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…

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 780
Case: [2012] NZHC 780
Decision Date: 26 April 2012

CaseChat Overview and Summary

In the case of The Queen v Justin Ames Johnston, the High Court of New Zealand was tasked with sentencing the defendant on charges of attempted sexual violation and threatening to cause grievous bodily harm. The court had to decide whether to impose a finite sentence or preventive detention, given the defendant's history of serious sexual offending. The defendant had a history of sexual offences against women, including two prior rapes in 1993 and 1994, and had spent the majority of his adult life in prison. The court considered the defendant's risk of reoffending, his lack of insight and remorse, and his history of denying his offending. The pre-sentence reports indicated that the defendant had a high risk of reoffending, particularly in the sexual domain, and that he had not engaged meaningfully in treatment due to his denial of his offending. The court concluded that preventive detention was the only appropriate sentence, given the defendant's ongoing risk to the community and his failure to address the causes of his offending.

The court sentenced the defendant to preventive detention on the charge of attempted sexual violation by unlawful sexual connection, with a minimum term of imprisonment of six years. The defendant was also sentenced to six months' imprisonment, to be served concurrently, on the charge of threatening to cause grievous bodily harm. The court noted that the defendant had been given a stage 1 "three strikes" warning upon conviction and reminded him of that fact. The court emphasised the importance of the defendant addressing the underlying causes of his offending and seeking help to reduce his risk of reoffending.

Orders