R v Johnstone - [2008] NZCA 143

IN THE COURT OF APPEAL OF NEW ZEALAND
CA64/2008
[2008] NZCA 143
THE QUEEN
v
BLAIN CHRISTOPHER KEITH JOHNSTONE
Hearing:29 May 2008

Court:Chambers, Venning and Cooper JJ
Counsel:S L Baigent for Appellant

J C Down for Crown

Judgment:4 June 2008 at 11 am

JUDGMENT OF THE COURT

A        An extension of time for appealing is granted.
B        The appeal is dismissed.
REASONS OF THE COURT
(Given by Chambers J)
Multiple drug offending
[1]       Blain Johnstone pleaded guilty to manufacturing methamphetamine, supplying ecstasy, production of a precursor substance, and possession of that substance. His total sentence was three years and eight months’ imprisonment. He now appeals against that sentence.
[2]       Mr Johnstone’s appeal was filed out of time. Ms Baigent provided an explanation for the delay. The Crown does not oppose the grant of an extension of time for appealing. We grant such an extension.
Issues on the appeal
[3]       There are two issues on this appeal. The first is whether the sentence was excessive. Ms Baigent, for Mr Johnstone, submits that it was. She submits the overall sentence should have been three years’ imprisonment.
[4]       If she failed on the first issue, she raised a subsidiary issue, namely that the sentence was markedly and unfairly higher than the sentence imposed on a co‑offender, Daniel White. Chisholm J sentenced Mr Johnstone and Mr White at the same time. Mr White received a sentence of three years’ imprisonment.
Was the sentence excessive?
[5]       The ecstasy offending occurred 11 months before the methamphetamine and related offending. For that reason, Chisholm J determined to sentence on a cumulative basis. So far as the methamphetamine offending was concerned, the judge adopted a starting point of three and a half years’ imprisonment. He then deducted a third (14 months) essentially for the early guilty pleas. That led to an end sentence of two years and four months’ imprisonment.
[6]       So far as the ecstasy offending was concerned, he adopted a starting point of two years’ imprisonment. He gave a one-third discount (eight months) for the guilty plea, leaving a sentence of one year and four months’ imprisonment.
[7]       His Honour then stood back and considered “the totality principle”. He concluded that the overall sentence derived by combining the two sentences (three years and eight months’ imprisonment) withstood “scrutiny”, with the consequence that no further adjustment was required. He formally convicted and discharged Mr Johnstone on the two remaining charges.
[8]       Ms Baigent did not quarrel with the use of cumulative sentences. Nor did she quarrel with the starting point for the methamphetamine offending. She also accepted the appropriateness of the one-third discount. All her fire was directed at the starting point for the ecstasy offending. That was, she submitted, too high. The judge should have adopted, she said, a starting point of one year’s imprisonment.
[9]       With respect, that is not the correct approach. What we are concerned with is whether the end sentence was manifestly excessive for the overall offending in light of Mr Johnstone’s…

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 Johnstone

Details

AGLC: R v Johnstone [2008] NZCA 143
Case: [2008] NZCA 143
Decision Date: 4 June 2008

CaseChat Overview and Summary

The case of R v Johnstone involved the appellant, Blain Christopher Keith Johnstone, who appealed against his sentence of three years and eight months' imprisonment for manufacturing methamphetamine, supplying ecstasy, production of a precursor substance, and possession of that substance. The appeal was filed out of time, but the court granted an extension for appealing due to the explanation provided by Ms Baigent, who represented the appellant. The Crown did not oppose the grant of the extension. The appeal raised two main issues: whether the sentence was excessive and whether it was markedly and unfairly higher than the sentence imposed on a co-offender, Daniel White. The court found that the sentence was not excessive and did not amount to a marked and unfair disparity with the co-offender's sentence.

The court examined the arguments raised by Ms Baigent, who submitted that the sentence was excessive and that the starting point for the ecstasy offending should have been one year's imprisonment. The court disagreed, stating that the focus should be on whether the end sentence was manifestly excessive for the overall offending in light of the appellant's personal circumstances. The court concluded that even if the starting point for the ecstasy offending was one year, the end result would still not be shown to be wrong.

The court also examined the appellant's second complaint that the sentence was too high compared to that of his co-offender, Daniel White. The court found that the sentences imposed on the co-offenders did not come near to meeting the test for intervention, as the appellant's overall offending was more serious than that of the co-offender. The court concluded that the appeal against the sentence must be dismissed.

The appeal against the sentence of three years and eight months' imprisonment was dismissed by the Court of Appeal of New Zealand. The court granted an extension of time for appealing and found that the sentence was not excessive and did not amount to a marked and unfair disparity with the co-offender's sentence.

Orders