R v Johnston [2012] NZHC 387 (9 March 2012)

Last Updated: 28 March 2012

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2011-002-0175 [2012] NZHC 387

THE QUEEN

v

WARREN BRUCE JOHNSTON

Hearing: 9 March 2012

Appearances: R P Bates for the Crown

A Stevens for the prisoner

Sentence: 9 March 2012

_{SENTENCING NOTES OF CLIFFORD J}

[1] Mr Johnston, you appear for sentence today having pleaded guilty to the murder of Lesley Ann Johnston, your wife of 43 years, at the family home in Roxburgh on 11 March 2011, just two days short of a year ago today.

[2] I will first explain to you, Mr Johnston, and to all here in Court, the decisions I must make to determine your sentence. But before doing so, I do acknowledge the presence in Court today of your and Lesley’s son Owen and his wife Jo-Anne, together with other members of your and Lesley’s wider families and friends. I will refer later in my sentencing remarks to the victim impact statements that Owen and Jo-Anne have read out, to the victim impact statements provided by other members of Lesley’s family and her friends and to a range of other material that has been put before me – including a letter to the Court from your sister Beverley and your own

_{letter to your son and daughter-in-law.}

R V JOHNSTON HC DUN CRI-2011-002-0175 [9 March 2012]

[3] But I say at once that the events which have brought you all here today are –

without doubt – a tragedy.

[4] Now, the decisions I must make: where – as here – a person has been convicted of murder, the Court is required to impose a sentence of life imprisonment, unless such a sentence would be manifestly unjust. A person sentenced to life imprisonment must serve a minimum term of 10 years. They are then eligible to apply for parole. Eligibility to apply for parole does not mean that a person will automatically be released. The Parole Board is required to consider the safety of the community and whether the convicted person would pose an undue risk upon release. Even when released on parole, a person sentenced to life imprisonment remains subject to that sentence for the rest of their life, and may be recalled to prison. By contrast, a person sentenced to a finite term of imprisonment must serve a minimum period in prison of one third of that term. Moreover, once the finite term has expired, the person is no longer subject to recall

[5] So there is a big difference between a sentence of life imprisonment and a sentence of imprisonment for a finite term. Although, as Mrs Stevens’ has submitted, given Mr Johnston’s age and health conditions, some of those considerations may be academic, to use a not very appropriate term, nevertheless the difference between the two terms and the significance of life imprisonment for murder is the background to the law that I must apply today.

[6] On your behalf, Mr Johnston, Mrs Stevens has submitted that a life sentence would be manifestly unjust. She says that you should be sentenced to a finite term of imprisonment. The Crown does not accept that proposition. So that is the first decision I must make: whether you are to be sentenced to life imprisonment or not, and, if not, what the length of your sentence should be.

[7] If I do impose a life sentence, I must then decide the minimum period of that life sentence.

[8] That minimum term may not be less than 10 years and – as both Mrs Stevens and the Crown submit and I agree – in the circumstances of this case not more than

17 years. That term must be the minimum term I consider necessary to hold you accountable for what you did, to denounce your conduct, to deter you and others from committing the crime of murder and to protect the community from you.

Summary of Facts

[9] Now, as part of my consideration of the sentence, I need to record the factual basis involved. I base this on the statement of facts to which you pleaded guilty, supplemented by matters referred to in the various witness statements prepared for your case which I understand are not disputed.

[10] Mr Johnston you are now 67 years old. Last year you were 66 and your wife Lesley was aged 60 when you killed her. You had been married for some 43 years. You had two children, Owen, who I have already mentioned, and your daughter Richelle, who died of cancer some two years ago, on 14 March 2009.

[11] Your marriage appeared stable and satisfactory to those around you. More recently, and around the time she had left the family home, Lesley had spoken to acquaintances of her dissatisfaction with aspects of her marriage. It would appear that, from her point of view, events had come to a head over a recent weekend when you had together attended the wedding of a friend of hers.

[12] Be that as it may, what is very clear is that on Monday 28 February 2011

Lesley told you she was ending your relationship and leaving you. Around this time you had become aware that she had formed a new intimate relationship with a male friend. Later, on Monday 28 February, in circumstances which are unclear, you crashed your car at some speed into your own house. You were hospitalised for two nights. A medical examination at Dunstan Hospital showed a shadow or lesion on your lung. You were referred to Dunedin Hospital for further investigation on Thursday 10 March 2011.

[13] In the intervening days, Lesley had shared the evening meal which you had cooked. You had taken, as I see things, some comfort from the attention she had

paid to you in that way. At the same time, I do not think she had in any way changed her mind that she was leaving you and your relationship was at an end.

[14] On Thursday 10 March 2011 you travelled to Dunedin. The news was not good. The doctors found a tumour on your lung which they considered was most likely to be malignant. That day, Lesley discovered that a considerable amount of her clothing had been removed from her home in Roxburgh. She would, no doubt, have been concerned that you were responsible for that. Later that day and, as I understand it, against medical advice, you drove back to Roxburgh.

[15] On the morning of Friday 11 March you called at Owen and Jo-Anne’s house. You stayed there for five minutes. Before leaving, you asked Jo-Anne to tell Owen not to call round to see you that evening, but to come the following morning. Joe- Anne left for work shortly after you had gone, leaving the house unlocked. You returned to the house and there obtained the murder weapon, a .22 rifle, from your son’s locked gun cabinet. You went to the New Zealand Post Shop at Alexandra where you cashed up $49,000 worth of Bonus Bonds and arranged for the proceeds to be paid into your son’s bank account. You left your son a suicide note, the contents of which I will refer to later.

[16] Later that afternoon, and after work in fact, Lesley called at the family home. There was obviously some form of confrontation. Lesley was heard to say “If you’re going to shoot me, shoot me”, or words to that effect. These words were followed by a shot. Lesley then ran from the front door. You shot her a second time as she reached the bottom of the steps. She fell to the ground and died almost instantly.

[17] At this point you shot yourself in the chest. You were treated on the scene and flown to Dunedin Hospital. During emergency surgery you suffered a heart attack and, it was later discovered, a stroke. You were hospitalised for some time as a result of those injuries. When spoken to by the Police on 17 March 2011 you made no comment and gave no explanations for your actions. In fact, you said at the time and as I understand it continue to say, you have no recollection of these events.

[18] You have, since those tragic events of Friday 11 March, been the subject of a number of psychiatric assessments.

[19] Taken together, and as relevant today, I think those assessments can fairly be summarised as follows:

(a) You were brought up by your biological grandmother and grandfather together with one of their daughters, Beverley. You regarded Beverley as your sister growing up. She still refers to you as her brother. The psychiatric assessments talk of your having grown up in a supportive environment.

(b) You married Lesley when you were 21 and, as I have already mentioned, you have two children, Owen and Richelle.

(c) The psychiatric assessments all note that both you and Lesley felt Richelle’s death, from cancer some two years ago, very deeply. Richelle had returned to the family home in Roxburgh for the last two weeks of her life and had died there.

(d) Therefore, and by Friday 11 March 2011, the reports note that you were not only still dealing with the grief of Richelle’s death but that you were also under the additional stress of your recent lung cancer diagnosis, the understandable impact of Lesley’s decision to leave you and move out of the family home, and of her having established a new relationship and of you facing the prospect of your cancer on your own.

(e) Following your admission to hospital on Friday 11 March you were diagnosed as suffering from depression. You were treated with anti- depressants. You were also suffering from the effects of your heart injury, and the stroke that accompanied it. By the time you were discharged from Dunedin Hospital in July, you had finished all medical and psychiatric treatments, your mood was considered to be

stable and you were not considered a suicide risk. At that point, you

were bailed to your sister Beverley’s address.

(f) On subsequent outpatient appointments a psychiatrist found that you remained free of symptoms of depressive illness, although you continue to suffer from a tendency to tearfulness which is a consequence of the damage to your brain caused by the stroke.

[20] So they are the background reports. To assist me in determining sentence today, an updated report has been provided to me on your psychiatric condition on

11 March and I have also been provided additional reports which give me more general updates as to your physical and mental health.

[21] In terms of the matter Mrs Stevens has referred to and places most emphasis on, in a report prepared on 2 March 2012, that’s just a little while ago, Dr Parker, a psychiatrist, expressed the opinion that on 11 March you were suffering from severe psychological stressors and that it was reasonable to assume they had a negative effect on your mental state. You had also reported difficulties with sleeping. On that basis the doctor considers that you were suffering from a depressive illness, from depression, at that time of mild or moderate severity. Furthermore, the doctor thinks it is reasonable to assume that your ability to think rationally at the time of your offending was impaired to some extent by those factors. Dr Parker’s view was that that impairment, that mental impairment, was likely to have been one factor in causing you to act as you did.

[22] A number of updating reports have also been provided to me relating to your current health circumstances:

(a) your oncologist confirms that you have advanced lung cancer, that your chance of surviving five years is less than five per cent and that it is highly likely secondary cancers will manifest themselves in the near future.

(b) you continue to respond emotionally because of the effects of your stroke, particularly when confronted with events surrounding your wife’s death; and

(c) your GP confirms that, as a result of your stroke, you suffer from mild cognitive impairment and some reduced mobility.

[23] So all those matters, personal to you, are factors which I will consider today.

Pre-sentence report

[24] Your pre-sentence report records, as I have been told and as everyone is well aware, that you have no previous convictions, and that you are regarded as being at a low risk of reoffending.

[25] The impression overall you gave to your probation officer was that you saw yourself as a victim of circumstances, but you do express grief about the loss of your wife and remorse about the circumstances that surrounded her death.

Victim impact statements

[26] Victim impact statements, in addition to those read out in Court today by

Owen and Jo-Anne, have been provided by:

(a) Lesley’s sisters, Lavinia and Vanessa;

(b) Lesley’s brother David, and his wife Vivian; and

(c) Lesley’s friends and work colleagues, Diane Broad, Tania Blanchard

and Lisa McKenzie.

[27] A clear picture emerges of Lesley as a loving mother, grandmother and sister, and as a person with a bright and bubbly personality, vivacious and as described full of passion and enthusiasm for life. Lesley is greatly missed by her family and friends. At the same time, the manner of her death has – most naturally – had a big

impact on all those people, causing them shock and stress which many of them continue to suffer from.

[28] I have carefully considered all of the comments made in those victim impact statements when making my decisions today.

[29] As I said, your sister Beverley has written to the Court. She expresses her love for you, and the sadness she feels for you in the situation you now find yourself in.

[30] You have also written to Owen and Jo-Anne, apologising for your actions.

Sentencing discussion

[31] I turn now to the legal issues I must consider.

[32] Until 2002, a sentence of life imprisonment was mandatory for the crime of murder. There was no alternative. Now the law is that, where someone is convicted of murder, there is a presumption that the person will be sentenced to life imprisonment. That presumption can, however, be displaced if the Court considers that such a sentence would be manifestly unjust, given the circumstances both of the offence and of the offender.

[33] The Court of Appeal has emphasised that the injustice must be clear, as the use of the word “manifestly” shows and that such an injustice would occur is a conclusion likely to be reached in exceptional cases only. More recently, the Court of Appeal has described this discretion as being limited where the offending involves “the lowest end of the range of culpability for murder”.

[34] I accept also the written submissions of both Mrs Stevens and the Crown as to the basis upon which I am to approach that decision.

[35] Reflecting the strength of the statutory presumption in favour of life imprisonment in cases of murder there have – since 2002 – been only three cases in which that presumption has been displaced. Those cases involved what was

accepted as a mercy killing,[1] a woman who was suffering from what was described as battered wife syndrome,[2] and an offender suffering from a major psychotic illness.[3] In my view, the facts involved in each of those cases confirm the rarity of the situation where life imprisonment will constitute a manifestly unjust sentence for

murder.

[36] This morning in Court, and in her written submissions, Mrs Stevens has eloquently outlined the factual and medical background to the decision I have to make today, including the various psychiatric reports that have been provided. She has submitted that the untreated depression you were suffering from at the time you killed your wife, and the diagnosis of cancer you had received, together with your wife’s decision to leave you and, as you said, the growing realisation that you would face cancer on your own, put you under such a stress and was such an influence in your actions as to mean that it would be manifestly unjust to impose a sentence of life imprisonment on you. Mrs Stevens also refers to the absence of any need for the protection of the public, the deep remorse you have expressed in your guilty plea, your age and your poor health, as matters which further support that conclusion.

[37] I accept Mrs Stevens’ submissions that diminished mental capacity is a relevant factor. I note that overall she has submitted to me that the significance for you of a sentence other than life imprisonment is the recognition it would provide to you of the stresses you were suffering at the time and the influence they had on your actions.

[38] For the Crown, Mr Bates has submitted that the circumstances of your killing your wife do not come within those that would justify me deciding that the presumption of life imprisonment should be displaced. He notes that your offending was grave, that there was a high level of premeditation and that you showed callous disregard for your wife by shooting her twice in the back whilst she was running away. He also notes that grief, and moderate or even severe depression, are not uncommon factors in many types of offending and are insufficient to bring this case

_{within the small number of those which Parliament had in mind. This case was, he}

submitted, similar to numerous other cases which come before the Court where an offender forms the view that if they cannot live with the deceased person then no-one was going to. The killing of a partner in these circumstances was unfortunately not exceptional, and no manifest injustice was involved in the imposition of the presumed life sentence upon you.

[39] In terms of those submissions, and the legal principles I have outlined, I accept that you were suffering from the ongoing impact of Richelle’s death in March last year. I also accept that Lesley’s decision to leave you, combined with the diagnosis of lung cancer that you had just received and the prospect of your having to face that on your own, placed you under stress. I also acknowledge the very difficult health circumstances you currently find yourself in. You are facing terminal lung cancer, and continue to suffer the physical and emotional effects of your stroke.

[40] I cannot accept, however, that the impact your mental condition back in March 2011 on you and your actions at the time, or your health issues now, when taken either alone or in combination, mean that the imposition of a sentence of life imprisonment on you for Lesley’s murder would be manifestly unjust. As I think Mr Bates fairly submitted, the only assessment I can make of your actions is that you shot Lesley very much for the reasons you recorded in your suicide note. As you put it there, in your own words, to your son:

Your mother had only to say yes and this would have been avoided.

And again:

She would not look after me for the last months of my life so if I cannot have her

[her new partner] won't either.

[41] Your premeditation, that you set out to kill your wife – at least if she did not agree to return to you and look after you as you suffered from cancer, is evidenced by the way you got the murder weapon from your son’s house, transferred money from your bank account and left the suicide note. When your wife did not say yes, that she would return to you, you shot her twice. I accept, as I have said, those actions were influenced by the stress and depression, but they were not, in my view

of the magnitude envisaged by Parliament and as subsequently described by the Courts, that would make it right that you not receive a sentence of life imprisonment. By my assessment, your culpability for Lesley’s murder is not at the lowest level. That level has, as I have described, been associated with mercy killings, or where people have been subject to unbearable stresses. The stresses you faced were not, by my assessment, of that magnitude. In reaching that conclusion, I have paid particular attention to the evidence of Dr Parker. As I have already recorded, Dr Parker’s view was expressed in terms that those stress factors, your depression at the time and the added pressure of your cancer diagnosis and of your wife’s decision to leave you, were one factor in causing you to act as you did. They would, by my assessment of the law, need to be more significant than that to make a sentence of life imprisonment manifestly unjust.

[42] I also recognise the considerable health difficulties you currently face. Sad as they may be, they do not alter my fundamental assessment of your culpability for your actions in killing your wife and, therefore, of the appropriateness here of the imposition of a sentence of life imprisonment. In my view, that sentence is required particularly to denounce your conduct and to hold you accountable for what you did.

[43] Therefore, Mr Johnston, I sentence you to life imprisonment.

[44] I must now decide the minimum term of imprisonment that you should serve before being eligible to apply for parole. I accept in the circumstances that you face that that may be a somewhat remote possibility, but it is nevertheless necessary that I undertake this part of the sentencing exercise.

[45] The Crown has suggested that a term of 11 years is appropriate, pointing to the nature of your actions, and then allowing some mitigation for your guilty plea and other relevant factors. Here I accept there are aspects of your actions, that is what you did, that could result in the imposition of a minimum term of imprisonment greater than 10 years. By the same token, and looking at your personal circumstances in the round – including the acceptance that I have of the degree of impact your condition had on you, and your current health circumstances, I have concluded that a minimum term of imprisonment of 10 years is appropriate.

[46] I comment finally to those in Court today. As I am sure you are well aware – no sentence for murder can cure the sadness and the suffering that a murder brings about. Nor can it bring any great sense of peace to those who grieve for the victim. It is, rather, the response of our justice system which here in very tragic circumstances – as in all areas – tries to do the best it can to deal with the complexities of human nature and of human behaviour.

[47] Mr Johnston, would you please stand while I formally sentence you.

[48] Mr Johnston, for the crime of the murder of your wife Lesley Ann Johnston, you are sentenced to life imprisonment and I order that you serve a minimum term of

10 years’ imprisonment.

[49] You may stand down.

“Clifford J”

Solicitors:

Crown Solicitor, Dunedin ([e-mail])

A Stevens, barrister, Dunedin ([e-mail])

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[1] _{R v Law (2002) 19 CRNZ 500.}
[2] _{R v Wihongi [2011] NZCA 592.}
[3] R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011.