Aitchison v The King
[2024] NZHC 80
•5 February 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-264
CRI-2023-409-265 [2024] NZHC 80
BETWEEN JESS DYLAN AITCHISON
Appellant
AND
THE KING
Respondent
Hearing: 1 February 2024 Appearances:
C G Nolan for the Appellant
B W D Alexander for the Respondent
Judgment:
5 February 2024
JUDGMENT OF HARLAND J
Introduction
[1] Jess Aitchison appeals against a sentence of seven months’ home detention and an order to pay reparation of $2,213.95 imposed in the District Court1 in respect of four charges of breaching a protection order (two of those being representative charges)2, one charge of common assault3, one charge of wilful damage4 and one charge of unlawfully taking a motor vehicle.5 He contends that the sentence imposed was manifestly excessive and the least restrictive sentence that ought to have been imposed was one of community detention and intensive supervision.
1 R v Aitchison [2023] NZDC 27347 [Sentencing notes].
2 Family Violence Act 2018, ss 90(a), 9 and 112(1)(a); maximum penalty three years’ imprisonment.
3 Crimes Act 1961, s 296; maximum penalty one year of imprisonment.
4 Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment.
5 Crimes Act, s 226(1); maximum penalty seven years’ imprisonment.
AITCHISON v R [2024] NZHC 80 [5 February 2024]
[2]The Crown opposes the appeal.
The offending and background matters
[3] The appellant is now 33 years of age. Prior to these charges being laid, he had not appeared before the Court and therefore appeared for sentence as a first-time offender. His offending occurred in the context of the relationship with his former partner ending. She is the victim of his offending.
[4] The appellant and his former partner had been in a relationship for one and a half years. On 27 January 2023, she obtained a temporary protection order against the appellant.
[5] There is reference in the Police summary of facts and the District Court judgment to the appellant insisting that the victim apply to the Court to discharge the protection order and that, if she did not do so by 2 February 2023, he would “air all her dirty laundry and dirty secrets” and “take everyone down”. The victim took these threats seriously and applied to discharge the order on 24 February 2023. I mention these matters by way of background. They are not the subject of specific charges but they do provide a background and context to what happened.
[6]The temporary protection order was discharged on 19 April 2023.
[7] In the afternoon of 3 February 2023, the appellant and his former partner were travelling in her vehicle along Ferry Road. The appellant’s former partner was driving the vehicle. The appellant formed the view that the victim was recording him on her phone. He snatched her phone, abused her and struck her about six times on both arms with his forearm, causing minor bruising. He got out of the vehicle, smashed her phone and took her sim card from it. The appellant then got into the vehicle and drove off, leaving his former partner stranded on Ferry Road with no phone.
[8] Charges were laid in the Christchurch District Court on 6 February 2023. They included a charge of breaching a protection order by psychologically abusing his former partner on 2 February 2023 in relation to his attempts to get her to withdraw or apply to discharge the protection order. There were also the charges arising from what
happened on 3 February 2023, being the charges of unlawfully taking a motor vehicle, wilful damage (smashing the phone), common assault (striking the victim about six times on both arms) and breaching a protection order by physically abusing the victim.
[9] On 17 April, the appellant called his former partner, using no caller ID, and engaged in a 16-minute conversation where he threatened self-harm if she did not come back to him. Despite being told to stop calling her, the appellant called her a further five times and sent her a message on Facebook. The offending on 17 April 2023 resulted in two charges of breaching the protection order by psychologically abusing the victim (threatening to self-harm) and contacting her by phone and via Facebook Messenger.
[10] The April offending is aggravated by the fact that, following the appellant’s first appearance in Court on 6 February 2023 in respect of the charges arising from the events that occurred on 2 and 3 February 2023, he was remanded on bail and subject to various conditions including that he was not to associate with the victim and not to threaten or use violence against any person.
[11] The file also reveals other breaches of the non-association condition. On 14 February 2023, the appellant was remanded in custody following a breach of this condition. He was subsequently granted electronically monitored (EM) bail on 19 March 2023 which also included a similar condition.
[12] After the calls that were made on 17 April 2023, the appellant was arrested in breach of his bail conditions and was remanded in custody. There was an appeal against that decision which was dismissed and a further application for EM bail which was granted on 14 June 2023. This also was subject, among other things, to a non- association condition in respect of the victim as well as a condition that the appellant was not to threaten or use violence.
[13] After this remand, the appellant appears to have complied with his conditions. He has also undertaken therapeutic intervention, the details of which will be traversed shortly.
The District Court decision
[14] After referring to the charges and the facts, which he described as regrettable, the Judge referred to:
(a) the reports he had received from Corrections, alcohol and other drug assessment and treatment services, and a report prepared pursuant to s 27 of the Sentencing Act 2002; and
(b) the time the appellant had spent in custody (about five months) and the fact that the appellant had been on EM bail on several occasions during the lengthy remand period, including referring to his compliance with the conditions associated with the grant of EM bail on 14 June 2023.
[15] The Judge identified the factors contributing to the appellant’s offending as being his alcohol use, the use of intimidation and violence, relationship difficulties and what were described as “offence-supportive attitudes”. He noted that the appellant presented as remorseful and had engaged with several programmes and initiatives to address the underlying causes of his offending, such as Stopping Violence services and He Waka Tapu, the latter being a kaupapa Māori organisation based in the South and Chatham Islands which uses tikanga to assist clients and which runs alcohol and drug residential programmes and support groups, among other things. The appellant had engaged in a harm reduction programme and had attended regular relapse prevention sessions, individual weekly sessions with Alcoholic Anonymous as well as counselling to address past trauma.
[16] The assessment reports provided to the Court suggested the appellant was motivated and able to comply with community-based sentences and to pursue a sober lifestyle. However, the Integrated Safety Response Family Harm Team noted a propensity for the appellant to ignore sanctions.
[17] The Judge referred to the appellant’s lack of any relevant criminal history and noted that he had “done more than most to promote [his] rehabilitation”.6
6 Sentencing notes, above n 1, at [23].
[18] The Judge’s approach to sentencing was to first adopt a starting point for the charge of unlawfully taking a motor vehicle. In respect of this, he considered a term of imprisonment of one year and six months was appropriate. To that, he uplifted the starting point by a further one year and six months to take into account the assault, wilful damage and breaches of protection order charges.
[19] In terms of the appellant’s personal circumstances, the Judge allowed a 20 per cent discount to reflect the appellant’s guilty plea, a further 10 per cent credit for his rehabilitative efforts and lack of relevant criminal history, and a further 10 per cent credit for background factors. In total, 40 per cent was deducted from the starting point was allowed for mitigating matters. This resulted in an overall end sentence of one year and ten months’ imprisonment.
[20] The Judge then addressed two matters which he considered to be important. The first was the sentencing principle requiring him to impose the least restrictive sentence that is appropriate in the circumstances, recognising comparable cases and reflecting sentencing objectives. The second was the principle that it is generally desirable to keep people in the community rather than imprison them if the relevant sentencing objectives can be achieved by something less than imprisonment.
[21] The Judge then took into account the time spent by the appellant on EM bail and applied a credit of three months for that. He then noted that the five months the appellant had spent in custody should also be taken into account if the appellant was not sentenced to a term of imprisonment.
[22] With these deductions, the end sentence of imprisonment was a term of one year and two months.
[23] The end sentence was then converted to seven months’ home detention because the Judge decided that a less restrictive sentence than imprisonment could achieve the necessary sentencing objectives engaged in the appellant’s case. He considered that took into account the seriousness of the offending, the impact of the offending on the victim who he noted was present, and also reflected the rehabilitative steps the appellant had taken. The Judge also imposed standard and special post-detention
conditions for a period of six months. The reparation I have referred to above was also ordered.
Principles on appeal
[24] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should have been imposed.7 As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the sentencing principles engaged in the case before it.9
Submissions
The appellant’s submissions
[25] Mr Nolan submitted the starting point taken by Judge Kellar was excessive. Citing Wood v New Zealand Police10 and Skeens v Police11, Mr Nolan submitted that a starting point of 12 months’ imprisonment would have been more appropriate for the charge of unlawfully taking a motor vehicle. Mr Nolan noted that the Crown suggested a starting point of 30 months’ imprisonment initially for all offending.
[26] Citing McMillan v R12 and Berkland v R13, Mr Nolan submitted that a 15 per cent credit would have been more appropriate for background factors based on the premise that, while 30 per cent is “at the higher end”, 15 per cent is “much more usual when a causal link is made out”.
7 Criminal Procedure Act 2011, ss 250(2) and 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
10 Wood v Police [2018] NZHC 1629.
11 Skeens v Police [2022] NZHC 875.
12 McMillan v Police [2022] NZCA 128.
13 Berkland v R [2022] NZSC 143, 1 NZLR 509.
[27] Noting that the appellant has no relevant previous convictions, expressed remorse, engaged in treatment, has support in the community and has spent time in custody and on remand, Mr Nolan submitted community detention and supervision (or intensive supervision) were the least restrictive sentences in the circumstances.
The respondent’s submissions
[28] At sentencing, Mr Alexander for the Crown submitted, and repeated on appeal, that the following aggravating factors were associated with the unlawful taking charge, the significant breach of trust (the vehicle was left idling while the victim called 111), the value of the car ($20,000), the family violence context (the taking occurred in the context of an assault) and the impact of the offending on the victim. Referring to Skeens, Mr Alexander submitted the 18-month starting point was justified.
[29] Despite accepting that some of the charges which were addressed in the uplift are relevant to the starting point for the charge of unlawfully taking a motor vehicle, the Crown submitted an uplift was nonetheless still required because protection orders must still be dealt with visibly and firmly, simply by reason of them involving breach of a Court order.14 Mr Alexander submitted the global starting point of three years was appropriate for this offending.
[30] Citing Solicitor-General v Heta15, Poi v R16 and the circumstances of the defendants in those cases (leading to 30 per cent and 20 per cent background credits respectively), Mr Alexander submitted that the 20 per cent discount for personal factors was generous, noting the partial displacement of any causative contribution evidenced by the appellant’s lack of previous convictions.
[31] Mr Alexander submitted the Judge expressly considered his obligation to impose the least restrictive sentence possible and justifiably arrived at home detention as the appropriate outcome. He noted that:
(a) the statutory maximum period of community detention is six months;
14 Kumar v Police [2015] NZHC 1575 at [41].
15 Solicitor-General v Heta [2018] NZHC 2453.
16 Poi v R [2020] NZCA 312.
(b) home detention offers the appellant a high level of rehabilitative support at home, I infer akin to the support he would received on a sentence of intensive supervision;
(c) the particular need for deterrence and denunciation to be reflected in the choice of end sentence due to the persistence and violence demonstrated by the appellant; and
(d) the significant harm caused by his offending.
[32] Mr Alexander submitted the sentence was within range and appropriate and that any conversion to community detention and intensive supervision would result in a manifestly inadequate sentence.
Analysis
[33] In my view, no issue could be taken with any of the discounts the Judge allowed for mitigating factors. Having read the appellant’s reports, I consider that, while the discounts were eminently justified, they were also fair. I am not persuaded there should be any further increase in the deductions applied. Mr Berkland was granted a credit of 10 per cent for his deprived background and the role of addiction in his offending as well as ten per cent for his rehabilitative efforts.17 Comparing the Mr Berkland and the appellant, it is difficult justify any higher credit than that which was granted in this case by the Judge.
[34] The key issue in this case is whether the global starting point of three years was excessive.
[35]I address the cases cited to me by way of comparison.
[36] Skeens involved a defendant exploiting a friend’s trust to steal their vehicle, leading to that vehicle being swapped and then severely damaged in a road accident. The Judge adopted a 12-month starting point, upheld by this Court. Starting points of
17 Berkland, above n 13, at [162].
between 12 and 15 months were held to be “common” by Walker J for a charge of unlawful taking a motor vehicle.18
[37] In Edwards v Police, the defendant stole a car, fled police, crossed the centre line several times, drove the wrong way up an off-ramp and reached speeds of 120- 130 kmph.19 The defendant was disqualified at the time and breached conditions of home detention. He received a starting point of 15 months’ imprisonment with a three- month uplift for the balance of the offending.
[38] Starting points of 18 months have been considered appropriate by this Court if there are significantly aggravating features present, with evading police justifying ranges from 18-20 months’ imprisonment.20 I have carefully considered the table outlined by Woolford J in Galloway v Police, where the starting points identified range from 9–15 months.21 I conclude that starting points are largely grouped within the 9- 15 month range, with higher starting points taken where significantly aggravating factors were present.
[39] In my view, although broadly useful, the facts of this case are quite different from other cases cited to me involving charges of unlawfully taking a motor vehicle. This is because, although this is the lead charge in terms of the end penalty able to be imposed by the Court, it is, in my view, inextricably entwined with the charges of assault, breach of protection order and the wilful damage relating to the victim’s phone.
[40] In my view, the 18-month starting point for the unlawful taking charge was at the very highest end of the available range. The victim’s car valued at $20,000 aggravates the offending, as is the fact that this offending occurred in the context of a family harm incident. The victim was left with no means of contact or transport. However, there is no suggestion of dangerous driving, damage to the vehicle or the evasion of police, common aggravating factors in similar cases.
18 Skeens, above n 11, at [21].
19 Edwards v Police HC Auckland CRI-2010-404-103, 11 May 2010
20 Wood v Police, above n 10, at [24].
21 Galloway v Police [2019] NZHC 3363 at [16].
[41] One must also consider the uplift added on for the balance of the charges, with three offences occurring in the same set of circumstances as the unlawful taking. That additional 18-month uplift sits uneasily with the Crown’s submission that the family harm, victim impact and significant breach of trust factors should also be considered as aggravating factors in relation to the unlawful taking charge. While not quite double counting, it is hard to see how such a large uplift is justified on the balance charges when a starting point at the upper end of the range was taken for the lead charge of unlawful taking.
[42] I consider an adjustment for totality is necessary. Totality assessments are appropriate where “there is a relationship in time and context that the offending is connected in some way, even if distinct for the purposes of cumulative sentencing”.22 As directed by the Sentencing Act23 and Court of Appeal, the total period of imprisonment must be in proportion to the gravity of the overall offending.24
[43] For these reasons, I agree with the Crown submissions at sentencing that 30 months’ imprisonment would have been an appropriate global starting point for the offending. That global starting point encompassed a notable uplift for the balance charges, while also recognising the close connection in time and space between the offences, as well as acknowledging that the starting point for the unlawful taking of the motor vehicle charge was at the upper end of the range.
[44] Making the same sentence adjustments as the Judge and rounding down, this would result in a sentence of home detention of five months.
[45] As to whether community detention and supervision or intensive supervision was the appropriate outcome and the least restrictive sentence, I find, stepping back and looking at the offending in the round and in its context, that such an end sentence would not meet the purposes and principles of sentencing engaged in this case. The offending was serious and continuous. Although the appellant has no previous convictions, I am satisfied that an end sentence of home detention was the least
22 Ogden v R [2016] NZCA 214 at [64].
23 Sentencing Act 2002, s 85(2).
24 Haywood v R [2015] NZCA 551 at [11].
restrictive outcome. I accept that this sentence has meant the appellant has not been able to engage in employment and that this has been difficult for him. I also acknowledge however that he has, with this sentence, been able to continue with the rehabilitative programme he undertook prior to sentencing.
[46] Accordingly, the appeal is allowed to the extent that the end term of home detention is reduced but, in all other respects, is dismissed.
Result
[47] The appeal is allowed. A sentence of five months’ home detention is imposed on the same terms and conditions imposed by the District Court Judge. By way of completeness, I note that the order to pay reparation remains in force.
Harland J
Solicitors:
C G Nolan, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch.
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