R v Johnston HC Hamilton CRI-2006-419-167

[2007] NZHC 1742

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2006-419-167

THE QUEEN

v

GAVIN GEORGE JOHNSTON

Hearing:         21 May 2007

Appearances: Ms L Dunn for Crown

Mr S Ellis for Prisoner

Judgment:      21 May 2007

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Hamilton
Counsel:

Mr S Ellis, P O Box 19138, Hamilton

R V  JOHNSTON HC HAM CRI-2006-419-167  21 May 2007

[1]      Mr Johnston, you appear for sentence having pleaded guilty to one charge of conspiring to defeat the course of justice between 26 July and 19 August 2005.   That offence carries a maximum penalty of seven years imprisonment.

Factual background

[2]      The charge against you arises out of the termination of a police operation called Operation Seal.   The purpose of that operation was to recapture a fugitive by the name of Kim Smith, who successfully evaded capture by the authorities between November 2004 and 19 August 2005.    During that period, as you know, he was living in remote rural locations in the Franklin area.

[3]      Your involvement with Mr Smith came very late in the piece.   On 15 August

2005 Mr Smith telephoned you and there were several discussions between you and him on that day.   On the afternoon of 15 August you met Mr Smith at Rangiriri and the summary of facts records that at that meeting you gave Mr Smith the sum of

$3000 in cash.   This sum was apparently owed by you to Mr Smith’s associate, Ms Hauraki, and related in some way to a motor vehicle.     There was also a further meeting shortly before midnight on 15 August 2005.

[4]      You  met  with  Mr  Smith  again  on  18  August  2005  at  Waingaro  near Ngaruwahia.     This was the day before Mr Smith’s arrest  at Patumahoe.     The summary of facts records also that during your discussions with Mr Smith you made a general offer of assistance to him.

[5]      During your dealings with Mr Smith you knew you must have known that he was wanted by the police and it was for that reason that you met him in covert circumstances.   As the Crown points out, the provision of cash to Mr Smith was an act that assisted him to continue to meet his needs whilst on the run from the police. Likewise, the offer of assistance that you made was no doubt accepted by him as being another means of assistance at his disposal to remain free.

[6]      Although I do not propose to refer to them in any detail, I bear in mind the principles set out in the Sentencing Act 2002.   In your case these include not only the need to make you accountable for the harm that you have done, but also to deter other people in the community from harbouring fugitives in the future.   Those who provide assistance to people who are wanted by the authorities must know that if they are detected they are likely to receive a significant sentence.

[7]      The Court is, however, required to assess the seriousness of your offending and to ensure that the sentence that is imposed upon you is broadly consistent with sentences imposed in similar cases.    It must also do what it can to assist in your rehabilitation and reintegration into the community and to impose a sentence that is the least restrictive outcome in the circumstances.

Starting point

[8]      There is obviously no “tariff”, or guideline, judgment as such for the offence of conspiring to defeat the course of justice.    This is because such offending can occur in many different ways, and it would be inappropriate to set a guideline for that very reason.

[9]      In sentencing you I derive the greatest benefit from the sentences that have already been imposed on other people arrested as a result of the termination of Operation Seal.    I have also had the benefit of sentencing many of those persons myself, so I have come to have a working knowledge of where various offenders sit in terms of culpability.

[10]     In your case the Crown accepts that your culpability sits below that of Mr Dixon.     Mr Dixon provided assistance by way of information on a reasonably regular basis to Mr Smith regarding the state of the police investigation and other matters of interest to him.   His offending occurred over a much greater period than yours and involved much more regular contact.

[11]     In sentencing Mr Dixon I took a starting point of four months imprisonment and imposed an end sentence of three months imprisonment after providing a 25 per cent discount for a guilty plea that was entered at the same time as you entered yours.

[12]     A case that I consider to be below yours in terms of culpability is that of Mr Tainui.   Mr Tainui met with Mr Smith on one occasion.   He checked that the coast was clear and then allowed Mr Smith onto the property at which he was residing where he met with him.   Mr Tainui also pleaded guilty at the same time as you and received a sentence of 60 hours community work.

[13]     Your offending is clearly greater  in terms of culpability than that  of Mr Tainui because you not only provided him with an offer of assistance but you also provided him with a substantial sum of cash that he could use to meet his ongoing expenses.

[14]     In those circumstances I consider that, had I been considering a sentence of imprisonment, a starting point of two to two and a half months imprisonment would have been appropriate.   That sentence would, in my view, need to be increased by at least  a  month  to  recognise  the  fact  that  you  have  a  very  long  list  of previous convictions spanning many years.   As I am sure you now appreciate, your criminal history is such that every time you appear for sentence it is likely that the sentence that would otherwise be imposed upon you will be increased to reflect your criminal history.

[15]     The  only  way,  Mr  Johnston,  you  can  prevent  that  happening  is  by  not offending again.   If you choose to re-offend the sentences will simply keep getting longer and longer.

[16]     The starting point would therefore have been increased to about three and a half to four months to reflect the aggravating factor of your previous offending. That sentence would, however, then need to be reduced by 25 per cent as a result of the guilty plea that you entered.    You would therefore be receiving a final prison sentence of around two and a half to three months.

[17]     In your case your counsel urges upon me the need to take account of several factors that have occurred since your offending.   The first of these is that you have actively sought help for your abuse of drugs.    You are currently on a methadone programme and you are determined to render yourself drug-free.

[18]     Secondly, you are now living in a stable domestic environment with your former partner, her children and her current partner.     This appears to be an environment within which if you are to have a chance of succeeding in the future this may well be appropriate.

[19]     Thirdly, you have recently suffered a very serious motor accident.   This left you badly injured and you are currently in a wheelchair.     Further operations are scheduled for the future and including an operation on your arm on 16 June 2007.

[20]     Your counsel advises me that these factors and, in particular, the injuries that you received in a motorcycle accident have been a life-changing event for you and you have determined to put your past behind you and ensure that you are available in the future for your children.

[21]     These matters are such that I have reached the view that little benefit would be gained by sending you to prison.   The public would not really benefit because the fact that you are sitting in prison in a wheelchair is of no real benefit to the public interest.   You, too, may well be turned away from your present determination if you are sentenced to a term of imprisonment.

[22]     For this reason I consider that the community can best benefit by a sentence of community work.     Given your previous convictions that would need to be a reasonably significant sentence.    On the other hand, I need to give you adequate recognition for the fact that you pleaded guilty in January, at which point the Court indicated that you would receive a discount of 25 per cent on your sentence.

[23]     In those circumstances I impose a sentence of 190 hours community work.   I do that on the basis that the probation report points out that you have only breached such a sentence on one earlier occasion.   That gives me hope that you will accept the sentence that I have imposed and that you will faithfully carry it out.   If you do not, Mr Johnston, then you know that the authorities will no doubt bring you before the Court on a charge of breach of the sentence that I have imposed.    You will then inevitably be sentenced to a term of imprisonment.

[24]     Stand down.

Lang J