Anderson v R

[2016] NZCA 346

IN THE COURT OF APPEAL OF NEW ZEALAND

CA174/2016
[2016] NZCA 346

BETWEEN	MICHAEL LESLIE ANDERSON Appellant
AND	THE QUEEN Respondent

Hearing:	11 July 2016
Court:	French, Fogarty and Collins JJ
Counsel:	N M Dutch for Appellant K E Hogan and H D Benson-Pope for Respondent
Judgment:	20 July 2016 at 11.00 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

1. On 8 March 2016 Mr Anderson was convicted after trial before Judge Harding and a jury in the Tauranga District Court of three charges of breaching a protection order.[1]  He was sentenced by Judge Harding to 18 months’ imprisonment and ordered to pay $1,000 reparation.[2]  Mr Anderson appeals only the third of his convictions and his sentence.

   [1]Domestic Violence Act 1995, s 49(1)(a).

   [2]R v Anderson [2016] NZDC 6650.

2. We are dismissing Mr Anderson’s appeal against conviction because no miscarriage of justice occurred when he was convicted.[3]  We are also dismissing Mr Anderson’s appeal against sentence because it was not manifestly excessive.[4]

Background

[3]Criminal Procedure Act 2011, s 232(2)(c) and 232(4).

[4]Criminal Procedure Act, s 250(2); Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

1. Mr Anderson and Ms V commenced a relationship in 2011.  Ms V described their relationship as one that was “off and on”.  In August 2013 Ms V obtained a protection order against Mr Anderson.  Their relationship continued, however, until around May 2015.

2. In June and July 2015 three incidents occurred that resulted in Mr Anderson being convicted of three charges of breaching the protection order.

3. The first of these incidents occurred on 15 June when Ms V was parked in a supermarket car park.  She was sitting in her car with her new boyfriend with the car door open.  Mr Anderson drove into the car park in his SUV.  He drove his vehicle to where Ms V’s car was parked.  Mr Anderson’s vehicle made contact with the open door of Ms V’s car.

4. The second incident also occurred on 15 June when Mr Anderson broke into the shed at Ms V’s property and took a lawnmower.

5. The third charge arose from events that occurred from 20–23 July 2015.  This is the matter to which Mr Anderson’s appeal relates.

6. According to Ms V’s evidence, on the evening of 20 July she began receiving unsolicited sexually explicit text messages from men asking to meet with her.  Ms V received approximately a dozen messages of this kind.  She eventually asked one of the men texting her to telephone her.  He did so.  During the course of that conversation, Ms V learnt the man had obtained her details from a Facebook page that was linked to a dating website and that the man believed he had been in Facebook communication with Ms V.

7. Ms V knew she had not created the Facebook page and explained to the unknown man that her former partner was responsible and that she had not been communicating via Facebook with the man she was speaking to.

8. The following day a friend of Ms V took a screenshot of the Facebook page.  It included Ms V’s contact details and an intimate profile photo that had been taken by Mr Anderson when he and Ms V were still in their relationship.  A copy of that screenshot was produced as an exhibit.

9. On 27 July Ms V received a text from Mr Anderson saying he hoped everything was well with her and her son.  A copy of that text was kept by Ms V and produced as an exhibit.  Ms V told the jury she replied along the following lines:

   Do you really think that texting me something like that after putting me on a Facebook dating site and trying to send random men to my house is okay?

10. Ms V did not keep a copy of the text she sent Mr Anderson, but she gave evidence about its content.  Mr Anderson responded on 28 July saying “Yea I’m sorry for that.  It’s been deleted.  Just wanted to make piece [sic] with you.  Sorry for the harm caused”.  A copy of that text was produced in evidence.

11. Ms V went to the police on 28 July.  Subsequently, Mr Anderson was charged with breaching the protection order on the occasions we have summarised.  Mr Anderson denied offending in the way alleged.  At trial propensity evidence was adduced relating to Mr Anderson’s four previous convictions for breaching the protection order.

12. In sentencing Mr Anderson Judge Harding adopted a starting point of 15 months’ imprisonment for all three convictions, which he increased to 18 months’ imprisonment to take account of Mr Anderson’s previous convictions for breaching the protection order.

13. Judge Harding decided a sentence of home detention was not appropriate because of concerns in the pre-sentence report about Mr Anderson’s low prospect of rehabilitation.  An end sentence of 18 months’ imprisonment was imposed concurrently in relation to all three charges alongside an order to pay $1,000 reparation.[5]

Grounds on appeal

[5]The sentence included a concurrent sentence of one month’s imprisonment for failing to comply with a supervision condition.  The appellant had pleaded guilty to this charge separately.

1. There are two limbs to Mr Anderson’s appeal against conviction:

   (a)First, it is said Judge Harding erred when he allowed the Crown to adduce evidence of the conversation Ms V had with the unknown male caller on the evening of 20 July, in particular the evidence that Ms V gave about the caller telling her of the details of the fake Facebook page and its link to the dating website.

   (b)Second, it is said Judge Harding erred by allowing Ms V to give evidence that she knew it was Mr Anderson who had created the fake Facebook page when she first learnt of it.

2. Mr Anderson also appeals against the length of the prison sentence imposed and the decision not to grant him home detention.

Analysis

Appeal against conviction

1. Mr Dutch, counsel for Mr Anderson, submits the evidence Ms V gave about what the unknown male caller told her on the evening of 20 July about the Facebook page and dating website was adduced to prove the truth of the contents of the caller’s statement and, as such, it was inadmissible hearsay evidence.[6]

   [6]Evidence Act 2006, s 4(1).

2. There is merit in the Crown submission that the statements in question were not adduced to prove the truth of their contents but to provide context for Ms V’s subsequent actions.

3. We do not find it necessary, however, to determine if the evidence in question was hearsay evidence.  This is because even if the statements were hearsay evidence they would have been admissible under s 18 of the Evidence Act 2006 if the Crown had relied upon that section.  There are two reasons for this conclusion:

   (a)the circumstances relating to the statement provided reasonable assurance that the statement was reliable; and

   (b)the unknown male caller was not available as a witness.

4. In addition, even if the evidence in question was inadmissible, it had minimal impact on the trial.  What was important was whether the jury accepted Ms V’s evidence about Mr Anderson’s admission to her that he had created the fake Facebook dating site page in Ms V’s name to cause men to contact her for sexual purposes.  Once the jury accepted Ms V’s evidence on this point, the third charge was proven beyond reasonable doubt.

5. Similarly, we find no basis to allow the second ground of appeal against conviction.  Ms V gave evidence about her immediate conclusion Mr Anderson was responsible for the fake Facebook page.  She said in relation to the unsolicited text messages: “I knew straight away it was him, that Michael Anderson would do that to me”.

6. Her evidence was opinion evidence as defined in s 4 of the Evidence Act.  Ms V’s opinion was, however, admissible in order to enable her to explain why she challenged Mr Anderson about him having set up the Facebook page when she communicated with him on 27 July.  Ms V’s opinion evidence was admissible under s 24 of the Evidence Act.[7]

   [7]Evidence Act, s 24: “A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived”.

7. Even if Ms V’s opinion evidence was inadmissible, it had minimal impact on the trial.  The fact Mr Anderson was responsible for creating the fake Facebook page was clearly established through other means, including his admission to Ms V on 28 July and the fact that he was the only person who could have placed her profile photo on the Facebook page.

Appeal against sentence

Length of sentence

1. We have carefully examined comparable cases and have concluded the sentence of 18 months’ imprisonment was not manifestly excessive. 

2. Breaches of protection orders vary enormously in culpability and in degrees of threat and psychological or physical harm to the protected person.[8]  Each case hinges on its own facts.  We have noted, however, cases of a similar nature to Mr Anderson’s in which the range of sentences was 12–24 months’ imprisonment.[9]

   [8]Woods v Police [2015] NZHC 305 at [37] and Mam v Department of Corrections HC Christchurch CRI-2011-409-111, 1 December 2011 at [4].

   [9]Mataiti v Police [2014] NZHC 1675; Woods v Police, above n 8; Apineru v Police [2014] NZHC 1969; Palmer v Police [2015] NZHC 143; Kumar v Police [2015] NZHC 1575; and Bartlett v Police [2016] NZHC 850.

3. We conclude the sentence of 18 months’ imprisonment was within the range available for the following reasons:

   (a)Mr Anderson had four previous convictions for breaching the protection order.  The previous incidents included occasions when Mr Anderson telephoned and sent text messages to Ms V, and one occasion on which he visited her home and physically abused her;

   (b)the third of the convictions for which Mr Anderson was sentenced by Judge Harding was a sinister event and involved him engaging in a high level of psychological bullying of Ms V;

   (c)the pattern of Mr Anderson’s breaches of the protection order demonstrate an escalating level of seriousness; and

   (d)Mr Anderson showed no remorse or appreciation of the seriousness of his behaviour.

Home detention

1. We also accept that Judge Harding properly exercised his discretion when he decided not to grant Mr Anderson home detention.

2. The pre-sentence report demonstrates Mr Anderson’s poor prospect of rehabilitation, and refers to his “struggles with not being able to exert power and control” and his obsessiveness about his relationship with Ms V.  It is also a matter of concern Mr Anderson’s three recent offences occurred when he was subject to a sentence of supervision relating to his earlier breaches of a protection order.

3. In upholding the sentence, we record that we have not overlooked a challenge to Judge Harding’s finding of premeditation in relation to the supermarket incident.  Mr Anderson argues there was no evidence to support that finding.  We reject that argument.  Judge Harding was the trial Judge and was entitled to draw that inference from Mr Anderson’s conduct after the incident and from his knowledge of Ms V’s routines.

Conclusion

1. The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Solicitor, Manukau for Respondent