister Beverley and your own
letter to your son and daughter-in-law.

R V JOHNSTON HC DUN CRI-2011-002-0175 [9 March 2012]

[3] But I say at once that the events which have brought you all here today are –

without doubt – a tragedy.

[4] Now, the decisions I must make: where – as here – a person has been convicted of murder, the Court is required to impose a sentence of life imprisonment, unless such a sentence would be manifestly unjust. A person sentenced to life imprisonment must serve a minimum term of 10 years. They are then eligible to apply for parole. Eligibility to apply for parole does not mean that a person will automatically be released. The Parole Board is required to consider the safety of the community and whether the convicted person would pose an undue risk upon release. Even when released on parole, a person sentenced to life imprisonment remains subject to that sentence for the rest of their life, and may be recalled to prison. By contrast, a person sentenced to a finite term of imprisonment must serve a minimum period in prison of one third of that term. Moreover, once the finite term has expired, the person is no longer subject to recall

[5] So there is a big difference between a sentence of life imprisonment and a sentence of imprisonment for a finite term. Although, as Mrs Stevens’ has submitted, given Mr Johnston’s age and health conditions, some of those considerations may be academic, to use a not very appropriate term, nevertheless the difference between the two terms and the significance of life imprisonment for murder is the background to the law that I must apply today.

[6] On your behalf, Mr Johnston, Mrs Stevens has submitted that a life sentence would…

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 Johnston

Details

AGLC: R v Johnston [2012] NZHC 387
Case: [2012] NZHC 387
Decision Date: 9 March 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the defendant Warren Bruce Johnston was sentenced for the murder of his wife, Lesley Ann Johnston, who he killed at their family home in Roxburgh. The defendant, aged 67, pleaded guilty to the murder, which occurred on 11 March 2011, just two days short of a year after the victim had told him she was leaving him. The court had to determine whether a sentence of life imprisonment would be manifestly unjust, given the defendant's age, health conditions, and the circumstances of the offence. The defendant's counsel argued that a life sentence would be manifestly unjust, given the defendant's untreated depression and cancer diagnosis at the time of the murder, as well as his current health circumstances. The Crown, however, argued that the circumstances of the killing did not warrant a departure from the presumption of life imprisonment for murder.

The court considered the defendant's age, health conditions, and the circumstances of the offence, including his premeditation and the callous disregard he showed for his wife by shooting her twice in the back as she ran away. The court accepted that the defendant was suffering from the ongoing impact of his daughter's death, as well as the stress caused by his wife's decision to leave him, his cancer diagnosis, and the prospect of facing cancer on his own. However, the court found that these factors, when taken either alone or in combination, did not mean that the imposition of a sentence of life imprisonment would be manifestly unjust. The court sentenced the defendant to life imprisonment with a minimum term of 10 years before being eligible to apply for parole.

Orders