R v Johnston [2012] NZHC 1568 (4 July 2012)

Last Updated: 11 July 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-009-002952 [2012] NZHC 1568

THE QUEEN

v

WARREN KENNETH JOHNSTON

Hearing: 4 July 2012

Counsel: K Bell for Crown

M Starling for Prisoner

Judgment: 4 July 2012

_{SENTENCING REMARKS OF LANG J}

R V WARREN KENNETH JOHNSTON HC CHCH CRI-2012-009-002952 [4 July 2012]

[1] Mr Johnston, you appear for sentence today having pleaded guilty in the District Court to two charges of rape, one charge of doing an indecent act on a girl under 12 years of age, and two charges of inducing a girl under 12 years of age to do an indecent act on you.

[2] All of your offending occurred between 1978 and 1981. As a consequence, the maximum penalties for which Parliament made provision at that time were different to the penalties available today. On each of the charges of rape, you are liable to a maximum sentence of 14 years imprisonment. On the other charges you are liable to maximum sentences of ten years imprisonment.

Background

[3] Your offending occurred when you were between 30 and 34 years of age. You came to know your victim because you were friends with members of her family. She was eight years of age at that time. You visited the family and you took the opportunity during these occasions to become involved in sexual activity with the victim who was only eight years of age at the time the offending began. You subsequently moved in to live with her family after your relationship with your then partner came to an end.

[4] Over the next four years the offending developed markedly and took several forms. It involved touching and digital penetration of the victim’s genitalia. It also, on two occasions, developed into full acts of sexual intercourse. The victim, of course, was not in a position to consent and, as a consequence, you face two charges of rape in respect of those instances. There were severely degrading aspects to your behaviour. You had your victim provide you with oral sex. You would pleasure yourself to the point of ejaculating on her.

[5] I have had the benefit of hearing your victim read her victim impact statement in Court today, as have you. You have heard the very dramatic and severe effect that your offending has had on her. She does not trust men. Her education was affected. Although she is clearly a very intelligent person, she failed at an early stage in her school career. Her relationship with her family has been affected. She

has suffered severe depression. In short, your offending, which occurred over a lengthy period, has ruined her life and will no doubt have severe effects for her for many years to come.

Sentencing Act 2002

[6] In sentencing you, the principal factors that are to the forefront are the need to hold you accountable for your offending, the need to denounce it as completely unacceptable in a civilised society, and to impose a sentence that, so far as possible, acts as a deterrent to both you and others who might be tempted to engage in similar behaviour.

Starting point

[7] Because your offending occurred such a long time ago, it is necessary for me to have regard to the sentencing levels that prevailed at the time of your offending.[1]

For a contested charge of rape, a starting point of five years imprisonment was commonly selected during the period between 1978 and 1981. That, however, does not take into account aggravating factors such as further sexual offending and the fact that your victim may have been vulnerable.[2]

[8] Your victim was extremely vulnerable, Mr Johnston, because she was very young and you were effectively in a position of trust so far as she was concerned. You were a friend of her family, and this gave you the opportunity to commit your offences. It also made it that much more difficult for your victim to tell her family about what had happened. That factor in itself has been a matter of considerable difficulty for her over the years.

[9] I consider that an appropriate starting point in your case on the charge of rape is one of five years imprisonment. Because of the fact that you committed numerous other offences over a lengthy period, and also the fact that your victim was

_{extremely vulnerable, I take the view that the starting point should be increased by}

two years to reflect that factor. That gives rise to a starting point of seven years imprisonment.

[10] From that, I need to deduct approximately 25 per cent, or 21 months, to reflect the fact that you pleaded guilty at an early stage. You did so even though you say you cannot remember the most serious aspects of your offending. This, in a sense, robs your guilty pleas of the quality reflecting the acceptance of full responsibility for your offending. Nevertheless, your guilty pleas saved the victim from having to go through the additional trauma of telling her story in front of a room full of strangers. To that extent your guilty pleas are of very real value.

[11] When I make that deduction, I am left with a sentence of five years three months imprisonment.

What end sentence should be imposed?

[12] This leads me to the most difficult aspect of the sentencing exercise. This is the need to select an appropriate end sentence, having regard to the fact that you are currently serving the indeterminate sentence of preventive detention. That sentence was imposed in 1997 after you were found guilty of sexual offending against two young male relatives. The Court of Appeal subsequently quashed the convictions that relating to one of the complainants, but the sentence of preventive detention remained intact. In those days the minimum term of imprisonment in respect of a sentence of preventive detention was ten years. For that reason, obviously, the Court of Appeal could not interfere with the sentence that the Judge had imposed.

[13] You now have a very lengthy history of sexual offending. You first offended in or about 1972, at approximately 24 years of age. On that occasion you were sentenced to six months periodic detention on a charge of indecently assaulting a boy.

[14] In 1982 you committed six further offences of indecently assaulting boys. In

1990, you were sentenced on a large number of charges relating to doing indecent acts on young boys. On that occasion, Gallen J had to give serious consideration to

imposing the indeterminate sentence of preventive detention.[3] He ultimately elected not to do so in the face of a strong recommendation from a psychologist that a lengthy finite sentence was the most suitable way to ensure that you could be rehabilitated. For that reason the Judge sentenced you to an effective term of eight years imprisonment.

[15] Whilst serving that sentence, you attended the Kia Marama rehabilitation course. In those days the course was in its early stages, having only been instituted in or about 1989. The reports that were prepared upon your exit from the programme were not altogether favourable. It appears you did not engage fully with the programme. It is perhaps no surprise, therefore, that you found yourself back in front of the Court in 1997 on serious charges. On that occasion, the sentencing Judge had no hesitation in imposing the indeterminate sentence of preventive

detention.[4]

[16] It is a testament to the difficulties you have had coming to grips with your problems that you have now been in jail for 15 years. You have again attended the Kia Marama programme, and on this occasion it seems with a little more success. It is clear, however, from the very detailed report I have from a psychologist that you have some considerable way to go before the parole authorities can feel confident in releasing you back into the community. It may be, as your counsel says, that you will never be released back into the community.

[17] The sentencing exercise I must undertake may be somewhat of an academic exercise, because you remain subject to the sentence of preventive detention. It is important, however, that I deal with the sentence to be imposed on you in a principled way.

[18] Counsel for the Crown submits that, notwithstanding the sentence you are currently serving, I should impose the end sentence that would ordinarily be imposed on you. That is, as I have said, a sentence of five years three months imprisonment. I

_{record that it is not possible to impose a minimum term of imprisonment on you,}

because that type of order was not available at the time you committed these offences.

[19] Your counsel submits that such an approach would be wrong in principle. He points out that you have now been in prison for 15 years. He submits that, if you had been sentenced on these charges in 1990, it is unlikely that your sentence would have been increased by more than 18 months or two years. Every year that you must now serve in relation to the present charges means that the sentence of preventive detention is effectively getting longer.

[20] I agree that totality principles must play a role in the sentencing process today, even though the sentence that I am imposing on you must necessarily be a concurrent one. Normally totality principles only come into play when the Court is considering imposing a cumulative sentence.[5] As a matter of logic, it is not possible to impose a cumulative sentence on the indeterminate sentence of preventive detention. Nevertheless, I take on board the fact that any sentence I impose today

will have some effect. It will delay the period before which the Parole Board may again consider any application for parole.

[21] I take your counsel to submit that application of totality principles should result in no extra sentence being imposed on you. I do not accept that to be a correct approach. Although this offending occurred a very long time ago, it nevertheless involved offending of a much different type to the offending you later engaged in. As I have already recorded, your present offending has had extraordinarily severe consequences for your victim. I consider it would be wrong in principle to select a sentence that effectively imposed no penalty on you in relation to the present charges.

[22] For that reason, whilst I am satisfied that a sentence of five years three months imprisonment would ordinarily be appropriate, totality principles led me to impose a concurrent effective sentence of three years imprisonment on the lead

_{charges of rape. This means that it will be at least 12 months before you may apply}

for parole in relation to those charges. I consider that to be an appropriate outcome given your current situation.

Sentence

[23] Mr Johnston, on each of the charges of rape you are sentenced to three years imprisonment. Those sentences are to be served concurrently with each other, and concurrently with the sentence of preventive detention you are already serving. On each of the other charges to which you have pleaded guilty, you are sentenced to 18 months imprisonment. Those sentences are again to be served concurrently with all other sentences.

_{[24] Stand down.}

Lang J

Solicitors:

Crown Solicitor, Christchurch

Counsel:

M Starling

---

[1] _{R v KJB [2007] NZCA 292 at [22].}
[2] R v Clark [1987] 1 NZLR 380 (CA) at 383.
[3] _{The Queen v Johnston HC Wellington S. 43/90, 8 June 1990.}
[4] The Queen v Johnston HC Wellington T. No. 124/96, 27 March 1997.

[5] Sentencing Act 2002, s 85(2).