R v Johnston

[2012] NZHC 780

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS AND THEIR ADDRESS PURSUANT TO S 139 CRIMINAL JUSTICE ACT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-085-001917 [2012] NZHC 780

THE QUEEN

v

JUSTIN AMES JOHNSTON

Counsel:         G J Burston for Crown

J Bonifant for Prisoner

Sentence:       26 April 2012

SENTENCING BY THE HON JUSTICE KÓS

Introduction

[1]      I will commence this sentencing by recording that Mr Johnson, by reason of his misconduct in the dock this afternoon, has been removed from the dock.  He has elected not to return.  For that reason and for that reason alone this sentencing will be expressed in the third person.   It goes without saying what has occurred has no impact on the sentence of the Court in relation to those matters for which he was convicted.

[2]      Mr Johnston appeared for sentence today having in December been found guilty by a jury of one charge of attempted sexual violation by unlawful sexual

R v JOHNSTON HC WN CRI-2011-085-001917 [26 April 2012]

connection, and a second charge of threatening to do grievous bodily harm.   The maximum penalties for these offences are ten and seven years’ imprisonment respectively.

[3]      In terms of the Sentencing Act 2002, issues of deterrence, denunciation and the need to hold the offender accountable are prominent considerations in a case of this type.  Those who commit serious sexual crimes must appreciate that when their offending  is  detected  and  proven,  serious  consequences  will  follow.    Another essential consideration, emphasised by defence counsel, is the need to assist the offender’s rehabilitation and reintegration to the community.  I will have more to say about that in due course.

[4]      As  Mr  Johnston  no  doubt  appreciates,  the  key  issue  I  must  consider  in sentencing him is whether I should impose an indeterminate sentence of preventive detention, or whether as defence counsel contends, a lengthy finite sentence (which may then be subject to a post-release extended supervision order) will be sufficient to reflect the sentencing principles I have just referred to, and to protect the community.

[5]      After consideration of this case and the submissions made to me, particularly by defence counsel, I have reached the conclusion that the only sentence properly available to this Court is one of preventive detention.  That will be the sentence of this  Court  in  due  course.    But  I  shall  first  explain  how  I  have  reached  that conclusion.

Facts

[6]      I start with the facts of the current offending.  On the evening of 19 July 2010

Mr Johnston was found in the back garden of a house in Upper Hutt.   To have reached that point he had walked past an open garage, lit by a sensor light, past the house and on to the back lawn.   At that point he tripped a second security light sensor.  Unfortunately for him, the male occupant of the house had just gone outside to obtain fire wood.  He saw Mr Johnston.

[7]      The evidence for the Crown (accepted by the jury) was that Mr Johnston was crouching on the back lawn, dressed in dark clothing with gloves and a torch.  He was looking in the direction of a sleep-out, in which resided the occupant’s daughter. She was then aged 16.  The male occupant gave chase.  He caught Mr Johnston and wrestled him to the ground in an adjoining property.   At that point Mr Johnston managed to regain sufficient freedom to grasp a small garden or barbecue fork (which one is immaterial) belonging to the neighbour.  He threatened the occupant with violence unless he let him go.  On day four of trial, Mr Johnston pleaded guilty to the charge of threatening to do grievous bodily harm.  He continued to contest the attempted sexual violation charge.

[8]      There was evidence that he had reconnoitred the victim’s property in Upper Hutt from early June 2010 until immediately prior to the incident on 19 July 2010. A car similar to his was seen outside a neighbour’s property on four or five occasions. There was unchallenged evidence that the neighbour saw the car there on 14 July

2010 at least.  In addition six cigarette butts (which it is accepted are Mr Johnston’s) were found by the fence between the victim’s property and their neighbours.  The Crown suggested, and I accept, that Mr Johnston had had the property under observation for some time.

[9]      The defence offered – that Mr Johnston was in the grounds to commit an opportunist burglary – was one that the jury was virtually bound to reject.  He had walked past a visibly wide open garage crammed with valuable items.  He was found in the back garden where there were no such valuables.   The evidence of his reconnoitring the area between June and 19 July 2010 was also inconsistent with the defence  of  opportunistic  burglary.    In  the  s  88  reports,  which  I  refer  to  later, Mr Johnston has enlarged this justification.  He claims that he was in the street to meet a friend, A, who did not turn up, and that he entered the property to get away from a gang member known to him who did, unexpectedly, turn up.  But I note that none of this story was given in the police interview with Detective Constable Smith.

[10]     The jury concluded that there was no reasonable doubt that he was present in the property with the intent of sexually violating the 16 year old female occupant of

the sleep-out.   It follows that is only by very good luck on her part that a vicious sexual assault was averted.

[11]     A disturbing aspect of the evidence heard by the jury was discussions that Mr Johnston had with two other men, Mr Anderson and Mr Braddock.  In the case of Mr Anderson, he and Mr Johnston were prisoners together in Paremoremo.  In 2006

Mr Johnston and Mr Anderson (although the latter appeared to play a lesser role) hatched a plan to kidnap and rape a particular 16 year old school girl following Mr Johnston’s release in 2009.  A handwritten note by Mr Johnston of preparatory steps for that activity was produced in evidence.  Disturbingly there were two names on the list, one of which was the 15 year old victim of a rape that he committed in

1994.  I will return to that conviction in a moment.

[12]     As to the other man, Braddock, discussions with him occurred in November and December 2009, following Mr Johnston’s release from prison.   The two cohabitated in a half way house in Lower Hutt.  Mr Braddock gave evidence of a plan developed by Mr Johnston to kidnap and rape a teenage girl aged 14-15 years, once he came off parole in February 2010.

Impact of your offending

[13]     I turn now to the impact of the offending in this case.  I have read the victim impact statement of the male occupant of the home.   He was the victim of the grievous bodily harm threat to which charge Mr Johnston pleaded guilty at trial. And he is the father of the  16  year old  female victim  of the attempted sexual violation charge.

[14]     It is proper that I focus on the impact of the far more serious crime, that against the female victim.  In doing so I acknowledge that because Mr Johnston was interrupted, the female victim was spared any form of direct physical attack.  She did not see Mr Johnston at all on the property.  But she did hear her father calling for help from the neighbour’s property, where he had Mr Johnston in restraint.

[15]     Despite that fact that the intended crime was interrupted, it is plain that Mr Johnston’s  actions  have  had  a  profound  psychological  effect  on  the  female victim, and also on the whole family.  The victim will no longer sleep in the sleep- out, which had been built for her use.  Her father states that his children will not go anywhere by themselves without being accompanied by another person.  They feel unsafe walking alone to the train station or bus stop.   More stringent safety rules have been adopted by the family. The father says:

While I have tried to shelter the girls from knowing why the accused was on our property, they may have heard my wife and I talking about it, seen media reports and have observed first hand changes in our lifestyle because of this crime.  I feel sad about all of this because I believe that my girls have been robbed of their innocence.  They know this was a sexually motivated crime and as a result must have thought about the potential consequences.

[16]     The father also says:

The long term emotional effects are that my wife and children don’t like our house anymore, or the area we live in.  They feel vulnerable and unsafe and have since moved out.

[17]     Counter-intuitively, but understandably, he says:

While I know I have saved my daughter from the dire consequence of the actual crime the accused intended to commit, I feel that I have failed in my role as a father in preventing this from happening at all.

I want to say that nothing that the father could have done before the evening of

19 July 2010 would have forestalled Mr Johnston’s intrusion into the life of this family.    The  father’s  actions  on  the  night,  when  he  apprehended  Mr  Johnston, showed great presence of mind and great courage.  He is to be commended for those actions and should not feel for one moment that he has failed his daughter.  Quite the contrary is the case.

Prior offending

[18]     I turn now to the prior relevant offending.  I mention these matters because, although Mr Johnston is not being resentenced here for crimes committed and sentenced in the past, they are material in two respects.  First, to the final level of

any finite term of imprisonment, had I imposed such a sentence.   Secondly, as to whether the sentence should, rather, be preventive detention.

[19]     In June 1993 Mr Johnston went to a house in Auckland.  He was dressed in dark clothing, gloves and a balaclava.  He broke into the house 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, he raped her and indecently assaulted her over some hours.   He performed sexual acts on her and he compelled her to perform sexual acts upon him. Although he was interviewed as a suspect in November 1993, no charges were laid against him.  Only as a result of improved DNA technology was his culpability determined.  Charges were laid in relation to the 1993 rape in 2002 and he pleaded guilty to them in June 2003.  Justice Priestly described the effect of his offending on that first victim as “catastrophic”.  The effects of his crimes on her were still retained in very real form a decade after his actions when that case came to Court.

[20]     Second in criminal chronology, but first in terms of sentence, was a second rape committed in January 1994.  Just two months after being interviewed for the

1993 crime.   Mr Johnston broke into a home in Auckland, intending to steal a computer.  I quote now from the sentencing notes of Hillyer J on 5 October 1994:

Having broken into that home, a 15 year old girl was then battered, blindfolded, her mouth gagged and ... taken away into a car and for a period of hours suffered serious and horrifying sexual abuse.   Blindfolded all the time, she was raped and other sexual offences were committed on her.  She was driven around the city still with the blindfold on her until finally she was released and ran back to her home, terrified that this man was going to seek her out again and kill her, because that is what he said he would do. Mercifully he was caught. A fingerprint was an important factor in his arrest and he then came to Court.  He pleaded not guilty, as a result of which the young woman had to live through again the trauma of that awful night.  He then said that she wanted him to do it and that she thought it was more exotic and sexy to have intercourse while she was blindfolded.

[21]     The jury in that case did not believe Mr Johnson, and he was convicted of four charges of sexual violation, one charge of threatening to kill, one of abduction and other charges.  Justice Hillyer sentenced Mr Johnston to a term of imprisonment of 12 years.  It was while he was serving that sentence that he was then sentenced on

the earlier 1993 rape.  The result was that he has remained in prison continuously between 1994 and 2009.

[22]     Remarkably, but very relevantly to the issue of whether the sentence in this case should be preventive detention, he continues to maintain his innocence of both prior offences.  The s 88 reports, which I am about to turn to, record that he claims that the 1993 rape was committed instead by another man with whom he entered the house for burglary offence purposes. A man who, conveniently perhaps, had died by the time he pleaded guilty to that offence in 2003. And he continues to maintain that the sexual activity in the 1994 rape was initiated by the 15 year old victim, albeit he admits having kidnapped her.  I will have more to say about this.

[23]     Even apart from these two principal crimes Mr Johnston has a grim criminal record.   From the age of 14 he became a criminal.   He has been convicted of in excess of 120 offences, including multiple convictions for burglary, since 1984 when he was14 years of age.   Since youth he has not been at liberty for more than 16 months at any one time.

Pre-sentence report

[24]     The  pre-sentence  report   prepared   by  the  Department   of  Corrections’ probation  officer  makes  sad  reading.     It  starts  as  it  must  by  recording  that Mr Johnston’s   reintegration   into   the   community   after   serving   15½   years’ imprisonment was deeply troublesome.  It is clear from all I have read that attempts to reintegrate into the community by staying with an older sister (who stood by him on his release) was wrecked by the hostile reaction of the community and the media. While that reaction is to be deprecated, what is worse is that his subsequent actions have lent credibility to that campaign.

[25]     The report tells me that Mr Johnston has had a difficult upbringing.   His mother is a good woman and has long stood by him.   His late father had serious alcohol issues, and there was little paternal contact after the age of three.  His sisters stood by him, despite his repeated criminal offending, but it appears that enough now is enough.

[26]     It is a particularly depressing fact that Mr Johnston appeared here alone in Court.  His actions have led to his family now largely disowning him.  He is without anyone now to support him and that is itself a tragedy.

[27]     The report states that he maintains his innocence of the current attempted sexual violation charge.   It says that he shows no remorse or victim empathy and displays no insight regarding the effects on the occupants of the property that he invaded.  As I have noted already, the report states that he denies culpability for his previous sexual offending.  That demonstrates a fundamental lack of insight given that he had pleaded guilty to one of the two previous offences, and was found guilty, unsurprisingly, of the second.

[28]     The report  tells  me that  despite spending a protracted  period  of time in prison, he has received little in the way of treatment for sexual offending.  His denial of any serious sexual offending has prevented any meaningful treatment being effected.  He has not been eligible to undertake a programme for adult sex offenders. The pre-sentence report concludes:

[W]hen combined with the fact that he refutes his sex offending the long term prognosis for Mr Johnston receiving treatment, let alone being rehabilitated, is bleak.

The report continues:

Mr Johnston’s risk of reoffending is assessed as very high given his sexual recidivism, his lack of motivation to address his rehabilitative needs, his lack of  meaningful  treatment  and  his  extensive  criminal  history.     Unless Mr Johnston  undergoes  a  momentous  attitudinal  change,  where  he  is prepared to challenge his past behaviour, his risk will remain elevated.

[29]   The pre-sentence report assesses him as “being at a very high risk of reoffending”.

Section 88 reports

[30]     I turn now to the s 88 reports.   The first  is from consultant psychiatrist Dr Nick Judson of Capital Coast Health.   His report records that Mr Johnston has spent over 20 years of his adult life in prison, that he feels very institutionalised and

has struggled in the community since release with little support.  It records that he has had significant problems in the past with alcohol.   By his early 20’s he was alcohol dependent.  While now abstaining from alcohol, he has drifted into the use of other drugs.  In particular, cannabis.  Dr Judson reports that Mr Johnston presented as polite and articulate, quietly spoken and rather intense in manner.  He reports that he was focused throughout in justifying his actions, minimising his offending and denying recent events.

[31]     Dr Judson takes the view that that the prisoner does not present any features of mental illness, and there is nothing to indicate that mental health problems have contributed to his pattern of offending.  He does not require mental health treatment. It is doubtful whether drug use has been a significant contributing factor to his offending.   Dr Judson concludes that the prisoner has a personality disorder of an anti-social or psychopathic type.  That profile is associated with a high likelihood of reoffending.  Dr Judson concludes:

Mr Johnston has an established prior pattern of sexual offending involving entering the house of a stranger and subjecting a female to prolonged and repeated sexual assault.  Mr Johnston himself does not accept that this is the case.  The apparent repetition of this pattern and the recent conviction together with the lack of acceptance of the reality or seriousness of his offending suggests there is a significant risk that such a pattern of behaviour would be repeated.

[32]     The second s 88 report is from Mr Robert Paramo, a registered psychologist with the Department of Corrections Psychological Services, Wellington.  That report is consistent with, although more detailed than that, offered by Dr Judson.   He records that the prisoner is clearly intelligent.   He is reported as possessing an exceptionally retentive memory.  It is clear that he is intelligent and articulate.  He has a passion for sport and for cooking.   But a potentially promising career as a trainee chef was ruined by criminal recidivism as a young man.

[33]     Mr Paramo notes that Mr Johnston has been unwilling to engage fully in treatment, in particular with any psychologist involved with Corrections.  His report concludes:

Mr Johnston  has  been assessed  as  being at  high  risk of  both  offending generally and more specifically sexually.   This risk is considered to be of serious harm to female victims vulnerable in their homes.

[34]   Mr Paramo notes that the prisoner’s focus on demonstrating innocence represents a barrier to engaging meaningfully on any issues relevant to his risks in the problem areas relating to his offending.   Enrolment in the adult sex offenders treatment programme is a long term goal and not recommended in the near future. To complete it successfully Mr Johnston would need to demonstrate a more open motivation to change, after resolving his appeal issues.  It is not clear, Mr Paramo says, if these treatment issues can ever be resolved.

Preventive detention?

Introduction

[35]     I turn now to the question of preventive detention.  I have, as I already said, concluded that preventive detention is the only sentence I can appropriately impose.

[36]     The object of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.1   Its purpose is not punitive.2     The Act provides three qualifying conditions for sentencing to preventive detention.3    It is accepted by the defence that Mr Johnston meets these conditions.  The only room for argument might have been over the third:  the Court is satisfied - on reasonable grounds, rather than beyond reasonable doubt4 - that he is likely to  commit  another qualifying sexual  or  violent  offence if  released  at  the

sentence expiry date.  I will come back to that question when I address the third of

the five statutory considerations prescribed in s 87(4).

1      Sentencing Act 2002, s 87(1).

2      R v C [2003] 1 NZLR 30 (CA) at [5].

3      Sentencing Act 2002, s 87(2).

4      R v Dittmer [2003] 1 NZLR 41 (CA).

[37]     The first statutory consideration is whether a pattern of serious offending is disclosed by the prisoner’s history.   I have no doubt that criterion is met here.   In

1993 and again in 1994 he broke into homes and raped the female occupants of those homes.   From 1994 to 2009 he was continuously in prison.   During that time he planned further sexual offending specifically against very young women.   After release  from  prison  in  2009  he  continued  this  planning  in  conjunction  with Mr Braddock (albeit the role of the latter seems to have been a passive one). The use of home invasion, violence and threats has been part of his modus operandi.  I do not accept the defence’s submission that a more cautious assessment is required where the case against Mr Johnston was built by the Crown on propensity evidence. Propensity evidence is exactly what its name says it is.

[38]     Mr Paramo’s report correctly records that there is Mr Johnston’s history a very disturbing pattern of progress from illegal ingress to private property and a repeated and an increasingly concerning trend of violent sexual offending.  It is clear that  he  has  a  particular  sexual  fascination  with  adolescent  girls,  and  that  he  is prepared to act unlawfully and violently to fulfil these fantasies.

(b)      Seriousness of harm to community caused

[39]     The second consideration is the seriousness of harm to the community caused by the offending.  The harm caused to the community by sexual offending against young women is self evident. There is no argument from the defence about that.

[40]     As noted earlier, the victim of the 1993 crime was still feeling acutely its effects a decade later when he was tried for that crime.  The impact on Mr Johnston’s latest victim is profound despite the fact that she did not confront him directly.

[41]     The third statutory consideration is of information indicating a tendency to commit serious crimes in the future.  For present purposes that is the most significant question.

[42]     I have already cited at some length from the two s 88 reports from Dr Judson and Mr Paramo.  Dr Judson has concluded that there is a significant risk that such a pattern of behaviour would be repeated.   Mr Paramo assesses the prisoner as presenting a “high risk of offending in general and a high risk of reoffending sexually”.   He says that the pattern of reoffending is likely to be realised quickly after release from custody.

[43]     At  an  earlier  stage  defence  counsel  indicated  in  Court  an  intention  to challenge these findings in a disputed facts hearing, and time was provided for that. But that challenge fell away and I must accept the conclusions of the experts at face value.

[44]     This is a clear case in my view where there is a real and present risk that the prisoner will commit serious offences in the future.  The major reason for reaching that conclusion is directly connected to the next consideration. That is his regrettable inability to face the consequences of his actions and do something positive about it.

(d)      Efforts to address causes of offending?

[45]     The fourth consideration is the absence or failure of efforts by the offender to address the causes of his offending.  The s 88 reports make clear that he denies his current offending entirely (apart from the threatening charge) and, worse, maintains innocence in relation to his prior sexual offending.

[46]     That is deeply troubling.  The Court cannot conclude other than that there is a real risk that his combined failure to accept that he has offended, and to address the cause or causes of that offending, increases the likelihood of reoffending in the

future.  That is true in its own terms, but also because the perpetuation of such an attitude will exclude him from treatment for adult sexual offending.

(e)      Preference for determinate sentence

[47]     The fifth consideration is that as a matter of statutory preference a finite and determinate sentence is  to  be preferred.   The  s  87  preventive detention  regime represents an exception to that principle.   A lengthy but determinate sentence is preferable if it provides adequate protection to society.

[48]     In this case I am unable conclude that it would do so.  Given the prisoner’s continued denial of past and current offending, in my view it would be quite unsafe for a finite sentence to be imposed.   Mr Johnston would in those circumstances complete his sentence, without obtaining assistance or treatment to enable him to deal with the issues underlying his offending.  He would then be released into the community and, as occurred on this occasion, likely commit another similar offence.

[49]     I do not disregard the potential availability of an extended supervision order if a finite sentence were imposed.  Indeed I am bound to consider it,5 and that course has been urged on me by defence counsel.6   But that distant prospect is not sufficient in my view to tip the balance away from preventive detention in favour of that form of sentence.   This was serious sexual offending, combined with persistent and maintained  denial  of  culpability.    The  prisoner  is  not  a  marginal  candidate  for

preventive detention.   Finite sentences in the past have not assisted him to meaningfully address his problems.   Instead they have fed his habitual resort to denial. An extended supervision order may offer some additional societal protection, but only in a back-ended fashion.   Mr Johnston needs to address his particular demons sooner rather than later.   It follows that entirely apart from issues of community safety, the offender rehabilitation and reintegration consideration (upon which defence counsel focused some attention) favours preventive detention, rather

than another finite sentence.

5      R v Parahi [2005] 3 NZLR 356 (CA) at [34].

6      An extended supervision order had been sought in relation to Mr Johnston on his 2009 release, but was opposed and declined.

Conclusion

[50]     It follows that the only satisfactory way in which risk and rehabilitation can each be adequately provided for is if a sentence of preventive detention is imposed. I am hopeful that it will result in Mr Johnston grasping the reality of what he has done both recently and in the past, acknowledging his offending, and seeking real help for his problems.   It is clear from the s 88 reports that Mr Johnston is not without ability, but he is fundamentally without insight. At least at the moment.

[51]     Mr Johnston needs to grasp the nettle here and seek help.  If he does not, then he  will  not  be  released  until  such  time  as  appropriate  health  professionals  are satisfied that he does not pose a risk to the community.  Unless he does something about it, that may not be for a very significant period of time.

Finite sentencing approach

[52]     I need to say something briefly about the finite term sentence that I would have imposed had I adopted the approach urged on me by defence.   I would have adopted a starting point of six years’ imprisonment on the attempt charge.   That would have reflected:

(a)       agreement by counsel that this is a band two case in terms of R v AM;7

(b)the  degree  of  premeditation,  victim  vulnerability,  intrusion  into private property and victim impact (and the absence of mitigating factors relevant to the offending); and

(c)       it would have reflected the six  year starting point adopted by the

Court of Appeal in R v Keen,8  which I consider the most analogous case viewed overall.9

7      R v AM [2010] NZCA 114.

8      R v Keen [2010] NZCA 112.

9      While it involved a direct physical assault, it did not on the other hand involve either significant premeditation or private property invasion.

[53]     To that six year starting point there would have been no discount for personal mitigating factors.  It is common ground in this case there are none:  he has relevant previous convictions, he has not pleaded guilty, and he has not expressed remorse. An uplift of 18 months to reflect his prior convictions is appropriate (being at the upper end of the 12-18 month range accepted by the defence as appropriate).10

[54]     Therefore, had I imposed instead of preventive detention a finite sentence, it would have been of seven and a half years’ imprisonment on the primary charge, six months’ concurrent imprisonment on the threatening charge, and a minimum non- parole period of five years.11   However, all that is now rather beside the point.

Sentence

[55]     The sentence of this Court is as follows.  On the charge of attempted sexual violation by unlawful sexual connection Mr Johnston is sentenced to preventive detention.

[56]    I am bound in those circumstances also to order a minimum period of imprisonment.   The criteria for such an order are different as between finite and preventive detention sentences.   Having regard to the criteria in s 89(2), I order Mr Johnston to serve a minimum term of imprisonment of six years.

[57]     On the remaining charge of threatening to cause grievous bodily harm he is sentenced to six months’ imprisonment, to be served concurrently with (i.e. at the same time as) the sentence he serves on the lead attempted sexual violation charge.

[58]     I note that upon conviction I gave Mr Johnston the statutory stage 1 “three strikes” warning, and through his counsel I remind him of that fact now.

10     Indeed the defence submissions accept that an uplift of 12-18 months would be appropriate. The

Crown sought 12 months’ uplift.

11     Applying the criteria in s 86(2) of the Sentencing Act 2002.

[59]     That is the sentence of the Court and that concludes this sentencing.  Thank you, counsel, for your assistance.

Stephen Kós J

Solicitors:

Crown Solicitor, Wellington

Public Defenders Office, Wellington