THE QUEEN v KELLY ROBERT JOHNSTON [2003] NZCA 20 (26 February 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA447/02

THE QUEEN

V

KELLY ROBERT JOHNSTON

Hearing:

25 February 2003

Coram:

Gault P

Robertson J

Doogue J

Appearances:

T Sutcliffe for Appellant

H Lawry for Crown

Judgment:

26 February 2003

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

[1]	This is an appeal against concurrent sentences of 2½ years imprisonment imposed in the High Court at New Plymouth on 29 November 2002 on charges of offering to supply methamphetamine and supplying methamphetamine to which Mr Johnston had pleaded guilty on the morning of trial.
[2]	There was a trial on charges of doing an indecent act with intent to insult and of rape at which the jury returned verdicts of not guilty on both counts.
[3]	The appeal is advanced on the basis that the sentence imposed is manifestly excessive, particularly in that Mr Johnston pleaded guilty to a summary of facts with specific allegations of culpability but was dealt with on a basis which was different from that.
[4]	The summary of facts provided:

Mr Johnston had been in a casual relationship with B which included a sexual relationship from August 1999 until the middle of 2001.The two charges he has pleaded guilty to relate to the period 1 January 2000 to 1 February 2001.Mr Johnston offered to supply and supplied class B drug, namely methamphetamine, “speed” to B.This was in single dosages which she voluntarily consumed.

[5]	A pre-sentence report prepared for the Court recommended community work.
[6]	The Crown presented written submissions to the sentencing Judge which indicated “a sentencing range of community work to a short term of imprisonment”.
[7]	The submissions, in dealing with the Sentencing Act 2002, said:

The Crown submits to achieve the purposes for sentencing set out in section 7(1)(a) and 7(1)(f) of the Sentencing Act 2002, namely to hold the defendant accountable for harm done to the community and to deter others from committing the same or similar offence, the Court must take a firm and deterrent approach to sentencing given the increasing popularity of such drugs as methamphetamine among drug users and its potential for serious harm.

[8]

The submission discussed what was described as the principal tariff case of R v Wallace and Christie (1996) CRNZ 443 and then referred to two decisions in the High Court which it was of the view were relevant.These were R v Coleman S101/94, 18 November 1994, where the defendant was sentenced for possession of methamphetamine for supply and three charges of supply. There McGechan J imposed a term of 12 months imprisonment which was suspended together with 6 months periodic detention on the possession for supply charge and a $200 fine on each of the supply charges.The other case was R v Tony William Hitchcock S34/96, 19 April 1996. He was sentenced by Goddard J on one charge of supplying a class B drug to a sentence of 9 months imprisonment which was suspended together with 4 months periodic detention.

[9]

The Crown concluded its submission on sentencing:

In light of the above decisions, the Crown submits that the appropriate sentence in the present case is a significant term of community work or a short term of imprisonment not exceeding 6 months.

The Crown submits that the above cases make it clear because of methamphetamine’s serious potential for harm to the user that deterrent sentences are required to deter others from committing the same or similar offending.The Crown submits that purpose would more readily be achieved by a term of imprisonment as opposed to community work.

[10]	Notwithstanding all of this, and although the Judge said that he “studiously put aside any questions relating to the offences upon which he was not convicted”, the appellant was sentenced on a very different basis.
[11]	In his remarks on sentencing, the Judge quoted from a pre-sentence report which had noted:

“In explanation, Mr Johnston stated that the complainant had a drug habit and had asked him to procure the drug for her.He stated that he obtained the methamphetamine from an associate.Mr Johnston further stated that he only had enough methamphetamine for two “snorts”.He said that he shared the drug with the complainant.

“Mr Johnston said that while some of his associates used drugs and alcohol regularly, he used them only occasionally. He stated that his alcohol consumption was limited to “a few” beers at the weekends and the occasional use of cannabis or methamphetamine.Mr Johnston stated that the complainant was his girlfriend for approximately 18 months.He said the relationship ended soon after he was arrested in August 2001.He said that the complainant abused drugs.”

In response to this the Judge said:

[a] After you had pleaded guilty to the above charges you were then tried on other charges involving indecencies and rape of the complainant. You were acquitted on those and I want to make the point I have studiously put aside any consideration of those matters when considering this sentence.

[b] The evidence in relation to those charges included, however, evidence relating to the extent to which you supplied the complainant with the drugs in question.It is quite clear from that evidence that you supplied her with drugs on a regular basis over the period referred to in the charges and this was not disputed by you.

[c] The relationship between you, and to a large extent the use of the drugs, occurred in the context of a night-club, The Mill Bar and Restaurant in New Plymouth, where you were the disc jockey/manager.

[d] In your own examination-in-chief you stated that the relationship also included, from time to time, taking the drug “speed” and you agreed with the complainant’s recollection that this was generally around the time raves took place at the night-club.When asked how common it was for that drug to be available during these times you said “it wasn’t available for every rave but it was available on some yes, a lot of people were doing it in the rave scene and at dance parties”.

[12]	The Judge subsequently noted:

In relation to these matters, I am satisfied on the evidence first, the complainant’s involvement with the drug “speed” began and ended as a result of her association with you.This was not disputed by you in evidence.Secondly, that your apprehension by the Police was not instigated by any complaint by the complainant. I therefore reject these comments by you and take them as yet a further example of what I perceive to be your dishonesty.

[13]

The appellant is now left with a sense of injustice in that he did not address evidence to these issues which were then held against him particularly the assumption that he supplied the drug at his place of work. He assumed that he had pleaded guilty to the allegations in the statement of facts as confirmed by the Crown submission which did not have the innuendo attaching to it which the Judge adopted. Mr Sutcliffe argued that it is inappropriate and inequitable for those matters to be taken into account without the appellant having an opportunity to rebut or comment on them.

[14]

The Judge articulated the basis upon which he sentenced, as follows:

[a] You are a very dishonest and plausible person and, for the reason which I have already referred to.

[b] You quite deliberately supplied and offered to supply the drug regularly over the period in question.

[c] You were significantly older than the complainant.

[d] You introduced her to the use of “speed” and you did so in the context of night-club entertainment where you were in a position of responsibility and able to influence others.

[e] It is, and has been for some time, a matter of common knowledge that the use of this drug is extremely dangerous.

[f] Its use has become far too widespread.

[g] As another consequence it is providing great wealth to the criminal elements in this community.

[h] It is, as a result, causing great concern and difficulty to law enforcement and health agencies.

[i] You are the very sort of person who quite inconsiderately encourages the use of this drug. You, and people like you are, in a word, a menace to the community.

[15]	Mr Sutcliffe acknowledged that a Judge is entitled to make such assessments as are open on evidence presented at trial. However, he argued that the circumstances in this case are out of the ordinary in that, as far as Mr Johnston was concerned, his illegal activity with regard to drugs had been defined. He had acknowledged his culpability. The matters upon which the Judge formed such an unfavourable view about him were only peripheral to the issue at trial which was whether there had been non-consenting sexual activity which would have constituted additional criminal offending.The appellant had not challenged or explored matters which were not germane to the live issue at trial.
[16]	We are not unsympathetic to the argument in the context of this case and in our judgment the complaint has substance.
[17]	Although the complainant made various allegations about the nature of her drug involvement which were seriously critical of Mr Johnston, she made various allegations about the sexual relationship which were obviously not accepted by the jury or they would not have acquitted Mr Johnston.
[18]	The drug allegations were not all challenged or responded to in evidence by the appellant.That is not surprising in the context as the sole issue in contention at the trial was whether or not the sexual activity (which it was admitted had occurred) was consensual.For the Judge to use evidence given in that context to support the validity of the allegations made by the complainant on another topic cannot be sustainable.
[19]	In our view, it is unsafe to assume that Mr Johnston accepted other aspersions made which were not central to the trial simply because they were not challenged.They did not need to be challenged within the context of what was being litigated.
[20]	Consequently we are persuaded that it is necessary to consider afresh the penalty which is appropriate to the allegation made in the counts to which he pleaded guilty on the basis of the articulated summary of facts and of the Crown submissions.
[21]	The hallmark of the offending was that it occurred within an ongoing sexual relationship between the appellant and a woman who was some years younger than he was.In the course of it ‘speed’ was offered, accepted and voluntarily used by both of them.It is a case without any commercial connotation where there were pleas of guilty.
[22]	The Judge noted:

The important aspect of this offending is not the quantity involved, nor the extent to which on the evidence it was supplied, nor the fact there was no financial gain.The importance in the context in which it occurred and the position of control which you exercised in that context.

[23]	This aspect was not mentioned in the summary of facts nor asserted by the Crown and it is difficult to reconcile with what the Judge had said earlier:

And I accept your counsel’s submission that the supply of the drug to her must be seen in the context of the wider association between yourself and the complainant, both of whom elected to undertake a lifestyle where the use of the drug could not be regarded as being surprising.

[24]	Although it is true that Mr Johnston was a DJ, and 9 years older than the complainant, we accept that the way in which the Crown presented the allegations against Mr Johnston was that the supply of ‘speed’ by him was part of their ongoing relationship. We do not find a basis for the conclusion that his occupation was a relevant factor in that offending or that their age difference was of probative value.
[25]	This was a man who had one previous minor drug related conviction. There is nothing in the history which suggests that there was a need for particular deterrence.The sentencing Judge’s concerns about general deterrence and the attitude towards the illegal activity which emerged were relevant factors.
[26]	We are of the view that, in terms of the relevant sentencing principles, a sentence of 12 months imprisonment would properly reflect his culpability.
[27]	The appeal is allowed.The sentence of 2½ years is quashed.Mr Johnson is sentenced to 12 months imprisonment on each count, the terms to be served concurrently.Leave is granted to apply for home detention.

Solicitors

Till Henderson King, Hamilton, for the Appellant

CrownSolicitor, Auckland