R v Johnston [2012] NZHC 473 (20 March 2012)

High Court of New Zealand

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R v Johnston [2012] NZHC 473 (20 March 2012)

Last Updated: 30 March 2012

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

_{PUBLICATION OF NAME OF PRISONER PERMITTED}

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-092-9763 [2012] NZHC 473

THE QUEEN

v

BRIAN JOHNSTON Charges: Rape (7); Injuring with intent to injure (3) Plea: Not Guilty

Counsel: SNB Wimsett for Crown

MF Tuilotolava for Prisoner

Sentenced: 20 March 2012

Rape – 9 years’ imprisonment on each count

Injuring with intent to injure – 3 years’ imprisonment on each count

(All terms concurrent)

_{SENTENCING NOTES OF BREWER J}

SOLICITORS

Meredith Connell (Auckland) for Crown

_{Mary Tuilotolava (Manukau) for Prisoner}

R V JOHNSTON HC AK CRI-2009-092-9763 [20 March 2012]

Introduction

[1] Mr Johnston, the jury found you guilty of 10 counts – seven were of rape, four of those representative; and three of the counts were of injuring with intent to injure, and two of those were representative counts. The physical violence, according to the evidence, was frequently linked with the sexual violence. Your offending took place over a period of up to seven years, between about 1972 and

1979. Your victim was aged about nine when the offending began and about 16 when the offending ended.

Facts

[2] I will refer to the facts very briefly. In doing so, I take account of the verdicts of the jury, as I must, and also of my findings on the facts when considering the ambit of the representative charges.

[3] Your victim came to live in your home as a nine year old because her father had died and you were living with her mother. You were a stranger to her and so, to all intents and purposes, was her mother. You raped her on or about the first night that she spent in your home, causing her to bleed from her vagina. When she complained to her mother, you called her a liar and you physically assaulted her causing her injury. This began a pattern of offending by you against your victim for the next six or seven years.

[4] The effect of your offending on your victim’s life was very severe. Her mother, for whatever reason, totally failed to protect her. Your victim tried to complain and the authorities did take some interest but were easily deflected by you and by her mother. To the outside world of that time, your victim was a very naughty girl and found to be unmanageable. Court orders were obtained and your victim became a Ward of the State, returning to your home relatively infrequently.

[5] Your victim remembers this period as being one of endless recurrences of rapes and beatings. For the purposes of the representative charges of rape on which you have been convicted, I accept to a large extent your lawyer’s submissions. I am

going to take it that over the period of her association with you, you raped and beat your victim on a regular, but by no means daily, basis. I have no doubts as to the genuineness of your victim’s memories of this period. However, I find there is a reasonable possibility that, because of your victim’s close association with the authorities in later years, a frequent pattern of observable physical abuse would have led to further inquiries.

Penalties

[6] At the time you committed the rapes, the maximum sentence was 14 years’ imprisonment. The maximum penalty for injuring with intent to injure was, and is, five years’ imprisonment.

[7] In assessing your sentence, I have to look at the sentencing regime that applied in the late 1970s and early 1980s. That does not mean that I try to put myself in the position of a Judge at that time. It means that I have to look at the sentencing regime of that era and try to achieve consistency with it.[1] I will approach this by fixing a starting point of imprisonment based upon the sentencing levels of the relevant time. This will recognise the aggravating features of the case. I will then look to see if any reduction should be made from the starting point in order to take account of any mitigating features.[2]

[8] In approaching your case, Mr Johnston, I find that the principal purposes to be achieved in sentencing are to hold you accountable for the harm you have done to your victim and, on behalf of society, to denounce your behaviour. I will keep in mind, particularly considering your age, the need to impose the least restrictive outcome appropriate.

[9] The aggravating features of your offending are obvious. Your victim was extraordinarily vulnerable, your attacks on her were gross breaches of trust, and the offending was both premeditated and prolonged for a period of years. Of particular

_{significance is that your use of physical violence was often connected to the rapes.}

If your victim complained to her mother, she was called a liar and she would be beaten. The effects on the ongoing life of your victim are set out in the victim impact statement. As is hardly surprising, her treatment by you has gravely damaged her ability to form positive relationships with her life partners and has impacted on her ability to care for her children and grandchild. She does not trust. She is perpetually suspicious. She finds it very difficult to express affection.

[10] I have thought about the cases cited to me by counsel for the Crown and by your counsel. They show in general that the Courts back then regarded the sexual abuse of children very seriously. The Courts emphasised the need to denounce such offending and to deter the offender and others from similar offending. The Courts were not slow to pass sentences close to the maximum. The Court of Appeal has recognised that at the relevant time the single rape of a child or girl would probably

attract a sentence of four to seven years’ imprisonment.[3] Cases involving the sexual

violation of multiple victims could attract sentences of 12 years’ imprisonment. Your case does not include multiple victims and that is a significant difference in the cases cited to me. However, against that is the length of time over which your abuse of this victim occurred.

[11] In your case I take the lead offence as being count 1 in the indictment, which is the first time that you raped your victim. I adopt a starting point of 11 years’ imprisonment and in doing so I stress the age of your victim, the number of the rapes, the length of time over which the offending persisted, the violence associated with the rapes and the profound effect your offending has had on your victim both in her life at that time and subsequently.

Mitigating factors

[12] I now turn to consider mitigating factors. It has been submitted that I should reduce the starting point to take into account your lack of convictions in the very lengthy period following the offending and the present date. I am not going to give

_{any discount for this factor. Two of the Crown witnesses gave evidence of your}

sexual abuse of them. Some of that abuse was said to significantly post-date the charges for which you are being sentenced today. Further, there was evidence that you were tried for similar offending against a daughter of one of the Crown witnesses, offending for which you were acquitted. The offending alleged in that case also significantly post-dated the offending in this case. Let me be clear: the evidence to which I have referred cannot be used to aggravate your sentence in this case. I have put it entirely to one side in calculating the starting point. However, I think it would be a cruel fiction to now treat you as a person whose character since the offending has been good and to treat you as a person in respect of whom there has been no concern for the safety of others.

[13] However, I will take into account your age and your physical health. I will also take into account Ms Tuilotolava’s advice that you served three months in custody in Australia while the extradition proceedings were afoot. You are 71 years old and you are in ill health. I will give you the maximum discount I can to reflect these factors, the fact of your incarceration during the extradition proceedings and the need to impose the least restrictive sentence on you which I can. I will reduce the starting point of 11 years’ imprisonment by two years, meaning an overall sentence of nine years’ imprisonment.

Sentence

[14] On count 1 in the indictment, and on all the subsequent counts of rape, I sentence you to nine years’ imprisonment. On the counts of injuring with intent to injure, I sentence you to three years’ imprisonment. All of the sentences will be served concurrently with each other, meaning that the effective term of imprisonment is nine years.

[15] In view of your victim’s application with regard to name suppression, I lift

_{any suppression of your name. Stand down.}

Brewer J

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[1] _{T v R CA463/97, 15 June 1998.}
[2] R v R CA244/04, 2 November 2004.

[3] R v Elwin CA290/93, 10 August 1994.