R v Johnston

[2013] NZHC 3359

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-078-1684 [2013] NZHC 3359

THE QUEEN

v

JUSTIN AMES JOHNSTON

Counsel:                  G Burston for the Crown

V Nisbet for Justin Johnston

Sentence:                 13 December 2013

SENTENCING REMARKS OF MALLON J

Introduction

[1]      Mr Johnston is for sentence on one charge of attempted sexual violation by unlawful sexual connection.1    He was convicted of that offence following a retrial before a jury.2  The maximum penalty for that offence is ten years’ imprisonment.

[2]      Mr Johnston was also found guilty at his first trial.   Before that conviction was quashed and the retrial ordered, the trial Judge, Kós J, sentenced Mr Johnston to preventive detention. The Crown asks that I impose that sentence today.

[3]      Mr Johnston is not present in Court.  I have dispensed with his appearance for reasons which will be noted.3

1      Crimes Act 1961, s 129(1).

2      The sentencing was adjourned at Mr Johnston’s request on a number of occasions.

3      Refer Minute.

R v JOHNSTON [2013] NZHC 3359 [13 December 2013]

Facts

[4]      The  circumstances  of  Mr Johnston’s  offending  are  as  follows.    On  the evening of 19 July 2010 Mr Johnston was found in the back garden of a house in Upper Hutt.  That house was occupied by a family.  The father in that family saw Mr Johnston when he went outside to get firewood.  Mr Johnston was crouching on the back lawn, looking in the direction of a sleep out which the 16 year old daughter in the family occupied.   The father chased after Mr Johnston through neighbours’

properties and initially caught him but he managed to wrestle free.4   The police were

called and a police officer and a police dog chased after Mr Johnston and eventually caught him.

[5]      The following evidence led at Mr Johnston’s trial gives background to this

incident:

(a)       In 1993 Mr Johnston raped a 26 year old woman in her home.    In

1994 Mr Johnston raped a 15 year old girl in her home.  Mr Johnston was released from imprisonment for this offending in August 2009.

(b)While  Mr Johnston  was  serving  his  sentence  of  imprisonment  he discussed with a fellow prisoner a plan to abduct and rape a 17 year old girl.  He made up a list of the items needed for this plan.  Included on the list was the name of the victim of the 1994 rape and a female Corrections psychologist who had recently assessed him.

(c)      Mr Johnston  was  subject  to  release  conditions,  which  expired  in February 2010.5     During this period he discussed with a man with whom he resided a desire and intention to rape an adolescent girl after

his parole conditions expired.

4      When the father caught Mr Johnston in a neighbouring property, Mr Johnston threatened the father with a small garden or barbecue fork.  This gave rise to a charge of threatening to do grievous bodily harm to which Mr Johnston pleaded guilty during his first trial.

5      Mr Johnston breached his parole conditions twice following his release in August 2009.  On 9

December 2009 he was found unlawfully in a yard (in breach of his curfew conditions).  He was charged, pleaded guilty and was sentenced to a sentence of imprisonment. Soon after his release from that sentence, on 31 March 2010, he again breached his curfew.

(d)A few months after the release conditions expired, there was evidence of Mr Johnston scoping out the Upper Hutt property where the present incident took place.   In the first week of June 2010 the 16 year old daughter had moved into a sleep out at the back of the property. There were blankets and towels being used for curtains in the sleep out at that stage, but these did not fully cover the windows of the sleep out.  At around this time an intruder was seen on a neighbour’s property.

(e)      As a result of the parents learning that the girl had on one evening gone to see friends without telling her parents, the 16 year old girl moved back into the main family house for a period after this.  She was then allowed back into the sleep out from 12 July 2010.  Over the next week, neighbours noticed Mr Johnston’s car was parked down the street from the property on around four occasions.

(f)      Also during this period a wheelibin full of the family’s rubbish was stolen (and has never been found) and in Mr Johnston’s residence there was a note with the name and number of the wheelibin company in his handwriting, suggesting that he had stolen the wheelibin in connection with his plans in relation to the 16 year old girl.

(g)On the night of 19 July 2010 Mr Johnston’s car was parked in the same area as it had been seen on the previous occasions by the neighbours. The back seat of the car was folded down.

(h)After Mr Johnston was apprehended, the police found six cigarette butts (which it was accepted were Mr Johnston’s) on the driveway by the fence between the victim’s property and a neighbour’s property, suggesting that Mr Johnston had stood there smoking and keeping watch on the house waiting for the 16 year old to leave the house and enter the sleep out.  Mr Johnston was found in the back yard by the 16 year old’s father soon after she had left the house and entered the sleep out.

[6]      Mr Johnston’s defence at trial was that he was on the property in order to steal items from the family’s  garage.   Mr Johnston has an extensive history of burglary offending and some other dishonesty offending and that history was before the jury.  The jury’s verdict means that they were satisfied beyond reasonable doubt that Mr Johnston was present on the property with the intent of sexually violating the

16 year old female occupant of the sleep out.   It follows that it was only by very good luck, arising from the father’s decision to get firewood at the moment that he did, that this did not occur.  The father’s brave actions in then giving chase assisted in Mr Johnston’s apprehension that night.

Impact of your offending

[7]      There is a victim impact statement from the father of the 16 year old victim. Although the intended crime was interrupted, it is plain that there have been both short and long term effects on the family.  They have felt unsafe and no longer able to live in their family home.

Previous convictions

[8]      Mr Johnston is 43 years old.   He has over 120 previous convictions dating back to when he was 14 years old.

[9]      Of particular relevance for today’s purposes are:

(a)      In June 1992 Mr Johnston was convicted of peeping and peering when he was found outside a property observing three girls.

(b)In June 1993 Mr Johnston broke into a house in Auckland by forcing a window to a spare bedroom.   He entered the 26  year old female complainant’s room.  She was sleeping.  He placed his hand over her mouth and threatened her with a knife.  After taping her hands and mouth, Mr Johnston raped her and indecently assaulted her over some hours.  He performed sexual acts on her and compelled her to perform sexual acts upon him.

(c)      In January 1994 Mr Johnston broke into a home in Auckland.   He battered, blindfolded and gagged a 15 year old girl and took her away in his car.  While still blindfolded, he raped her and carried out other sexual offences on her over a period of hours.  He drove her around the city still with her blindfold on until finally he released her.  She ran back to her home, terrified Mr Johnston was going to find her and kill her because that is what Mr Johnston said he would do.

[10]     Following  Mr Johnston’s  sentences  for  the  1993  and  1994  offending6   he remained in prison continuously between 1994 and 2009.  During his adult life he has not been at large in the community for more than 16 months at any one time.

Pre-sentence report

[11]     The sentencing remarks of Kós J set out the information in the pre-sentence report   that   was   before  him.     The  report   writer  considered   Mr   Johnston’s rehabilitation prospects to be “bleak”.  An updated pre-sentence report adds little to the report that was before Kós J.   Mr Johnston declined to participate fully in the interview because he believed that, as with the previous report, the current report was likely to be unfavourable to him.  The report notes that Mr Johnston maintains his innocence of the attempted sexual violation and he intends to appeal.  That has been  reiterated this  morning on  Mr Johnston’s  behalf.   Mr Johnston’s  denial  of offending  has  prevented  any  meaningful  treatment  being  effected  to  date.    He remains assessed as having a very high risk of reoffending, with that risk unlikely to diminish in the foreseeable future.

Section 88 reports

[12]     Prior  to  Mr Johnston’s  first  sentencing  reports  were  obtained  from  Mr Paramo, a Corrections psychologist, and Dr Judson, a psychiatrist.  Mr Paramo and Dr Judson were asked to update their reports for the purposes of this sentencing.  Mr Johnston declined to be interviewed for this purpose.   Mr Paramo was unable to

update the report due to an employment change.   His report was updated by Dr

6      In 1994 Mr Johnston was sentence to 12 years’ imprisonment in respect of the 1994 offending.

He was not convicted and sentenced on the 1993 offending until 2003, when he was sentenced to
six years’ imprisonment.

Haines,  another  Corrections  psychologist,  on  the  basis  of  information  on  Mr

Johnston’s file.

[13]     Dr Judson considers that Mr Johnston has a personality disorder of an anti- social or psychopathic type – a profile which is associated with a high likelihood of offending.   He considers that Mr Johnston’s established prior pattern of sexual offending involving entering the house of a stranger and subjecting a female to a prolonged sexual assault together with  Mr Johnston’s lack  of acceptance of his offending suggest that there “is a significant risk that such a pattern of behaviour

would be repeated”.7

[14]     Similarly, on the basis  of risk assessment tools used by Corrections,  Mr Paramo assesses Mr Johnston as being at a high risk of both offending generally and, more specifically, sexually.  This risk is said to be of serious harm to female victims vulnerable in their homes and that Mr Johnston’s pattern of reoffending is likely to be realised quickly after release from custody.  Mr Paramo noted that to that point Mr Johnston had not engaged in any psychological intervention that had been effective in reducing his risk.  He observed that Mr Johnston’s focus on proving his innocence and in perceived flaws with previous assessments was a barrier to Mr Johnston engaging meaningfully on any issues relevant to his risks.  Dr Haines came to similar conclusions as Mr Paramo in relation to Mr Johnston’s risk of reoffending and his suitability for treatment.

[15]     Mr Paramo and Dr Haines were required for cross examination and that took place on Monday of this week.8     In relation to Dr Haines, the cross examination focussed on concerns Mr Johnston had with two 2002 reports prepared by a Corrections psychologist for the Parole Board.  Mr Johnston’s concerns were about the psychologist’s experience, whether he gave informed consent and whether the report had been peer reviewed.   However, although these reports were part of the

information Dr Haines reviewed, they were not the only material he relied on.  He

7      View set out in first report.  Because Mr Johnston declined to be interviewed, Dr Judson was unable to add to his previous report, saying that his findings and conclusions remain unchanged.

8      Dr Judson was not required for cross examination.

referred to assessments under four risk assessment tools which were not dependent on the views expressed in the 2002 reports.9

[16]     In relation to Mr Paramo, the cross examination was focussed on two aspects. First there was cross examination about the failure of Mr Paramo to provide “protected communications” to Mr Johnston.10    Mr Johnston sought to review this before making a decision on whether to provide consent to Mr Paramo to access this information for the purposes of his report.  This meant that Mr Paramo did not have access to records of treatment sessions that Mr Johnston had undertaken nor could he speak to treatment providers about such sessions.   Secondly there was cross examination about information obtained from reports completed by a Corrections

psychologist in 2009 which Mr Johnston disputed.   These concerned an alleged fetish for women’s underwear and the sending of sexually charged letters to young women when Mr Johnston was in prison.

[17]     However Mr Paramo explained that neither of these matters impacted on his conclusions.   In relation to the static assessments there would be no change.   In relation to the dynamic assessments it was unlikely that there would be much of a difference.   As he explained, on some of the key measures, Mr Johnston’s scores were sufficiently high such that there would not be an overall impact on his assessment.

[18]     Mr Nisbet raises that the hearing on Monday shows that it is difficult to assess risk.  I accept that but here there are three experts.  Their views converge and

that view is one of Mr Johnston having a high risk of reoffending.

9      He explained that the two static risk assessments are automatically calculated on the basis of information inputted into the computer and did not involve any information obtained from interview with Mr Johnston.   One of the dynamic risk assessments was carried out by Mr Carlyon (ie a different person than the psychologist who completed the 2002 reports) and the other was carried out by Mr Paramo. These were reviewed by Dr Haines in forming his view.

10     Mr Paramo explained that this was direct information passed between Mr Johnston and a health professional for assessment and treatment purposes.  This information comes from case notes predominantly by health professionals.

Finite sentencing approach

[19]     I see no reason to disagree with Kós J, that if a finite sentence were imposed, a sentence of seven and a half years’ imprisonment would be appropriate.11    That finite sentence would reflect:

(a)      the aggravating factors  of the offending,  which  are premeditation, victim vulnerability, and intrusion into private property.  These factors put this into the upper end of band two of R v AM if the intended sexual violation had been carried out;12

(b)that would need to be moderated to account for the fact that the sexual violation was not completed.13    Comparing this offending with other cases indicates a starting point of around six years would be appropriate;14

(c)      a significant uplift would be appropriate for Mr Johnston’s previous relevant convictions and that this offending occurred within a short space of time after his release from imprisonment for that offending; and

(d)      that there are no personal mitigating features.

[20]     A minimum period of imprisonment at close to the maximum of two thirds of the end sentence would reflect the need for individual deterrence and public safety

considerations.15

11     No adjustment is necessary in relation to the threatening to do grievous bodily harm conviction which was not part of the retrial.  A concurrent sentence was passed for that offence although it was not explicitly taken into account in determining the starting point for the attempted sexual violation.

12     R v AM [2010] NZCA 114, [2010] 2 NZLR 750 is the guideline judgment for completed sexual violation.

13     A similar approach was taken in R v Taylor [2013] NZHC 3017. In R v M HC Auckland CRI-

2010-004-5197, 20 July 2010 Ellis J viewed the relevance of R v AM “with caution” (at [25]).

14     R v Keen [2010] NZCA 112 (starting point of six years adopted on Solicitor-General appeal); R v Owen [2012] NZHC 499 (starting point of six years); R v Hassan [1999] 1 NZLR 14 (CA) (end sentence of six years at upper end but not outside available range); R v Carter HC Napier CRI-

2010-041-163, 4 February 2011 (starting point of five years).

15     Sentencing Act 2002, s 86.

Preventive detention

[21]     The  criteria  for  a  preventive  detention  sentence  are  set  out  in  Kós  J’s

remarks.16   In respect of that criteria I note the following:

(a)      Mr Johnston’s criminal history discloses a pattern of serious offending as the report writers confirm.   The pattern is  of sexual offending involving entering the house of a stranger and subjecting a female to a prolonged and repeated sexual assault.   In his submissions Mr Johnston’s counsel refers to the length of time that Mr Johnston remained free of crime since his last qualifying offence, but I note that Mr Johnston has spent the majority of that time in prison.

(b)      Mr Johnston’s offending has caused serious harm to the community.

The offending is of a serious kind.  It is of sexual violence directed against  young  women,  who  are  targeted  within  their  own  homes where they are entitled to feel safe, and is of a kind which has lasting emotional and psychological impacts.17

(c)      As set out in the reports Mr Johnston’s reoffending risk is assessed as high and that the risk is of sexual offending that is likely to involve illegal entry onto private property and the kidnap and rape of adolescent and adult females and that risk is likely to materialise soon after release from prison.

(d)There  have  been  attempts  to  address  the  causes  of  Mr Johnston’s offending, but they have not been effective in reducing his risk of reoffending.   His rehabilitation has been hindered by his grievances with the Corrections psychologists in general and his denial of this offending and his denial of the circumstances of his previous sexual

offending.

16     Those criteria are set out in s 87 of the Sentencing Act 2002.

17     For example the  sentencing judge in respect of the 2003 rape described the effect of the offending on the victim as “catastrophic” and subsisting in a very real form a decade after the offending occurred.

(e)      A lengthy finite sentence is preferable if that would provide adequate protection for society.  There may be an issue as to the availability of an extended supervision order, but even if it were available on his release, Mr Johnston’s low motivation to address his behaviour, his distrust of psychological services and his demonstrated failure to comply with release conditions previously counts against him.

[22]     In light of these matters I am satisfied Mr Johnston is likely to commit another qualifying sexual offence if released at the expiry date of a finite sentence. Therefore, like Kós J, I am satisfied that preventive detention the only appropriate sentence. 18

Minimum period of imprisonment

[23]     In light of the risk Mr Johnston poses, I also agree with Kós J that the minimum period of imprisonment should be greater than five years,19 and should be set at six years.

Sentence

[24]     On the charge of attempted sexual violation by unlawful sexual connection Mr Johnston is sentenced to preventive detention.   The minimum period of imprisonment is six years.   Mr Johnston received a first strike warning from me when I entered his conviction.

Mallon J

18     Comparable cases where preventive detention sentences have been upheld are R v Atkinson CA537/99, 25 May 2000; Cant v R [2013] NZCA 513 and R v Simpson (1994) 12 CRNZ 155 (CA).

19     That is, above the five year minimum provided for in s 89 of the Sentencing Act, and above the minimum term I would have imposed if a finite sentence had been imposed. The finite sentence reflected that Mr Johnston was stopped from actually carrying out his intended offence.  That was by luck and so it is not an accurate reflection of his risk.