Allan v Police
[2021] NZHC 379
•4 March 2021
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATIONS) OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2021-442-1
[2021] NZHC 379
BETWEEN CODY RICHARD ALLAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 March 2021 (AVL) Counsel:
M J Vesty for Appellant
J M Webber for Respondent
Judgment:
4 March 2021
JUDGMENT OF ELLIS J
[1]Following a sentence indication, Mr Allan pleaded guilty to charges of:
(a)impeding breathing (x 3);1
(b)indecent assault (x 2);2
(c)threatening to kill;3 and
(d)breach of community detention.4
1 Crimes Act 1961, s 189A(a) [maximum penalty of seven years’ imprisonment].
2 Section 135 [maximum penalty of seven years’ imprisonment].
3 Section 306 [maximum penalty of seven years’ imprisonment].
4 Sentencing Act 2002, s 69(G)(a) [maximum penalty of six months’ imprisonment or a $1,500 fine].
ALLAN v NEW ZEALAND POLICE [2021] NZHC 379 [4 March 2021]
[2] On 22 December 2020 he was sentenced by Judge Rielly to three years and one month’s imprisonment.5 He now appeals that sentence.
Facts
[3] In April 2020, New Zealand was in a state of COVID-19 lockdown. Mr Allan was serving a sentence of community detention. He had been in a relationship with the complainant (B) for around two or three months. He cut off his ankle bracelet so that he could live with B at her family’s address during the lockdown.
[4] On 11 April, Mr Allan and B took a walk to clear the air—there had been tension between them about a previous partner. As they entered an alleyway, Mr Allan took hold of B and put his arm across her neck and restricted her breathing, causing her to panic.
[5] Later, around midnight, the two went to the sleepout. They had another argument. B feared for her safety and so tried to leave. Mr Allan blocked her, forced her onto the bed, and straddled her. He then took a duvet and pillow and smothered her face, causing her to temporarily lose consciousness. He put the duvet and pillow over her face numerous times, while telling B in chilling detail how he would kill her. B was terrified and thought she would die.
[6] During the attack, Mr Allan indecently assaulted B by putting his hand on her vagina over her clothing and touching her naked breasts. He told B that he could do whatever he liked, which B understood to mean he could rape her.
[7] Mr Allan eventually went to the door of the sleepout, ordering B to remain silent. Fearing for her life, B tried to escape by throwing a heavy ornament at Mr Allan. He then grabbed B’s neck, taking her to the floor. B screamed for help, but Mr Allan put his arm across her neck, again restricting her breathing, and this time causing her to lose control of her bowels. Mr Allan wrapped his legs around B’s waist, telling her that he would squeeze and break her ribs. One of B’s ribs did break, as she continued to scream for help.
5 R v Allan [2020] NZDC 26905.
[8] Eventually, B’s stepmother arrived from the main dwelling to find her on the floor. B had numerous bruises, a broken rib and suspected broken jaw, a petechial haemorrhage in her eye and throat, a hoarse voice, difficulty swallowing, and significant tenderness and pain.
District Court sentencing
Sentence indication
[9] On 15 September 2020 Judge Rielly gave Mr Allan a sentence indication. After recounting the facts, she explained in detail the effect that his offending had had on B:
[12] I now want to take you through the effects of the offending behaviour on the complainant. They are reported in her victim impact statement. She has reported that the medical examination was very invasive for her and the diagnosis of her injuries was difficult. She described that her swollen neck made it hard to breathe, swallow, talk and cough for a significant period of time. Her voice box was affected for a period of two weeks as well. Her broken rib took eight weeks to heal and it made it difficult to move, walk and sit. It also made it difficult for her to carry out daily activities and work.
[13] The emotional impact has been even more remarkable for her. She has been struggling to sleep, she has difficulty falling asleep as her mind keeps going back to that night and then she has nightmares once she is asleep, dreams about what happened and about how frightened she was of what occurred, and of you. She finds herself waking screaming and crying. Her lack of sleep has caused her to have low mood and become easily irritated and angry. She finds it hard to focus because of the lack of sleep. She finds it hard to be alone at home or at work. She is hyperalert and conscious of people around her. She has become more distant from friends and family and she struggles to talk about what happened and avoids conversations with others. She lives in constant fear because of the flashbacks. She cannot return to the room where this occurred because she is fearful of being in there and it bringing back memories of what happened. Remembering what occurred triggers anxiety and makes her heart beat fast. She has lost interest in usual daily activities and struggles to be motivated. She constantly thinks about that night and wonders why you did what you did. It makes her feel physically ill when she thinks about it. Overall the emotional impact has been significant.
[10] The Judge noted that Mr Allan has previous violent convictions from Australia, but that these were historic. While his offending in New Zealand had not been violent, he was serving a sentence of community detention service at the time of the offending against B.
[11] Because all the offending occurred over just a period of hours, and because all the offences (apart from the community detention breach) had similar maximum penalties, the Judge adopted a global starting point of five years.6 She justified this by reference to a number of aggravating features:
(a)there were three discrete strangulations over one day (the first while the two were out on a walk, the second with the pillow, and the third on the ground straddling B);
(b)the context of an intimate relationship;
(c)the detailed threats to kill B;
(d)the extent of, and danger posed by, the strangulations, evidenced by B’s loss of consciousness and bowel control;7
(e)the significant (albeit not overly serious) injuries to B; and
(f)the further degradation involved in the indecent assaults.
[12]The Judge said:
[31] In my view, if one of the two strangulations/suffocations that had occurred in the sleepout had been considered on its own, the appropriate start point for sentence would have been two and a half to three years’ imprisonment. If we were dealing with two, it might have been as high as four years’ imprisonment, but we are in fact dealing with three, and, in my view, whilst I consider that the start point advocated on behalf of the Crown is a little too high, I consider that the start point for sentence in this case that is appropriate for the offences is five years’ imprisonment.
[13] The Judge concluded by noting that Mr Allan would receive a full 25 per cent discount if he accepted the indication. She made it clear to Mr Allan that his end sentence would not be in range for home detention. Even if it was, she said, it was not an appropriate outcome.
6 The Crown had advocated for a starting point of five to six years for the strangulation offending; the defence argued for a starting point of 21 months.
7 Which the New Zealand Law Commission has noted is indicative of strangulation that is near fatal.
Sentencing
[14] At Mr Allan’s sentencing on 22 December, Judge Rielly essentially adopted her earlier analysis and the same five-year starting point. She gave Mr Allan a full 25 per cent discount for his guilty plea. As for matters canvassed in Mr Allan’s s 27 cultural report, and his remorse, the Judge said:
[24] I consider that in your case you should receive additional credits to your sentence of five per cent for your remorse, which I assess as genuine, and 10 per cent for the social deprivation and addiction that you have suffered. I do not consider that the credit can be any higher than 10 per cent because this is such serious violent offending behaviour. So, overall, that means that, from that start point of five years’ imprisonment, you will receive a credit to your sentence of two years, arrived at an end sentence of three years’ imprisonment.
[15] Finally, the Judge imposed a one-month cumulative sentence for the breach of community detention charge, giving an end sentence of 37 months’ imprisonment.
The appeal
Grounds
[16] On behalf of Mr Allan, Mr Vesty submitted that Judge Rielly adopted too high a starting point (five years), which was arrived at (he says) because she gave too great an uplift for the additional instances of strangulation. More particularly, he says that:
(a)when compared with similar cases, an appropriate starting point is two years and nine months for the most serious strangulation; and
(b)from that, an uplift of nine months should be applied, giving an adjusted starting point of three years and six months’ imprisonment.
[17] Mr Vesty takes no issue with the discounts for Mr Allan’s remorse, cultural report, and guilty plea (totalling 40 per cent). Overall, he submits that an end sentence of two years and one month’s imprisonment is appropriate.
Approach
[18] Mr Allan’s appeal is governed by s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion. It must only be allowed if the Court is satisfied both that there has been an error in the sentence and that a different sentence should be imposed.8 The focus is on the final sentence and whether it was in the available range, rather than the exact process by which it was reached.9
Discussion
[19] The maximum penalty for strangulation is seven years’ imprisonment: a recognition that, for reasons that are by now tolerably well known, strangulation is an especially pernicious and dangerous kind of domestic violence. It is regarded as a strong indicator of a real risk of fatal future violence. So even where no significant or lasting physical injury is caused, it is the high level of inherent danger in, and the extreme (and related) fear engendered by, such offending that is seen by Parliament as warranting a sterner sentencing response.
[20] Although I was referred to a number of cases said to be comparable with the present, I have found Doogue J’s decision in T v Police the most helpful.10 After referring to the previous High Court decisions Ackland11 and Houkamau12, the Judge referred to the example of the “worst class” of offending given by the Law Commission in its report advocating a new strangulation offence:13
5.43An example of the worst class of strangulation within scope would feature the hallmarks of coercive or controlling behaviour and the terror we have identified. For example, a perpetrator enters the victim’s home in breach of a protection order. After an altercation, he strangles her with his hands on and off for several minutes, leaving her struggling for breath, incontinent and unconscious. The victim thinks she will die and knows that the perpetrator has the power to kill her. Because he invaded her home, after the strangulation, she lives in constant fear for her security and life. As a consequence, he has achieved coercion and control over her.
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
9 Ripia v R [2011] NZCA 101 at [15].
10 T v Police [2019] NZHC 3375.
11 Ackland v Police [2019] NZHC 312, [2019] NZAR 1112.
12 Houkamau v Police [2019] NZHC 2743.
13 Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016).
5.44It is the terror that results from strangulation that is at the heart of this kind of criminal conduct. That terror is likely to seriously affect all aspects of the victim’s life. In our view, the terror that results from this “worst class of case” is greater than the harm of a minor injury and at least equivalent to a serious physical injury.
[21]The Judge then observed:14
[40] There is sound reason behind the Law Commission’s classification of this combination of features as forming the worst type of strangulation offending. First is the act of strangulation itself. Strangulation can lead to unconsciousness in one of two ways: where breathing is impeded or where vascular occlusion occurs. In the latter case, unconsciousness may be brought about within 10 to 15 seconds. If the pressure applied to a person’s neck or throat is maintained, death may ensue within three to five minutes. However, even where the pressure is released well before this critical point, the sustained lack of oxygen supply to a person’s brain can result in irreversible brain injury. Further, studies have shown that delayed death can eventuate in cases of strangulation. It is for these reasons that unconsciousness, as with urinary or faecal incontinence, are strong indicators of near-fatal strangulation.
[41] Second is the coercive nature of strangulation. As the Law Commission noted, strangulation can be distinguished from situational violence which is intermittent in nature, is not rooted in a desire to control and does not necessarily escalate over time. In a 2001 study of 300 strangulation cases in San Diego, California – specifically discussed by the Law Commission – one of the key findings was that most offenders do not strangle to kill, but rather strangle to show they can kill. Strangulation is in many instances a means by which an abuser can [instil] and perpetuate fear in the victim for the purpose of controlling her. This fear can persist well after the physical act of strangulation ceases.
[42] Third is the increased risk of a future fatal attack. This, the Law Commission suggested, elevates the importance of such behaviour being understood and taken into account by the person or body charged with making decisions in respect of both the victim and perpetrator of strangulation. It is also relevant that in a 2010 paper commissioned by the Ministry of Social Development entitled Learning from Tragedy: Homicide within Families in New Zealand 2002–2006, the authors found that a woman is at higher risk of being killed by her male partner if, amongst other factors, he has been violent in the past and exhibits extreme jealousy or control. Strangulation falls under both of these indicators.
[22] The Judge then identified certain features of T’s offending as being particularly aggravating:
(a)The victim’s unconsciousness and incontinence (being indicators of near fatal strangulation).
14 Footnotes omitted.
(b)The element of home invasion (although T did not “invade” the victim's home in the traditional sense—he was initially there with her permission, but he did not leave when asked).
(c)The controlling nature of his actions, asserting his dominance over the victim in the one space she ought to have felt safe. The acts of dragging the victim into her house, blocking the doorway preventing her from leaving and continuing the physical assault once inside all served to isolate the victim and would likely have resulted in a heightened sense of helplessness.
(d)The offending was prolonged and escalated in nature from simple physical assault to more violent physical assault combined with psychological control.
(e)The significant impact of the offending on the victim. The injuries sustained reiterated the seriousness of the overall series of assaults and there was an added factor of humiliation resulting from the victim’s incontinence brought on by her loss of consciousness.
[23] The Judge disagreed with T’s counsel’s submission that the three year starting point adopted in the District Court was too high. Rather, she said there was little to distinguish T’s offending from the “worst class” of strangulation; a starting point of four years would have been well within range.
[24] It is trite that a sentence appeal is concerned not with how a sentence is arrived at but whether the end result can be said to be manifestly excessive. And in this case, there are a number of ways the Judge could have arrived at the sentence she did. There was not one, but three discrete occasions on which B’s breathing was deliberately impeded by Mr Allan over the course of 24 hours. The second and third occasions (in the sleepout) were particularly serious. Repeatedly holding the pillow to B’s face and then removing it during the second incident involves ongoing terrorisation of a kind that a single act of strangulation or suffocation followed by release does not. B’s loss of consciousness (on the second occasion) and faecal incontinence (on the third) are
indicators that either attack might well have been fatal. And there are further aggravating features to be found in the surrounding circumstances, including most notably:
(a)the threats to kill (in circumstances where B was hugely vulnerable and well aware they could easily have been made good);
(b)the indecent assaults; and
(c)the physical violence, which resulted in (among other injuries) a broken rib.
[25] In my view, Mr Allan’s is, by some margin, the most serious of all the strangulation cases to which I was referred. Section 8(d) of the Sentencing Act 2002 provides that a sentencing Court must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate.
[26] Either of the two incidents in the sleepout, alone, could easily have warranted a starting point of four years. There could be no quibble with an uplift of a year for the earlier one.
[27] I am therefore unable to discern any error of either approach or result in the District Court Judge’s careful and thorough reasoning. The appeal is dismissed.
Rebecca Ellis J
Solicitors:
Crown Solicitor, Nelson for Respondent
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