Bigham-Hill v R
[2019] NZHC 753
•9 April 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI 2019-485-9
[2019] NZHC 753
BETWEEN JOSHUA BIGHAM-HILL
Appellant
AND
THE QUEEN
Respondent
Hearing: 3 April 2019 Counsel:
G T Pickering and C Thorburn for Appellant F A M Manning for Crown
Judgment:
9 April 2019
JUDGMENT OF MALLON J
Introduction
[1] Mr Bigham-Hill pleaded guilty to a charge of male assaults female.1 He was sentenced in the District Court to 18 months’ imprisonment and declined leave to apply for home detention.2 One of the conditions of release imposed was that Mr Bigham- Hill could only have contact with the victim if it was expressly authorised by his Probation Officer. A protection order was also made.3
[2] Mr Bigham-Hill appeals against his sentence. He says the sentence was manifestly excessive, leave to apply for home detention should have been granted, and the release condition requiring approval for contact with the victim should not have been imposed.
1 Crimes Act 1961, s 194(b) (maximum penalty: two years’ imprisonment).
2 Police v Bigham-Hill [2019] NZDC 1292.
3 Sentencing Act 2002, s 123B.
BIGHAM-HILL v R [2019] NZHC 753 [9 April 2019]
The offending
[3] Mr Bigham-Hill and the victim had been in a relationship for around 18 months at the time of the offending.
[4] At around 2.15 am on 6 September 2018, when Mr Bigham-Hill and the victim were together in a hotel room, an argument developed. Mr Bigham-Hill became angry and grabbed the victim around the neck using both hands and applied pressure until she felt as though she was about to pass out. He then released her and punched her once in the head with a closed fist and then slapped her across the face using an open palm. The victim tried to scream for help, but he covered her mouth and nose to stifle the noise. She tried to call the Police but Mr Bigham-Hill grabbed her phone. She fled from the hotel room despite Mr Bigham-Hill trying to pull her back into the room.
[5] The victim blacked out for around 30 seconds. After she had left the room she vomited three or four times, and felt dizzy, nauseous and soreness to her neck. In a statement signed later that day the victim described Mr Bigham-Hill as controlling, and said she feared for her safety and thought that one day he would kill her. She also said she wanted a protection order. In her formal victim impact statement signed on 22 January 2019 she said she loved Mr Bigham-Hill, and would wait for him, but his violence towards her had been out of control and he needed help. She said she wanted to live her life with him as long as he changed and got help.
The offender
[6]Mr Bigham-Hill is 25 years old. He has 14 previous convictions:
(a)injuring with intent (May 2015);
(b)male assaults female (October 2015);
(c)male assaults female and contravening a protection order (November 2015);
(d)breach of release conditions x 6 (dates between March and July 2016);
(e)male assaults female, assault with intent to injure, contravening a protection order and wilful damage (August 2016).
[7] This offending all relates to a former partner. For the May 2015 offending he was sentenced to supervision. Thereafter, he has received short term imprisonment sentences.
[8] Mr Bigham-Hill has not been in employment for over two years. He spends his days watching movies, listening to music, walking and smoking cannabis. He has no social supports other than his current partner. The pre-sentence report considers that Mr Bigham-Hill lacks insight into his offending (he considered all his offending has been caused by his partner’s jealousies). He is considered to be a high risk of offending and a moderate risk of harm to those with whom he is in intimate relationship.
[9] Mr Bigham-Hill read out a letter to the sentencing Judge. In this letter he said he was sorry for hurting his partner, wanted to be a better and caring person, and knew that he needed to fix his anger. He also said he had “detoxed” in prison and was free of drugs and alcohol. His counsel conveyed that he was tearful when he read the victim impact statement shortly before he was sentence.
District Court sentencing
[10] The sentencing Judge described the offending is “about as bad as it can get in terms of seriousness without it being escalated to some more serious charge”.4 He considered Mr Bigham-Hill’s history of violent offending against women was also significant. These two factors meant the sentence had to be “at or near the maximum for a charge of this kind”.5 He considered Mr Bigham-Hill was entitled to a full 25 per cent discount for a guilty plea. The Judge imposed a sentence of 18 months’ imprisonment.
4 Police v Bigham-Hill, above n 2, at [3].
5 At [5].
[11] The Judge declined leave to apply for home detention “given the offence and the views that I have expressed about it”.6 The release condition at issue on this appeal was imposed by the Judge as a modification to the conditions proposed in the pre-sentence report which had proposed that Mr Bigham-Hill have no contact with the victim.
Approach on appeal
[12] First appeals against sentence are governed by s 250 of the Criminal Procedure Act 2011. An appeal must be allowed if the Court is satisfied, for any reason, that there is an error in the sentence imposed on conviction, and a different sentence ought to be imposed. In considering whether there has been an error, the test of whether the sentence is “manifestly excessive” continues to instructive.7 In determining whether a sentence is manifestly excessive, the focus is on the end sentence rather than the process by which it is reached.8
Discussion
Was the starting point and uplift too high?
[13] The Judge did not specifically identify a starting point, nor the amount of the uplift he was applying for Mr Bigham-Hill’s previous conviction. It is apparent from his end sentence, however, that his starting point for these two factors was 24 months’ imprisonment. That is the maximum penalty for male assaults female. The issue is whether that was appropriate.
[14]The Sentencing Act provides:
Principles of sentencing or otherwise dealing with offenders
In sentencing or otherwise dealing with an offender the court—
…
(c)must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which
6 At [8].
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
8 At [36].
that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
(d)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; and
…
[15] As noted, the Judge was of the view that this offending was about as serious as it could be and this, together with Mr Bigham-Hill’s history, meant that the starting point should be at or near the maximum. He decided on the maximum.
[16] Counsel for Mr Bigham-Hill submits this was excessive. She notes that in the District Court the prosecutor had proposed a starting point of 12 to 18 months and a moderate, but proportionate uplift for Mr Bigham-Hill’s conviction history. She also refers to cases involving more serious or comparable offending where lesser starting points were adopted. She places particular emphasis on Waitai v R, Laufau v Police and Grace v Police.9
[17] All of these cases pre-date the amendment of the Crimes Act inserted on 3 December 2018 creating the offence of strangulation or suffocation.10 That offence has a maximum penalty of seven years’ imprisonment. That offence was introduced in recognition that strangulation is a significant risk factor in future fatal attacks, and that it is commonly used by perpetrators of family violence as a tactic to control a partner by instilling fear in the victim of the perpetrator’s ability to kill.11
[18] Mr Bigham-Hill was not charged with this offence as his offending pre-dated it. He is not to be sentenced as though he was charged with it. However, strangulation
9 Waitai v R [2014] NZHC 2116; Laufau v Police HC Auckland CRI-2008-404-187, 8 September 2008; and Grace v Police [2016] NZHC 3021. Reliance was also placed on Yeo v Police HC Auckland CRI 2006-404-283, 14 September 2006; Taylor v Police HC Hamilton CRI-2007-419- 091, 23 August 2007; and Wilson v Police [2012] NZHC 2503. These cases are quite dated.
10 Crimes Act 1961, s 189A.
11 See the Minister of Justice’s third paper on the reform of family violence law to the Cabinet Social Policy Committee, which can be found on the Law Commission website at:
< see also Law Commission Strangulation: The case for a new offence (NZLC R138, 2016) at [1.2] which observes that there has been a “rapid growth internationally in understanding the role played by strangulation in family violence” in the last decade.
is a seriously aggravating feature of a male assaults female offence. As the Law Commission put it, “strangulation is a uniquely effective form of intimidation, coercion and control”.12 His sentence can and should reflect this.
[19] I consider the Judge was right to regard the offending as near to the most serious of male assaults female cases which are not charged as a more serious offence. An 18 month starting point was available because of this. The Judge was also entitled to uplift the starting point because of Mr Bigham-Hill’s previous offending. His previous supervision and short-term imprisonment sentences had not curbed his tendency to offend in this way. A six month uplift was available because of this, albeit such an uplift was at the very top of the available range.
[20] I therefore consider a sentence of 24 months’ imprisonment, before personal mitigating factors are taken into account, was not manifestly excessive and any adjustment to it would constitute unwarranted “tinkering” on appeal.13
Discounts
[21] Counsel for Mr Bigham-Hill submits the Judge should have allowed discounts for personal factors in addition to Mr Bigham-Hill’s guilty plea. The principal mitigating factor his counsel refers to is Mr Bigham-Hill’s remorse as indicated by the letter he read out at the sentencing. It is submitted the Judge erred because he did not make an express finding that Mr Bigham-Hill’s remorse was not genuine.
[22] I do not accept the Judge erred by failing to say he did not find Mr Bigham- Hill’s remorse to be genuine. Whether a discount should be given for genuine remorse is a matter of discretion for the sentencing judge. The pre-sentence report described Mr Bigham-Hill as lacking insight into his offending and saying that all his offending “have been as a result of his partner’s jealousies”. His letter is an improvement on that, but that does not mean the Judge was required to provide a discount for this. As a matter of completeness, the Judge might have expressly said he did not consider the
12 Above.
13 See, for example: Maihi v R [2013] NZCA 69 at [21] and the discussion in Adams on Criminal Law – Sentencing (looseleaf ed, Thomson Reuters) at [SAB5.02].
late expression of remorse as warranting a discrete discount, but it is implicit in his not giving that discount that this was his view.
[23] The other personal mitigating factors relied on were Mr Bigham-Hill’s relative youth, his childhood exposure to violence, and his rehabilitative efforts and needs. However, at 25 years, Mr Bigham-Hill was not especially young. He had previously been sentenced to supervision, a sentence aimed at rehabilitation, but this had not been successful. The pre-sentence report writer considered Mr Bigham-Hill had a high risk of re-offending and a moderate risk of harm in the context of an intimate relationship. The Judge was not required to make any discount for Mr Bigham-Hill’s age, background and rehabilitative efforts in these circumstances.
Conclusion on end sentence
[24] The end sentence was at the top of the available range for this offending and this offender but it was not manifestly excessive.
Leave to apply
[25] Mr Bigham-Hill did not have a suitable address to propose for a sentence of home detention. The Judge declined leave to apply for home detention “given the offence and the views I have expressed about it”.14 That suggests leave to apply was declined because the Judge regarded the offending as too serious. Counsel for Mr Bigham-Hill points out that home detention is available for sentences of imprisonment of two years or less and so by definition this offence was not too serious for home detention.
[26] In my view, leave to apply for home detention was not appropriate for a different reason. Mr Bigham-Hill breached his release conditions on six occasions in 2016. That history indicates Mr Bigham-Hill could not be relied upon to comply with the conditions of a sentence of home detention. The pre-sentence report writer also considered there was a high likelihood of Mr Bigham-Hill not attending or complying
14 Police v Bigham-Hill, above n 2, at [8].
with rehabilitative programmes. Not surprisingly in these circumstances, the pre-sentence report writer recommended imprisonment.
Release condition
[27] Counsel for Mr Bigham-Hill submits the Judge erred by imposing a release condition that Mr Bigham-Hill could not contact the victim without the express permission of the Probation Officer. The condition is said to be unnecessary, and to create an undue burden on Mr Bigham-Hill, when a protection order is also in place. It is said that Mr Bigham-Hill and the victim wish to resume their relationship and the condition to obtain the Probation Officer’s approval will not assist with this and will be a hurdle for Mr Bigham-Hill’s reintegration back into the community.
[28] I do not accept this submission. The victim has expressed a wish to spend her life with Mr Bigham-Hill but this is “as long as you change and get the help”. She also said Mr Bigham-Hill was “out of control” and she was “scared for [her] life”. She also said she wanted a protection order. Mr Bigham-Hill has breached protection orders in the past. The release condition provides the victim with an additional layer of protection, enabling an assessment to be made as to whether contact between the victim and Mr Bigham-Hill will be safe for the victim. It is intended to assist Mr Bigham-Hill’s reintegration, not to hinder it. In my view the release condition was entirely appropriate in the circumstances.15
Result
[29]The appeal against sentence is dismissed.
Mallon J
15 Sentencing Act 2002, s 93; and Parole Act 2002, s 15.
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