Beck v Police

[2014] NZHC 931

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2014-425-005 [2014] NZHC 931

BETWEEN

MARRAH PATU BECK

Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondents

Hearing:	6 May 2014
Appearances:	K A Owen for Appellant S N McKenzie for Respondents
Judgment:	6 May 2014

RESERVED JUDGMENT OF MANDER J

[1]      The appellant pleaded guilty to two charges of breaching a protection order and one charge of breaching release conditions.  He was sentenced by Judge Turner to 15 months imprisonment.   He appeals that sentence on the basis that it was manifestly excessive.

Background

[2]      The appellant and his victim shared a sporadic relationship for some 10 years. That relationship however ended years ago.  It was marked by a history of domestic violence dating back to 2005.  On 20 November 2006, a final protection order was issued against the appellant in favour of the victim.

[3]      On 1 January 2014, in breach of this protection order the appellant sent 45 text messages to the victim.  In one of these messages he stated, “I’m going to put you in a coffin”.  Having replied to the appellant on four occasions to tell him that she did not want to be in a relationship with him, the victim stopped replying and

phoned the Police.

BECK v NEW ZEALAND POLICE & ANOR [2014] NZHC 931 [6 May 2014]

[4]      The  second  breach  of  the  protection  order  arose  out  of  events  on  the following morning,  2  January.   The victim  was  at  her home address  when  she received a text message from the appellant stating, “I’ll see you soon”.   Over the next two hours the appellant received numerous text messages and missed calls from the appellant, none of which were replied to.  In the afternoon, the victim heard a knock at her door.  She then witnessed the appellant walk past a window to the back door.  She then heard a set of keys being tried unsuccessfully in her front door in what  was  an  obvious  attempt  by the  appellant  to  enter  the  address.   After  the appellant left, the victim called the Police.  As the Police attended at the victim’s address, they observed the appellant’s vehicle pull up outside.  Notwithstanding the presence of the Police, the appellant continued to attempt to contact the victim, calling her cell phone and landline approximately 10 times.

[5]      The appellant provided no explanation to the Police in relation to his actions, other than “I’ll plead guilty and do my time”.

The appellant’s previous history

[6]      As detailed by Judge Turner in his sentencing remarks, the appellant has a history of domestic violence including assaults and threats to this particular victim. His history starts in 1996, when he was convicted of male assaults female and sentenced  to  supervision.    In  1998,  the  appellant  was  convicted  of  a  domestic violence assault and received periodic detention.  In 1999, he received a sentence of supervision for male assaults female, there then followed a gap until 2006, when he was convicted of intimidation and male assaults female, for which he received a 4 month prison term.  In 2007, he was convicted for possession of an offensive weapon and sentenced to 6 months imprisonment.   That same year, he was convicted of breaching a protection order in respect of the present victim and possession of an offensive weapon for which he was sentenced to 6 months imprisonment.  Also in

2007, he was convicted for a further breach of the protection order and male assaults female for which a separate 7 month term of imprisonment was imposed.   Both offences  represented  further  offending  on  the  same  victim.    In  2008,  he  was convicted of a breach of his release conditions.  In 2010, he was again convicted for breach of the protection order and male assaults female in respect of which an 8

month term was imposed.  In 2010, the appellant was convicted of common assault and sentenced to imprisonment for 1 month.  In February 2013, he was convicted of threatening to kill or cause grievous bodily harm to this same victim in breach of the protection order.  He was sentenced to imprisonment for a total of 8 months.

The District Court sentence

[7]      Judge Turner reviewed the facts of the present offending and detailed the appellant’s previous convictions.   Having reviewed the pre-sentence report which remarked on the appellant’s high risk of re-offending, the sentencing Judge noted the seriousness of the present offending set against the appellant’s repeated breach of the protection order.  The learned District Court Judge noted that the present offending was the fifth occasion upon which the order had been breached and that the appellant’s continued texting and threatening of his victim represented psychological abuse.

[8]      In sentencing the appellant, Judge Turner took a starting point for the first breach offence on 1 January 2014 of 10 months imprisonment.  The Judge chose to approach the sentencing exercise by imposing concurrent sentences.  As a result, he uplifted the 10 month starting point by 5 months in recognition of the second breach of the protection order the following day.  Having regard to the appellant’s previous history,  the sentence was  increased  to  20  months  before allowing the  full  25% discount for the appellant’s early guilty pleas.   This resulted in a final effective sentence of 15 months imprisonment for the 1 January offence.

[9]      In respect of the breach of the protection order on 2 January, a concurrent sentence of 12 months imprisonment was imposed and for the breach of release conditions a concurrent sentence of 6 months.  It was uncontested that imprisonment was the appropriate sentence.

Appellant’s argument

[10]     Mr Owen on behalf of the appellant submitted that the sentence of 15 months is manifestly excessive because the uplift of 5 months for the second breach he

argues results in double counting.  A similar submission is made in respect of the

further 5 month uplift in recognition of the appellant’s prior history.

[11]     Mr Owen submitted that the 10 month starting point was sufficient to reflect both episodes of offending on the successive days, and the 5 month uplift as a component part of the sentence in respect of the first breach results in double counting.    He  seeks  to  distinguish  Coory  v  Police,1   a  case  relied  upon  by the respondent as being more serious, involving as it did the actual entry and confrontation with the victim in her own home.

[12]   In respect of the sentencing Judge’s approach to the appellant’s prior convictions, it was submitted that the imposition of a further 5 months imprisonment amounts to punishing the appellant twice for his prior offending.   In that regard, reliance is placed upon the Court of Appeal authority of Beckham v R.2   In particular, reference is made to the cautionary observation of Sir Michael Myers CJ in R v Casey,3  that a court must be careful to ensure that in sentencing a person who has previously been convicted the sentence imposed is not increased merely by reason of those previous convictions.   In Beckham the Court of Appeal upon analysis of the appellant’s previous history did not consider his prior convictions warranted any increase in the sentence that otherwise would have been imposed.   Mr Owen submitted  that  an  uplift  of  no  more  than  2  months  for  the  appellant’s  prior convictions should have been added to the starting point.  With the 25% reduction

for  early  pleas  this  would  have  resulted  in  a  final  sentence  of  9  months imprisonment.

Crown submissions

[13]     Ms McKenzie for the respondent submitted that the ultimate sentence of 15 months was within the sentence range available to the District Court.  Reliance was placed on Coory v Police where a sentence of 16 months for breaches of protection orders in similar circumstances as the present case was upheld on appeal.   That

offending involved text messages sent over the course of six days which did not

1      Coory v Police HC Dunedin CRI-2010-412-37, 25 November 2010.

2      Beckham v R [2012] NZCA 290.

3      R v Casey [1931] NZLR 594 (CA) at 597.

carry overt threats, culminating in the offender entering his ex-partner’s house and refusing  to  leave  until  the  Police  were  called.    Like  the  present  appellant,  the offender had a history of breaching protection orders and related violent offending. The sentencing Court uplifted a starting point of 16 months by 6 months in recognition of the prior offending before discounts were applied.

[14]     The  Crown  submits  that  while  the  present  appellant  did  not  succeed  in entering his victims home, he attempted to do so and that there were a greater number of texts which included what amounted to a threat to kill.  The uplift for the previous offending was required as a matter of deterrence.

Analysis

[15]     No issue is taken with the sentencing Judge’s starting point of 10 months in respect of the first breach of the protection order on 1 January.   The appellant’s submission however is that double counting arose as a result of that sentence being increased by 5 months to mark the further breach the following day which it is argued should have been subsumed in the 10 month sentence.

[16]     In choosing to approach the sentencing exercise by way of the imposition of concurrent sentences, the sentencing Judge was entitled to impose an effective sentence in respect of the lead charge which recognised the further breach of the protection  order  the  following  day,  when  the  appellant  physically  went  to  the victim’s address and sought to gain entry to her house.  That and the persistence of the appellant’s conduct in returning to the address and his continued texting of the victim required recognition in the ultimate sentence imposed.

[17]     The appellant seeks to distinguish Coory v Police, however I am satisfied that it provides applicable guidance to the present case.  While the appellant did not gain physical access to his victim, he went to her address and sought to gain access to the house.   Not deterred by the victim’s locked premises, he returned to pursue direct contact with his ex-partner.  Having regard to the threat contained in at least one of the texts there was a clear element of danger to the safety of the victim.  In my view the increased starting point of 15 months was one available to the sentencing Judge in the particular circumstances of this case.

[18]     In relation to the further uplift of 5 months to mark the appellant’s criminal history, Mr Owen draws the Court’s attention to Judge Turner’s remarks relating to his assessment of the starting point, where the learned sentencing Judge refers to his assessment of the gravity of the breaches, marking as they do the repetition of earlier breaches of the same protection order.   It is submitted that the sentencing Judge, having already considered the question of the appellant’s prior history at that point in the sentencing exercise, ought not to have increased the sentence to the extent he did by way of a further discrete uplift to mark the personal aggravating feature of the appellant’s prior criminal convictions.

[19]     There is some weight to Mr Owen’s submission and care is required to ensure that when assessing the gravity of the offending for the purpose of determining a starting point that task  is not conflated with the separate further step  involving potential aggravating factors personal to the defendant relating to an offender’s prior history.  It is however inevitable in assessing the seriousness of an offence such as the breach of protection orders that the offender’s prior compliance with the order will strongly influence the view taken by a sentencing Court of the seriousness of the offender’s conduct.  The difficulty for the appellant is that his criminal history which I have detailed in this judgment and was referred to in some detail in Judge Turner’s sentencing remarks goes beyond the repeated breaching of the protection order.  The appellant  since  2006  has  regularly  committed  offences  of  domestic  violence involving assault and intimidation, including offending against the present victim. Moderate increases in the terms of imprisonment imposed have not deterred the appellant.

[20]     The Court of Appeal in Beckham4 noted the relevance of previous convictions in uplifting an offender’s sentence, particularly where those convictions indicate a tendency to commit the particular type of offence for which the offender is for sentence.   Of particular relevance are issues of deterrence and in some cases protection which may require an uplift for the previous offending having regard to its nature and type.  This appellant’s previous offending is of that ilk.  Furthermore, the appellant’s continued offending reflects the appellant’s apparent complete disregard

of the protection order.  There is no indication that he intends to alter his conduct

4      Above n 1.

when he commented to the Police that he would plead guilty and “do my time”. Personal deterrence and the need to afford protection to the victim required the appellant’s previous offending to be recognised in a substantive uplift to the sentence that might otherwise have been imposed.

[21]     The repeated nature of the appellant’s breaches of the protection order, his obvious intent to psychologically abuse his victim, and his persistence in that regard, when set against his history of domestic violence since 2006 satisfies me that the ultimate sentence imposed was within the range available to the sentencing Judge.  It accordingly follows that the appeal is dismissed.

Solicitors:

Keith Owen Barrister, Christchurch

Crown Solicitor, Invercargill