R v Johnston - [2012] NZHC 1568

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-009-002952 [2012] NZHC 1568

THE QUEEN

v

WARREN KENNETH JOHNSTON

Hearing: 4 July 2012

Counsel: K Bell for Crown
M Starling for Prisoner

Judgment: 4 July 2012

SENTENCING REMARKS OF LANG J

R V WARREN KENNETH JOHNSTON HC CHCH CRI-2012-009-002952 [4 July 2012]

[1] Mr Johnston, you appear for sentence today having pleaded guilty in the District Court to two charges of rape, one charge of doing an indecent act on a girl under 12 years of age, and two charges of inducing a girl under 12 years of age to do an indecent act on you.

[2] All of your offending occurred between 1978 and 1981. As a consequence, the maximum penalties for which Parliament made provision at that time were different to the penalties available today. On each of the charges of rape, you are liable to a maximum sentence of 14 years imprisonment. On the other charges you are liable to maximum sentences of ten years imprisonment.

Background

[3] Your offending occurred when you were between 30 and 34 years of age. You came to know your victim because you were friends with members of her family. She was eight years of age at that time. You visited the family and you took the opportunity during these occasions to become involved in sexual activity with the victim who was only eight years of age at the time the offending began. You subsequently moved in to live with her family after your relationship with your then partner came to an end.

[4] Over the next four years the offending developed markedly and took several forms. It involved touching and digital penetration of the victim’s genitalia. It also, on two occasions, developed into full acts of sexual intercourse. The victim, of course, was not in a position to consent and, as a consequence, you face two charges of rape in respect of those instances. There were severely degrading aspects to your behaviour. You had your victim provide you with oral sex. You would pleasure yourself to the point of ejaculating on her.

[5] I have had the benefit of hearing your victim read her victim impact statement in Court today, as have you. You have heard the very dramatic and severe effect that your offending has had on her. She does not trust men. Her education was affected. Although she is clearly a very intelligent person, she failed at an early stage in her school career. Her relationship with her family has been affected. She

has suffered severe depression. In short, your offending, which occurred over a lengthy period, has ruined her life and will no doubt have severe effects for her for many years to come.

Sentencing Act 2002

[6] In sentencing you, the principal factors that are to the forefront are the need to hold you accountable for your offending, the need to denounce it as completely unacceptable in a civilised society, and to impose a sentence that,…

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 1568
Case: [2012] NZHC 1568
Decision Date: 4 July 2012

CaseChat Overview and Summary

The defendant, Warren Kenneth Johnston, was convicted of multiple sexual offences against a young girl between 1978 and 1981. The case was heard in the High Court of New Zealand, Christchurch Registry. The legal issues before the court were to determine an appropriate starting point and end sentence for Johnston, considering his extensive criminal history, the nature and severity of the current offences, and the principle of totality.

The court was required to consider the starting point for sentencing, which was five years imprisonment, increased by two years due to the aggravating factors of multiple offences and the victim's vulnerability. The court also had to decide the end sentence, acknowledging that Johnston was already serving an indeterminate sentence of preventive detention. The court balanced the need to hold Johnston accountable and denounce his current offences while considering the impact of his lengthy criminal history and the totality principle, which aims to avoid excessive cumulative sentences.

The court decided that an appropriate starting point was five years three months imprisonment, reduced from the initial seven-year starting point due to Johnston's early guilty pleas. However, the court imposed a concurrent sentence of three years imprisonment on the lead charges of rape, considering the totality principle and the severe impact of the current offences. This decision ensured that Johnston would not face an effectively penalty-free sentence for his current charges, despite his existing preventive detention sentence. The court also sentenced Johnston to 18 months imprisonment on the other charges, to be served concurrently with all other sentences.

The final orders included a sentence of three years imprisonment on each of the charges of rape, to be served concurrently with each other and with Johnston's existing preventive detention sentence. Additionally, Johnston was sentenced to 18 months imprisonment on each of the other charges, also to be served concurrently with all other sentences.

Orders