IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000089 [2014] NZHC 2451

BETWEEN	JAMES GEORGE LATHAM-
JOHNSTONE Appellant	

AND	
DEPARTMENT OF CORRECTIONS Respondent	

CRI-2014-409-000090

BETWEEN	JAMES GEORGE LATHAM- JOHNSTONE
Appellant

AND	DEPARTMENT OF CORRECTIONS Respondent

Hearing:	2 October 2014	

Appearances:	
L Denton for Appellant
M A Elliott for Respondent	

Judgment:	
6 October 2014	

JUDGMENT OF GENDALL J

The events leading to this appeal

[1]	This is an appeal against aspects of a sentencing decision given by Judge

Couch in the District Court on 20 August 2014.

[2]	On 26 March 2013 Mr Latham-Johnstone had been sentenced in the District

Court to 18 months intensive supervision.  The genesis of this conviction is set out in

Judge Couch’s sentencing notes,1 and I need not repeat it here.  On 19 March 2014,

1	Department  of  Corrections  v  Latham  Johnstone  DC  Christchurch  CRI-2014-009-3156, 20

LATHAM-JOHNSTONE v DEPARTMENT OF CORRECTIONS [2014] NZHC 2451 [6 October 2014]

around 12 months into that sentence, he breached a condition of that sentence in contravention of s 70A(a) Sentencing Act 2002 by failing to report to a probation officer as directed and to attend a directed Stopping Violence programme.

[3]       As a result of this breach Ms Vanessa Cottle, a probation officer, filed an application that the sentence of Intensive Supervision be cancelled on the basis that Mr Latham-Johnstone is unable to comply, or has failed to comply, with conditions of the sentence.2     Essentially, the basis for this application was that Mr Latham- Johnstone has a history of non-compliance and that, despite warning, he continued to fail to comply with standard and special conditions.

[4]       After reviewing and discussing the information put before him in sentencing, Judge Couch made the following observation:3

As well as avoiding rehabilitation you have demonstrated a serious disregard for successive Court orders.  The time has come when that can no longer be tolerated.  The only means left to bring home to you the consequences of your conduct is a short sentence of imprisonment.

He then imposed the following sentence:4

On the charge of breach of intensive supervision therefore you will be sentenced to imprisonment for a period of two months.  Leave to apply for substitution of sentence is denied.  There will be standard release conditions and special release conditions until six months after the sentence expiry date as per the pre-sentence report.

The sentence of intensive supervision is cancelled and there will be no re- sentence on the charge for which that was imposed.

The material before the District Court

[5]       The material before the Court, for what was a comparatively minor matter, was reasonably voluminous.  I discuss the pertinent points from that material below.

[6]       Department of Corrections advice:  This report was thorough and addressed the following issues concerning Mr Latham-Johnstone:

August 2014 at [2] – [4].
2	Sentencing Act 2002, s 54K(1)(a),
3	Latham Johnstone, above n 1, at [7].
4	At [8] – [9].

(a)       Living situation:  He lives in a boarding type situation at present.  His drug use and behavioural issues have seen him move house no less than 24 times since 2011.

(b)       Relationships:       He   discloses   very   little   about   his   personal relationships.  This is of concern given his domestic violence issues. He has a very volatile relationship with his mother.

(c)       Lifestyle:  There is little structure in his life, keeping whatever hours he sees fit.

(d)       Substance use:  He has well documented drug and alcohol abuse.  He has an inability to maintain treatment, and a repeated failure to engage in treatment, despite being afforded multiple options to do so.

(e)       Violence: Assessed as having a high risk of harm from violence.  This view is shared by police and other agencies.  He has failed to receive treatment for his violence related issues, including domestic violence, largely because of the barrier his substance abuse imposes.

(f)       Emotional health:   Has a well-documented history of mental health issues.  However, there are concerns his mental health issues are used purposively as a barrier against engaging with his sentences.   His recreational drug use impedes the effectiveness of his prescription medication.  His claims regarding the extent to which he is affected by his mental health issues should be treated with caution.

(g)       Risk of self-harm:  He has had suicidal ideations, but are not presently extant.    However,  he has  alluded  to  the  fact  that  they will  again become alive if he is sentenced to a period of imprisonment.

(h)	Remorse:  Shows minimal remorse for his actions.

(i)        Electronic monitoring:   Unsuitable given his quasi transient nature since at least 2011.

(j)        Ability to comply:  The report traverses this issue in some detail, citing frequent examples of his inability to comply.   The crux of the discussion is that he has an almost complete inability to comply with requirements of sentences.

[7]       Department of Corrections oral report:  this report follows the other report referenced above, and supplements it.   It records that since that report has been provided to him, Mr Latham-Johnstone has been preparing a case to establish his unsuitability for imprisonment.  He has been evicted from three addresses, once with police assistance following drug use and related damage.  The report says he is going to great lengths to avoid imprisonment, such as texting staff in an endeavour to manipulate them and to present himself as mentally unwell.   Imprisonment is still recommended however.

[8]       Canterbury District Health Board letter:  the psychiatric consultation service was asked to see Mr Latham-Johnstone on 19 August 2014 following concerns about low mood and suicidal thoughts.   He also described ongoing anxiety.   The report writer stated that it was clear that Mr Latham-Johnstone demonstrated low mood secondary to the anxiety, but that alcohol and drugs contributed to this.  A referral to alcohol and drug services was made.

[9]       298 Youth Health letter:  this letter records that Mr Latham-Johnstone suffers from chronic post traumatic stress disorder “which means that he is constantly anxious and can often be overwhelmed by the anxiety.”   In terms of the impact a prison sentence would have on Mr Latham-Johnstone, the writer said:

A prison sentence  would be  like  a sentence  of  death  for someone  with [Mr Latham-Johnstone’s] disability.  Expecting him to attend group therapy is equivalent of asking a wheel chair confined person to attend a meeting on the 8th floor when there is no lift.

[10]     Convictions:   of relevance to this appeal is that Mr Latham-Johnstone has five convictions for various non-compliance offences.

Legal principles governing an appeal

[11]     I turn now to the legal principles governing an appeal.   Section 250 of the Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court. The section provides:

(2)	The first appeal court must allow the appeal if satisfied that—

(a)	for  any  reason,  there  is  an  error  in  the  sentence imposed on conviction; and

(b)	a different sentence should be imposed.

[12]     The Court of Appeal has since confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.  Not every error in a sentence will provide the foundation for a successful appeal.  The types of error that are contemplated by s  250(2)(a) of the Criminal Procedure Act 2011 include:5

(a)       The  section  reflects  a  synthesis  or  rationalisation  of  the  previous Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.

(b)       The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed.

(c)       The practical effect of preserving the previous approach is that the appeal  court  does  not  start  afresh  nor  simply  substitute  its  own opinion for that of the original sentencer. Rather, it must be shown that  there  was  an  error  “whether  intrinsically,  or  as  a  result  of
additional material submitted” on appeal.6    If there is an error of the
requisite  character,  the  court  will  then  form  its  own  view  of  the appropriate sentence.

5	Tutakangahau v R [2014] NZCA 279 at [26]-[36].
6	R v Shipton [2007] 2 NZLR 218 (CA) at [139].

(d)       In assessing whether an alleged error is of the requisite character, it will be helpful to consider whether the error is material.

(e)       Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence, those concepts are long- standing and should continue to be utilised when considering s 250(2).

(f)       The  focus  in  sentence  appeals  remains  on  whether  the  sentence imposed is within range rather than the process by which the sentence was reached.  In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).

The basis for the appeal

[13]     This appeal was originally advanced on two grounds:

(a)       Imprisonment  should  not  have  been  imposed  having  regard  to

Mr Latham-Johnstone’s personal circumstances.

(b)       Judge   Couch   erred   in   imposing   post-release   conditions   when cancelling the sentence of intensive supervision.

[14]     At the hearing counsel for Mr Latham-Johnstone noted that he has already served the term of imprisonment and accepted therefore that his appeal against that part of his sentence would be of no practical effect.  He therefore abandoned the first aspect of his appeal.  However, he proceeded with the latter part of his appeal.  The basis for this was summarised in written submissions in the following terms:

The appellant appeals on the basis that the District Court Judge erred in imposing release conditions when the sentence of intensive supervision was unmanageable due to his mental health difficulties.

A short term of imprisonment

[15]     For completeness, I note here that I am in agreement with Judge Couch that, in light of Mr Latham-Johnstone’s non-compliance, a short term of imprisonment

was the only appropriate method of sheeting home the consequences of that non- compliance.   If  I had  been still required to do so,  I would have no  qualms in upholding this aspect of the sentence.  However, as that aspect of the appeal has been effectively abandoned, I turn to consider the release conditions component of the appeal.

The release conditions

[16]     The written submissions filed by Ms Denton for Mr Latham-Johnstone were directed at that part of the sentence relating to the imposition of release conditions, both standard and special.  As to the legal position on this, Ms Denton commented that  “[t]here  appears  to  be  no  case  law  on  the  imposition  of  standard  release
conditions.”  However, she did cite a decision of the Court of Appeal in R v Janssen,7

in which the following comment was made in relation to special release conditions:8

The discretion [to impose release conditions] must also be exercised consistently with the principles in s 8 of the Sentencing Act, the first five of which (those in paragraphs (a)–(e)) require that any condition imposed relate explicably   to   what   has   been   described   succinctly   as   “the   precise criminality”: R v Meroti CA392/99, 26 October 1999 at [6], quoting R v Duffy  (1994)  15  CR  App  (s)  667  at  681.    And  that  must  include  an assessment of the effect of the offence on any victim: s 8(f).

[17]     The Court of Appeal continued that because the special release conditions derive from s 15(3) of the Parole Act 2002, s 7(2) of that Act “has an implicit and helpful place”.9    That requires that any condition imposed ought not to be “more onerous, or last longer, than is consistent with the safety of the community”.   Ms Denton sought to argue that these statements apply to standard release conditions by analogy.   I agree.   To my mind the Court of Appeal decision is stating that the
purposes and the principles of the Sentencing Act 2002 should apply to decisions made under s 93 relating to the imposition of release conditions.   As a matter of
logic, these will always be germane to a decision made under that Act.

7	R v Janssen [2007] NZCA 450.
8	At [15].
9	At [17].

[18]     The standard release conditions are those set out in s 14 of the Parole Act

2002.  The special release conditions are set out in the pre-sentence report, which I

take to be a requirement that Mr Latham-Johnstone:

(a)       Attend and complete a stopping violence programme as directed by and to the satisfaction of the Probation Officer and Programme Provider.

(b)       Attend and complete any recommended intervention for alcohol and drug use to the satisfaction of the Probation Officer.

[19]     There cannot, in my view, be any meaningful objection to the imposition of the standard release conditions on Mr Latham-Johnstone.   Given Mr Latham- Johnstone’s substance abuse, his willingness to resort to violence and, to a lesser extent, his mental health issues, the standard release conditions as I see it will enable him to be monitored, will ensure that he can be directed not to live in inappropriate
housing,10 and that he not be employed in inappropriate roles,11 that he not associate

with  inappropriate  persons,12    and  that  he  take  part  in  a  rehabilitative  and reintegrative needs assessment.13

[20]     All  of  these  conditions,  supplemented  by  the  remainder  of  the  standard release conditions, in my view help to achieve the purposes and principles of the Sentencing Act.  In particular, I see accountability,14 responsibility,15 denunciation,16 deterrence,17     and   rehabilitation   and   reintegration18     to   be   relevant   in   the circumstances prevailing here.

[21]     In any event, a review of Ms Denton’s submissions leads me to conclude that the  primary  objection  on  this  appeal  is  the  imposition  of  the  special  release
conditions,  given  what  she  maintains  is  his  chronic  anxiety  condition  and  his

10	Parole Act 2002, s 14(1)(f).
11	Section 14(1)(g).
12	Section 14(1)(h).
13	Section 14(1)(i).
14	Sentencing Act 2002, s 7(1)(a).
15	Section 7(1)(b).
16	Section 7(1)(e).
17	Section 7(1)(f).
18	Section 7(1)(h).

difficulty in keeping appointments and working in group situations.   On all these aspects, I make the preliminary observation that it does not seem to be contested by anyone that Mr Latham-Johnstone does to some degree have mental health issues. However, there is near unanimous agreement that these mental health issues are exacerbated by his abuse of both illicit drugs and alcohol.  In turn it seems apparent that  his  violent  tendencies  are  increased  by  his  mental  health  issues  and  the substance abuse simpliciter.   In fact, the pre-sentence report made the following observation:

Shortly after his assault on his partner in October 2011, East Sector Adult Community Psychiatric Service confirmed that they were responsible for his medication and that as a result of discussions within their agency, an assessment had been made that his domestic violence behaviour was not being driven by specifically mental health issues.  That agency saw his anti- social behaviour  being linked  to  his substance abuse  (alcohol and other drugs) and personality defects.

[22]     It is clear that a primary need for Mr Latham-Johnstone is to address his willingness to resort to violence.  However, it is apparent that a significant barrier to addressing that issue is  his substance abuse.   Moreover,  to whatever  extent his mental health issues play into his violence risk, as I have recorded above, those issues are exacerbated by his substance abuse.  Therefore, it seems apparent that the root cause of Mr Latham-Johnstone’s problems is substance abuse.   The second special release condition imposed seeks to put in place steps to help Mr Latham- Johnstone overcome these problems.  In this respect the following observation in the pre-sentence report is relevant:

It has always been the intention that any Stopping Violence programme would be done once the barrier of substance abuse was removed.

(emphasis added)

[23]     Once that root cause is addressed, it will enable Mr Latham-Johnstone to engage in earnest to address his violent tendencies, which must be of significant concern to all including his victims, and also allow him to properly treat his mental health issues.   This two-staged treatment process would best place Mr Latham- Johnstone for a meaningful recovery and subsequent rehabilitation and reintegration. Therefore, I consider that these special conditions are referable both to the non- compliance offending, but also to the violence which is the fundamental genesis of

Mr Latham-Johnstone’s immersion in the criminal justice system.  Moreover, I am of the view they meet all of the factors set out in s 93(3) Sentencing Act 2002, and are commensurate with the general purposes and principles of the sentencing.

[24]     In reaching this conclusion I note the Corrections Department comments that Mr Latham-Johnstone seems to hyperbolise his mental health symptoms in a misguided  endeavour  to  garner  sympathy  for  his  non-compliance  and  to  seek reduced sentences.  He has had, and now once again has, real opportunities to engage his substance abuse and to significantly ameliorate those mental health issues, and all other consequences which flow from the abuse.  While mental health concerns can be a relevant factor in the sentencing exercise, they will not be entertained as a mere excuse, particularly where it is within Mr Latham-Johnstone’s grasp to do something to diminish the role those issues may play in his offending.

[25]     I am  reinforced  in  the views  I have reached  by the fact  that  no  further sentence was imposed on Mr Latham-Johnstone in respect of the offence for which he was sentenced to intensive supervision.

Outcome

[26]     For all these reasons, the present appeal must be dismissed and an order to this effect is now made.

...................................................
Gendall J

Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co, Christchurch