JOHNSON v NEW ZEALAND POLICE [2023] NZHC 3302

JOHNSON v NEW ZEALAND POLICE [2023] NZHC 3302 [21 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-473[2023] NZHC 3302BETWEEN THOMAS JEREMIAH JOHNSONAppellantAND NEW ZEALAND POLICERespondentHearing: 14 November 2023Appearances: E J Butler for AppellantJ Mara for RespondentJudgment: 21 November 2023JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Tuesday, 21 November 2023 at 11:30 am.Registrar/Deputy RegistrarSolicitors: Public Defence Service (E Butler), AucklandKayes Fletcher Walker Ltd (Office of the Crown Solicitor), Manukau[1] On 16 August 2023, Thomas Jeremiah Johnson was sentenced to 28 months'imprisonment on 12 offences committed over a period of more than two years.1 Henow appeals against sentence on the basis that it is manifestly excessive.District Court decision[2] At the outset of his decision, Judge GA Andrée Wiltens listed the 12 differentoffences committed over a period of two years and four months. The offendingconsisted of:Date Offence Maximum Penalty1 August 2020 1 Driving while disqualified (3rd orsubsequent)Two years' imprisonment$6,000 fine2 Driving with excess breath alcohol(856 mgs of alcohol per litre ofbreath)Two years' imprisonment$6,000 fine3 Failing to stop for Police siren andlights$10,000 fine23 September 2020 1 Breach of bail One year's imprisonment$2,000 fine3 February 2022 1 Driving while disqualified (3rd orsubsequent)Two years' imprisonment$6,000 fine7 March 2022 1 Breach of bail One year's imprisonment$2,000 fine10 April 2022 1 Driving while disqualified (3rd orsubsequent)Two years' imprisonment$6,000 fine18 June 2022 1 Driving while disqualified (3rd orsubsequent)Two years' imprisonment$6,000 fine2 Possession of cannabis for supply(76.9 grams in 48 small bags andscales)Eight years' imprisonment5 December 2022 1 Possession of knife in public place Three years' imprisonment2 Intentional damage Three months' imprisonment$2,000 fine3 Failing to stop for Police siren andlights while exceeding theapplicable speed limit$10,000 fine[3] The Judge took the lead offence to be possession of cannabis for supply on18 June 2022, which carried a maximum sentence of eight years' imprisonment. Headopted a starting point of 18 months' imprisonment for that offence to which he added1 Police v Johnson [2023] NZDC 17576.another 15 months for the remainder of the offending. The Judge then uplifted thestarting point by three months to take account of Mr Johnson's extensive criminalhistory for similar offending. He therefore arrived at an adjusted starting point of 36months' imprisonment.[4] From that adjusted starting point, the Judge gave Mr Johnson a discount for hisguilty pleas of 15 per cent and an additional discount of five per cent for the mattersset out in a cultural report under s 27 of the Sentencing Act 2002, making a totaldiscount of 20 per cent.[5] The Judge explained that no greater discount was available for the s 27 reportbecause much of its content did not explain the causes of Mr Johnson's offending. Hedid not give any discount for Mr Johnson's time on electronically monitored (EM) bailbecause of the numerous breaches of EM bail.[6] The Judge therefore imposed a term of 28 months' imprisonment on thecharges of possession of cannabis for supply and possession of an offensive weapon.He convicted and discharged Mr Johnson on the two charges of failing to stop andsentenced him to concurrent terms of one month's imprisonment on all remainingcharges. Finally, the Judge disqualified Mr Johnson from holding or obtaining adriver's licence for 18 months on all the driving charges.Appellant submissions[7] No issue is taken with the starting point of 18 months' imprisonment for thecannabis charge, the uplift of 15 months for the remaining charges, the uplift ofthree months for Mr Johnson's criminal history, the discount of 15 per cent for hisguilty pleas or the 18 months disqualification that was imposed.[8] Three grounds of appeal are advanced:(a) Insufficient discount was given to reflect Mr Johnson's backgroundfactors as outlined in the s 27 report. A discount in the range of 10 to15 per cent, rather than five per cent, should have been granted.(b) There should have been a discount of 10 per cent granted forMr Johnson's remorse, rehabilitation and willingness to attend arestorative justice conference.(c) There should have been a discount of approximately two months'imprisonment for the 151 days Mr Johnson spent on restrictiveconditions of EM bail.Discussion[9] At sentencing, a s 27 report, two letters of remorse, two certificates showingthe completion of programmes while in custody, and a letter from Restorative Justicewere provided to the Court.Section 27 cultural report[10] The report noted that Mr Johnson came from a small rural town where he wasrepeatedly surrounded by alcohol and violence both in his immediate whānau andwider community. Alcohol and other drug use has been an issue for Mr Johnson formost of his life. The report states that in the rural area where he grew up, drink drivingwas normalised, as was gang membership and other criminal activity.[11] The Supreme Court's decision in Berkland v R has clarified that a causativecontribution between an offender's background and offending will be sufficient tomerit some discount at sentencing.2 Where background is an operative or proximatecause of the offending (meaning that there is a direct nexus between background andoffending) there will be greater scope for discount.3 Although a causative contributionis a lower standard than operative or proximate cause, it must still be established.There will be a point at which background factors can no longer assist in explainingthe offending.[12] As to the cultural report, the sentencing Judge said:42 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.3 At [110].4 Police v Johnson, above n 1.[15] Mr Butler has arranged for a s 27 cultural report which I have readcarefully, and some of it has application in terms of setting out yourbackground and how that relates to the offending that you have undertakenhere. For that reason, I am giving you some further discount, but not thatmuch because a lot of it does not explain the causes of your offending. I amgiving a further five per cent discount for the cultural report.[13] I cannot say that the Judge fell into error by not granting Mr Johnson more thana five per cent discount. First, the findings in the report were solely self-reported and,secondly, there was an absence of contemporaneous evidence linking the offending toany addiction issues. I acknowledge however that in his letter to the victim of hisoffending on 5 December 2022, Mr Johnson said he had been using methamphetamineand was up for three days at the time of his offending. Thirdly, the possession ofcannabis for supply was clearly commercial in nature.[14] In Berkland itself, the Supreme Court only granted the appellant a 10 per centdiscount to recognise his history of deprivation and trauma and his clinicallyconfirmed methamphetamine addiction.Remorse, Rehabilitation and Restorative Justice[15] Mr Johnson had written two letters of remorse, one to the Court and another tothe householder whose window he had broken. Mr Johnson had also completed aChoosing to Change workbook and a Controlling Anger programme while in custodyon remand. Furthermore, Mr Johnson had indicated a willingness to take part in arestorative justice conference with respect to the intentional damage change, but thehouseholder had been unable to be contacted. No conference was therefore able to beheld.[16] A discount for genuine remorse may justify its own discount and underpin aguilty plea discount. However, as the Court of Appeal noted in R v Ngamo,5 littleweight may be placed on even genuine expressions of remorse or rehabilitative effortsin circumstances of recidivist offending. Furthermore, mere willingness to engage inrestorative justice is not enough in itself to justify a separate discount for remorse whenuncoupled from other "genuine expressions".65 R v Ngamo [2009] NZCA 512 at [9].6 Pene v R [2023] NZHC 1234 at [27].[17] On sentencing, the Judge did not grant any discount for remorse, rehabilitation,or willingness to take part in a restorative justice conference. In fact, he did notmention these factors at all.[18] I am of the view, however, that the absence of any reference to these factorsdoes not amount to a material error by the sentencing Judge when one steps back andlooks at the overall circumstances.[19] Mr Johnson is now 35 years old. He has amassed 51 convictions since he was17 years old. He has been sentenced to fines, community work, intensive supervision,community detention and 19 terms of imprisonment (of up to three years and threemonths for aggravated robbery).[20] The letters of remorse must be viewed in the context of continued offending ofa similar nature over some 18 years. There is also no evidence about the coursescompleted in prison apart from the certificates of completion, but I do accept they area good start. Nonetheless, it was open to the Judge to determine that more wasrequired for him to be satisfied that some real discount should be granted forrehabilitative efforts. It was unfortunate that no restorative justice conference was ableto be held.Time spent on EM bail[21] At sentencing, Mr Johnson had spent 151 days (approximately five months andone week) on EM bail. Section 9(2)(h) of the Sentencing Act 2002 (the Act) requiresthe Court to take into account the time an offender has spent on bail with an EMcondition. In taking this factor into account, the Court must consider:7(a) the period of time that the offender spent on bail with an EM condition;(b) the relative restrictiveness of the EM condition, particularly thefrequency and duration of the offender's authorised absences from theelectronic monitoring address; and7 Sentencing Act 2002, s 9(3A).(c) the offender's compliance with the bail conditions during the period ofbail with an EM condition; and(d) any other relevant matter.[22] In Paora v R,8 the Court of Appeal observed that an arithmetical approach wasinappropriate to determine a discount for time spent on EM bail. Rather, an evaluativeassessment of all the circumstances is what is required. Allowances of between 30and 50 per cent are not uncommon.[23] In O'Connor v R,9 the Court of Appeal said there was no particular pattern inthe amount of credit for restrictive bail, but that a defendant's compliance during thatperiod is obviously relevant. Where repeated breaches have occurred, no credit maybe given. In Gage v R,10 no credit was given for five months on EM bail where therewas further offending and prior breach of bail conditions.[24] As to the time on EM bail, the sentencing Judge said:11[16] There is no discount for your time being on EM bail. That is aconsequence of your own conduct and numerous breaches of EM bail.[25] In the present case, there were repeated breaches while on bail and repeatedoffending increasing in seriousness. The main breach of bail occurred on 5 December2022 when Mr Johnson left the EM bail address and committed the last three offenceslisted in [2]. Furthermore, the restrictive nature of Mr Johnson's EM bail had beeneased from 14 October 2022, when the curfew was altered to enable him to attendwork between Monday and Friday from 5:30 am to 7:00 pm.[26] Again, no error has been demonstrated in the Judge's approach to credit fortime spent on EM bail.8 Paora v R [2021] NZCA 559 at [46], citing Tamou v R [2008] NZCA 88 at [18]-[19].9 O'Connor v R [2014] NZCA 328 at [45].10 Gage v R [2014] NZCA 140 at [26].11 Police v Johnson, above n 1.Result[27] The starting point adopted by the Judge was well within range and thediscounts imposed were appropriate based on the information before the sentencingJudge. The final sentence imposed is not manifestly excessive.[28] The appeal is dismissed.________________________________Woolford J