JOHNSON v NEW ZEALAND POLICE [2023] NZHC 3748

JOHNSON v NEW ZEALAND POLICE [2023] NZHC 3748 [18 December 2023]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2023-454-39[2023] NZHC 3748BETWEEN JOSEPH WILLIAM JOHNSONAppellantAND NEW ZEALAND POLICERespondentHearing: 14 December 2023Appearances: D M Goodlet for AppellantG L Duncan for RespondentJudgment: 18 December 2023JUDGMENT OF LA HOOD J(appeal against sentence)[1] Joseph Johnson appeals against a sentence of 22 months and two weeks'imprisonment imposed by Judge J Krebs1 on six charges of driving while suspendedor revoked (third or subsequent offence),2 and one charge of unlawful possession of afirearm.3[2] The issue on appeal is whether the sentence should have been commuted tohome detention. Ms Goodlet, for Mr Johnson, argues that as this was a borderline caseit was incumbent on the District Court Judge to conduct an adequate balancingexercise and clearly articulate why imprisonment was required.1 Police v Johnson [2023] NZDC 26383 [Sentencing Notes].2 Land Transport Act 1998, ss 32(1)(c) and 32(4): maximum penalty of two years' imprisonmentor a fine of $6,000.3 Arms Act 1983, s 45(1): maximum penalty of four years' imprisonment or a $5,000 fine.[3] In Tutakangahau v R the Court of Appeal confirmed the long-standingapproach to sentence appeals was not altered by s 250 of the Criminal Procedure Act2011. The appellant must show a material error was made and that a different sentenceought to be imposed.4 In most sentence appeals brought by a defendant, the appealcourt will not intervene unless the sentence is manifestly excessive. Whether thesentence is manifestly excessive is to be assessed in terms of the final sentenceimposed, rather than the process by which it was reached.5 The Court said sentencing"is not a science" and an "appellate court does not start afresh nor simply substituteits own opinion for that of the original sentencer."6[4] In R v Palmer the Court of Appeal confirmed that this approach is applicableto an appeal against a decision not to commute a sentence of imprisonment to homedetention.7 The Court noted that such a decision calls for a case by case exercise ofjudgment against the principles and purposes of sentencing, and that these cansometimes point in opposing directions. Absent an error of principle, the appeal camedown to whether imprisonment was clearly excessive.8 The Court said:9As the Court explained in R v D (CA253/2008), it can be very difficult in amarginal case to articulate reasons for preferring one approach to another. Inconsequence, the margin of appreciation extended to sentencing judges isusually significant.[5] The Court of Appeal in R v D (CA253/2008) also said that in borderline cases"the view of a sentencing Judge from the jurisdiction in which crimes of the type inissue are frequently tried assumes greater weight."10[6] The "well-engrained"11 error principle articulated in these decisions recognisesthat reasonable minds can differ about where an appropriate sentence should sit withinan available range. It reflects underlying purposes important to the effective4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].5 At [30]–[36].6 At [30] and [35].7 Palmer v R [2016] NZCA 541.8 At [24].9 At [19], citing R v D (CA253/2008) [2008] NZCA 254 at [66].10 At [66].11 Tutakangahau v R, above n 4, at [34]–[35].administration of justice, including maintaining public confidence in the sentencingprocess and ensuring finality and predictability for defendants and victims.[7] Accordingly, the issues on this appeal are whether there has been a materialerror that means a different sentence should be imposed and, if not, whether there hasbeen an error because a sentence of imprisonment was manifestly excessive.[8] For the reasons set out below, I am not persuaded that the Judge erred in themanner required. It was open to the Judge to conclude that the possession of thefirearm, combined with Mr Johnson's criminal history and gang involvement, tippedthe balance against home detention. Whether another Judge may have been morelenient is irrelevant. I also do not accept that the Judge's succinct reasoning establishesa material error that has led to a manifestly excessive sentence.The relevant background[9] Mr Johnson has 17 previous convictions for driving while disqualified,suspended or forbidden in some form. Before Judge Krebs on 23 November 2023, hewas sentenced for his 18th to 23rd offence of this type having been found to be drivingwhen he was not entitled to on 4 February, 5 February, 16 February, 26 February,10 May and 1 June 2023.[10] On 1 June at 1.55 am, police spoke to Mr Johnson while parked in his car onMain Street, Palmerston North. They smelt cannabis and conducted a warrantlesssearch for drugs. The search uncovered a fully loaded and holstered .22 calibre pistolin the driver's footwell. Mr Johnson does not hold a firearms licence. As was hisright, he declined to make a statement about the firearm.[11] Mr Johnson pleaded guilty the charges. His explanation of the firearmoffending was that he heard about someone in possession of a gun, was concernedabout public safety and so went and retrieved the gun from its original holder. Therespondent supports the Judge's rejection of this claim given Mr Johnson's status aspresident of the local chapter of the Mongrel Mob gang at a time when gang tensionswere running high in Palmerston North.District Court's decision[12] The Judge adopted a starting point of eight months' imprisonment for the firstdriving charge, uplifted by 12 months for the remaining charges. This was furtheruplifted by 12 months for the firearm offending. The 32-month sentence was reducedby 25 per cent for Mr Johnson's early guilty plea and a further one and a half monthsfor time spent on EM bail, bringing the end sentence to 22 months and two weeks'imprisonment.[13] In reaching the decision that imprisonment was required the Judge consideredthe submission that Mr Johnson may have suffered a head injury at age 17;12 said thatMr Johnson obtaining his full licence was very positive, but as long as he remainedassociated with the Mongrel Mob it would not be possible to refrain from offending;13did not accept the provision of advice to the court (PAC) report's assessment thatMr Johnson was at medium risk of re-offending, instead assessing Mr Johnson as veryhigh risk;14 rejected Mr Johnson's explanation for his possession of the pistol;15 notedthat nothing seemed to make Mr Johnson respect directions not to drive, asdemonstrated by his 17 previous convictions;16 and concluded that given thecircumstances of the possession of the loaded pistol in a heightened gang context, andMr Johnson's criminal history, a condign response was required.17Assessment of the arguments and decision[14] Some preliminary points. First, repeat driving offending and firearms offencesof this type are matters that commonly come before the District Court.18 Second,neither counsel take issue with the length of the sentence. Third, both counsel acceptthat it seems likely that home detention would have been imposed but for the firearmcharge. As a result of these second and third points, I consider largely irrelevantMs Goodlet's submission that Mr Johnson's culpability on the driving charges was12 Sentencing Notes, above n 1, at [4].13 At [5].14 At [5].15 At [6].16 At [7].17 At [8].18 R v D (CA253/2008), above n 9, at [66].reduced because the offending involved driving while suspended due to demerit pointsrather than breaching a court ordered disqualification.[15] I also consider largely irrelevant the submission by Ms Goodlet thatimprisonment prevented the Judge substituting a community-based sentence fordisqualification under s 94 of the Land Transport Act to break the cycle of drivingoffending. As Mr Johnson will only have about six weeks remaining on hisdisqualification when he is released from prison, the choice of sentence has had littlebearing on this issue.[16] Ms Goodlet accepted in oral argument that a sentence of imprisonment wasopen but submitted Judge Krebs erred in not conducting a more thorough balancinganalysis. She submits that more weight should have been given to a number ofpersonal mitigating factors, and there was insufficient analysis of them.[17] The matters relied on by Ms Goodlet include Mr Johnson's full compliancewith electronically monitored bail from 21 August 2023 until sentencing on23 November 2023 and that he successfully completed home detention in 2015 (apartfrom breaching his post-detention conditions); the favourable PAC report, whichassessed him at a medium risk of reoffending and recommended an electronicallymonitored sentence; the pro-social proposal for a sentence of home detention,including the appellant's one year old son residing at the address at which homedetention would be served; and Mr Johnson's desire to change as demonstrated in partby him having obtained his full licence in June 2023.[18] I consider Mr Johnson's compliance with EM bail and previous home detention(apart from the release conditions) is a neutral factor. Non-compliance would haveweighed heavily against home detention. Moreover, the PAC report assessed him asmedium risk of being non-compliant with any future community-based sentencesincluding electronic monitoring. There was no material error in the Judge notexpressly noting this factor.[19] In terms of reoffending risk, Judge Krebs appropriately made his ownassessment based on the current charges, Mr Johnson's extensive criminal history atage 35, and his position as president of the local Mongrel Mob gang. Mr Johnson'scriminal history started when he was aged 17 in 2005 with offending (often multipleconvictions) in almost every year since. He was first sentenced to prison in 2007 andthen again in 2009, 2010, 2013. He received his longest prison sentence of two yearsand four months in July 2017 for aggravated robbery, followed by a cumulativesentence of imprisonment of four months for a common assault in early 2018.Although he has not received a prison sentence since, he was convicted of commonassault for offending in 2019, being unlawfully in a yard in 2021, and unlawfulpossession of ammunition in 2022.[20] In relation to his desire to change, it is a feature of the PAC report thatMr Johnson told the writer that he is the president of the local chapter of the gang, thathis involvement with the gang was the main reason for his offending yet expressed nointention of relinquishing his position in the gang. In those circumstances, it isunsurprising that the Judge did not put weight on Mr Johnson's expressed desire tochange and observed that change will not be possible while he remains associated withthe gang.[21] There are other aspects of the PAC report that are unhelpful to Mr Johnson,including his wholly implausible explanation of how he came to be in possession ofthe pistol.19 That explanation was the antithesis of taking full responsibility for hisoffending. Although the report writer noted Mr Johnson seemed to have a genuinedesire to change and showed some level of remorse and willingness to accept help, itwas also said that he can display a degree of self-entitlement, rationalisation andmanipulation in relation to his offending.[22] The PAC report noted that Mr Johnson lives at his father's house in Shannonwith his partner and one year old child. I accept that it may have been preferable forthe Judge to have expressly acknowledged these personal circumstances. However, Ido not consider this was a material error, especially in the absence of further19 Sentencing Act 2002, s 24(2)(c).information regarding the strength of the bond with his child and the impactimprisonment may have.20[23] Finally, both counsel referred me to a number of cases where the courts haveconsidered whether prison sentences for unlawful possession of firearms should becommuted to home detention. It is sufficient to observe that the cases confirm acondign approach is appropriate to the possession of readily accessible loadedweapons that have no purpose other than use in criminal activity,21 particularly in agang context.22 In some cases, the personal circumstances of the offender have madehome detention appropriate,23 and in other cases it has been held that deterrence anddenunciation require a prison sentence.24 In this case, Mr Johnson's conviction history,gang involvement, age, and risk of reoffending do not favour the former approach.Conclusion[24] To conclude, the Judge's reasoning was succinct, but the substance of hisdecision is clear. He considered the circumstances of possession of the pistol, alongwith Mr Johnson's previous history, gang involvement, and risk of reoffending,required a condign sentence. While there could perhaps have been express referenceto Mr Johnson's family circumstances, there was no material error in failing to do so.[25] There being no material error, the appeal comes down to whether the sentencewas manifestly excessive. I consider it was open to the Judge to conclude the localMongrel Mob president's possession of a readily accessible, fully loaded pistol in acar parked in a city's main street during heightened gang tensions, combined with hiscriminal history, required the condign response of a prison sentence.20 The importance of giving consideration to credit for the impact of imprisonment on children hasbeen recently emphasised by the Supreme Court in Philip v R [2022] NZSC 149 at [50]-[58].However, in R v Philip a clinical psychologist provided a report about the impact of imprisonmenton children who had a strong bond with the defendant.21 R v Richardson CA450/02, 25 March 2003 at [33].22 Simpson v R [2021] NZHC 2560 at [49].23 See, for example, Elwin v Police [2019] NZHC 3258; Aspinall-su'a v Police [2020] NZHC 3022;and R v Ronaki [2023] NZHC 1682.24 See, for example, Rowell v Police [2019] NZHC 471; Martel v Police HC Hamilton CIV-2010-419-69, 4 October 2010; and Waite v New Zealand Police [2015] NZHC 585.[26] Accordingly, the appeal is dismissed.___________________La Hood JSolicitors:Crown Solicitor, Palmerston North