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…

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 [2013] NZHC 3359
Case: [2013] NZHC 3359
Decision Date: 13 December 2013

CaseChat Overview and Summary

The High Court of New Zealand considered the sentencing of Justin Ames Johnston for the offence of attempted sexual violation by unlawful sexual connection. Johnston was convicted following a retrial and the maximum penalty for this offence is ten years' imprisonment. The court was required to decide whether to impose a finite sentence or preventive detention. The latter was recommended by the Crown as Johnston had a history of serious sexual offending and a high risk of reoffending. The court considered the aggravating factors of the offence, Johnston's previous relevant convictions, and the lack of personal mitigating features.

Mallon J determined that preventive detention was the appropriate sentence due to the nature of Johnston's offending, the serious harm caused to the community, and the high risk of reoffending. The court accepted the expert opinions that Johnston had a bleak rehabilitation prospect and a high likelihood of reoffending. Johnston's denial of the offence and his grievances with psychological services further hindered his rehabilitation. Mallon J also agreed with the previous sentencing judge that the minimum period of imprisonment should be six years, considering the risk Johnston posed to the community.

The final orders of the court were as follows: Justin Ames Johnston was sentenced to preventive detention for the charge of attempted sexual violation by unlawful sexual connection. The minimum period of imprisonment was set at six years, and Johnston received a first strike warning from the court upon entering his conviction.

Orders