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 personal circumstances.  That is, was a sentence of three years and eight months’ imprisonment excessive?  Different judges might well reach an end result by different routes.  Provided the end result is within range, this court will not interfere, even if it might have reached that end result (or one close to it) by somewhat different reasoning.  An appellant is not entitled to corral those parts of the sentencing judge’s reasoning process which find favour and concentrate solely on that part or those parts they find less palatable. 

[10]     Ms Baigent has not shown this sentence was out of range.  Let us accept for the moment (for the sake of argument) that Ms Baigent were right that the ecstasy supply charge warranted a starting point of one year’s imprisonment.  No one could have quibbled had the judge adopted a starting point of four years’ imprisonment for manufacturing methamphetamine.  That would still have been right at the bottom of the lowest band for manufacturing in the guideline judgment of R v Fatu [2006] 2 NZLR 72 at [43] (CA). That would have led to a combined starting point of five years. Chisholm J’s one‑third discount for early guilty pleas was generous: the norm is 30%. A discount of 30% from five years would have been 18 months, leaving a sentence of three years and six months’ imprisonment; that is to say, virtually the identical sentence Chisholm J came to.

[11]     We may add that we do not accept a starting point for the ecstasy offending should have been as low as one year, but we have done this exercise to show that, even if that were appropriate, the end result is still not shown to be wrong.  Some may argue Chisholm J was slightly heavy on the ecstasy side, but one could equally argue he was slightly generous on the methamphetamine side.  This shows why sentencing for multiple offending must be looked at in the round.

[12]     Ms Baigent’s argument on the first issue fails.

Was the sentence out of line with that imposed on Daniel White?

[13]     Mr Johnstone’s second complaint is that the sentence was too high compared with that of his co‑offender, Mr White.  The applicable principle under this issue was summarised by this court in R v Lawson [1982] 2 NZLR 219 at 223:

[A] marked difference in the sentences imposed on co‑offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute.  The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered evenhandedly. 

[14]     This court went on to say that “a disparity in sentences imposed on co‑offenders may justify a reduction in a sentence imposed on one which would otherwise be appropriate”.  But the court stressed that the test for intervention “is not merely whether an offender feels a sense of grievance over the sentence imposed on him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice”.  The court added:

A number of expressions have been used to capture this concept, namely “the disparity is so gross that a justifiable sense of injustice would persist”, that right‑thinking members of the public are likely to say “there is something wrong here” – R v Potter [1977] Crim LR 112.  But the test is objective; not subjective.  It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice. 

[15]     Let us now apply that test to the facts here.  Mr White was involved with Mr Johnstone in the manufacturing of methamphetamine, which took place in Mr Johnstone’s home‑unit in Wanaka.  Mr White was not involved in Mr Johnstone’s ecstasy offending.  He did, however, face a second charge of attempting to manufacture methamphetamine.  The day after Messrs Johnstone and White manufactured methamphetamine in Wanaka, the police executed a search warrant at Mr White’s Christchurch home.  They found there chemicals, containers and equipment consistent with the manufacture of methamphetamine.  Mr White’s explanation was that other people had been using his home to manufacture methamphetamine, but that he himself had not been involved in that activity.  He did, however, admit that “on one occasion he [had] unsuccessfully attempted a ‘cook’ on his own”.  That admission was the basis of the attempt charge to which he pleaded guilty.

[16]     Chisholm J, with respect to the Wanaka offending, adopted in Mr White’s case a starting point of four years’ imprisonment.  This was slightly higher than the starting point adopted for Mr Johnstone; that was because he thought Mr White “more culpable than Mr Johnstone” because he had taken the manufacturing equipment from Christchurch to Wanaka.  He then added six months for the other charge, making a combined starting point of four and a half years’ imprisonment.  He allowed a one‑third discount for guilty pleas and other mitigating factors.  That led to an end sentence of three years’ imprisonment. 

[17]     This case does not come near to meeting the Lawson test.  Mr Johnstone was arguably lucky that the judge adopted a lower starting point in his case for the methamphetamine offending than Mr White’s; arguably, they were equally culpable.  Mr Johnstone had, after all, invited Mr White to come to Wanaka “to do a cook”.  Mr Johnstone had supplied the premises, purchased the precursor substance, and helped with the cooking process.  But there is in any event a marked difference in the other offending: Mr White’s other offending (at least as charged) amounted to only an attempt, whereas Mr Johnstone had on a separate occasion sold ecstasy for reward.

[18]     The two sentences, far from being so disparate as to “tend to bring the administration of justice into disrepute”, sit side by side very neatly.  Mr Johnstone’s overall offending was more serious than Mr White’s. 

[19]     This subsidiary argument must also fail.  This means the appeal against sentence must be dismissed. 

Solicitors:
Crown Law Office, Wellington