Birch v The the King
[2022] NZHC 2448
•23 September 2022
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2022-425-14
[2022] NZHC 2448
BETWEEN MATTHEW JAMES BIRCH
Appellant
AND
THE KING
Respondent
Hearing: 19 September 2022 Appearances:
W N Dawkins for Appellant M Brownlie for Respondent
Judgment:
23 September 2022
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 23 September 2022 at 1.15 pm
Registrar/Deputy Registrar Date:
BIRCH v THE KING [2022] NZHC 2448 [23 September 2022]
An appeal against sentence
[1] Matthew Birch was sentenced by Judge Brandts-Giesen1 to 16 months’ imprisonment on charges of assault on a person in a family relationship,2 breaching a protection order3 and attempting to pervert the course of justice.4 Mr Birch appeals the sentence. For Mr Birch, Mr Dawkins submits the appropriate calculation of a period of imprisonment was no longer than 13 months’ and that ought to have been commuted to a sentence of home detention.
The facts of Mr Birch’s offending
[2] Mr Birch (38 years old at the time) was in a relationship with the victim for approximately seven months. He resided with her and her children in Invercargill.
Assault
[3] In the evening of 26 October 2021, the victim was at her home address alone, and drinking some wine. An unknown woman sent her several messages and screenshots via Facebook Messenger stating Mr Birch had been trying to initiate a relationship with that woman. This upset the victim, so she phoned Mr Birch who was drinking with workmates. He denied the allegations and soon arrived home. She attempted to lock him outside, forgetting another door was unlocked. He entered the house reasonably intoxicated and they began to argue.
[4] The victim asked him why he left his phone in his vehicle and asked him to go to get it. He refused, saying she would lock him outside. She told him to leave multiple times. He eventually went outside to get his phone. She locked both doors so he could not get back inside. He found an open window and climbed through it. He took her phone and ran upstairs. She was scared and decided she should leave. She went upstairs to get her phone off Mr Birch before leaving but he refused. She returned downstairs with him following her and he somehow got hold of her car keys. She picked up the dog and carried him out to the car to get his lead. Mr Birch then
1 R v Birch [2022] NZDC 13294.
2 Crimes Act 1961, s 194A; maximum penalty two years’ imprisonment.
3 Family Violence Act 2019, ss 90(c) and 112(1)(a); maximum penalty three years’ imprisonment.
4 Crimes Act, s 117(a); maximum penalty seven years’ imprisonment.
approached her and “used force”. As a result, the victim fell on her right side onto the concrete driveway. Mr Birch and the dog also hit the ground with the dog yelping. The victim ran to the neighbour’s house and hid behind a power box. Mr Birch left in his van and, as he drove past, saw her. She went back to her address. Moments later Mr Birch returned and threw her phone at her. He went upstairs and when he came down he was carrying his rifle and his jar of cannabis. He got back into his van and left.
[5]The victim was in much pain. She suffered considerable bruising.
[6] When spoken to by police, Mr Birch admitted to roughly grabbing the dog from the victim’s arms, causing the victim to fall to the ground. He accepted this constituted an assault. He stated the victim had angrily confronted him and had hit him a couple of times. He said she got very angry and was leaving with his dog. He said he decided to take the dog back as it belonged to him. He went up to his partner and grabbed the dog “as [he] would grab a rugby ball from someone”, causing her to fall hard onto the ground.
[7]Mr Birch denied to the police that he had a firearm.
[8] Following that incident, a temporary protection order was issued on 1 November 2021 and served on Mr Birch.
Breaching protection order/attempting to pervert the course of justice
[9] On 7 November Mr Birch messaged an associate of the victim, asking her to make contact with the victim. He stated “if [the victim] drops charges I’ll put 2G in her account and she will never hear or see from me again”. As a result of the message the associate spoke to the victim straight away. The victim did not comply with the request. On 16 November, Mr Birch contacted the same associate saying “[w]ell get her to write a letter to the judge and I’ll make everything go away”. A second message said “[a]ll it needs to say is she was angry and it didn’t happen”. A third said “… also drop Protection Order”. On 16 November the victim reported these messages to the police.
[10] When spoken to by police on 26 November, Mr Birch admitted the facts as outlined and stated “[he] was just trying to resolve things before Court and didn’t realise I was in the wrong by doing this”. He said “I should have read things better, I didn’t realise that I was breaching”.
The District Court decision
[11] The Judge found there had been an “ugly assault” followed by a protection order breach within a week of the order being served. He noted the attempt to pervert the course of justice was through a friend of the victim rather than direct but considered that in relation to mitigation “a two-edged sword”. The Judge considered a direct approach to the victim would have resulted in almost certain rejection, whereas Mr Birch might have manipulated the victim more successfully by the indirect approach he adopted.
[12] The Judge acknowledged Mr Birch had participated in restorative justice but noted no satisfactory result was reached and Mr Birch had been “somewhat inconsistent” in relation to his lying. The Judge considered Mr Birch’s degree of remorse as “not necessarily sincere but self-serving”.
[13] The Judge took the perverting the course of justice charge as the lead offence, noting it went to the very heart of the prosecutorial process. He noted most people would know the charge was serious and that very few people try to pervert the course of justice in the way Mr Birch did. He adopted a starting point of 18 months’ imprisonment. The Judge then uplifted the sentence by three months for the protection order breaches and by three months for Mr Birch’s previous convictions. He granted a full 25 per cent guilty plea discount and five per cent credit for remorse and participation in restorative justice. That resulted in an end sentence of 16 months’ imprisonment with favourable rounding.
[14] The Judge declined to commute that sentence to home detention. He stated that attempts to pervert the course of justice require a stern and custodial response,
citing the Court of Appeal’s judgments in R v Churchward and Williams v R.5 He considered a man aged 38 years would have been well aware of the consequences of trying to stop a process in an unorthodox and inappropriate way.
Principles on appeal
[15] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. 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 be imposed.6 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 relevant sentencing principles.7
[16] Home detention is an alternative to a short-term sentence of imprisonment.8 The court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.9 An appeal court must focus on the identification of error, having regard to the discretionary nature of the decision.10
Submissions
Appellant’s submissions
[17]Mr Dawkins, for Mr Birch, submitted:
(a)the Judge’s starting point (18 months’ imprisonment) was excessive;
(b)the uplift of three months’ imprisonment should have been on the charge of assault on a person in a family relationship;
(c)the three month uplift for previous convictions was excessive;
5 R v Churchward CA439/05, 2 March 2006; and Williams v R [2021] NZCA 54, (2021) 29 CRNZ 789.
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
7 Ripia v R [2011] NZCA 101 at [15].
8 Sentencing Act 2002, s 15A(1)(b).
9 Section 15A(1)(a).
10 Doolan v R [2011] NZCA 542 at [39].
(d)credit should have been given for time spent on bail with restrictive terms; and
(e)the Court erred in refusing to commute the sentence to home detention.
Starting point
[18] Mr Dawkins, in his written submissions, submitted a starting point of 18 months’ imprisonment was manifestly excessive and a starting point of 13 months’ should have been adopted. He referred in support of his submission as to that starting point to R v Churchward,11 R v Sharma,12 Thomas v R,13 Williams v R14 and Henare v R15. He submitted Mr Birch’s offending was similar to that in Churchward and Henare and less serious than that in Sharma and Thomas. However, in his oral submissions (and upon reflection), Mr Dawkins recognised that Mr Birch’s offering of money ($2,000) to have the victim drop the charges was a serious aggravating feature of the offending. He accepted it called for something more than the Court of Appeal’s 12 months starting point in Churchward but submitted it did not justify an adjusted starting point six months higher than that.
Uplift on other charges
[19] Mr Dawkins submitted the Judge ought to have imposed the three month uplift on the charge of assault on a person in a family relationship rather than on the charge of breaching the protection order. This is what the Crown had submitted and Mr Birch’s counsel had conceded. Mr Dawkins acknowledged, however, that this was not material to the appeal.
Uplift for previous convictions
[20] Mr Dawkins submitted the uplift for previous convictions was excessive in light of the fact Mr Birch had no previous convictions for perverting the course of
11 R v Churchward, above n 5.
12 R v Sharma [2017] NZHC 2925.
13 Thomas v R [2020] NZHC 2138.
14 Williams v R, above n 5.
15 Henare v R [2018] NZHC 900.
justice. He identified the uplift for Mr Birch’s previous convictions was as great as the uplift for the offending they related to.
Credit for period on restrictive bail
[21] Mr Dawkins also noted Mr Birch was subject to bail from 30 November 2021 to 14 July 2022. Mr Birch was subject to a 9:00 pm to 5:00 am curfew from November until 14 March 2022 before it was relaxed (to 9:00 pm to 1:30 am) to facilitate his employment. Mr Dawkins submitted these restrictive bail conditions for seven and a half months justified a sentencing credit.
Imprisonment instead of home detention
[22] Finally, Mr Dawkins submitted the Judge erred in failing to commute a sentence of imprisonment to a sentence of home detention. He submitted the Judge, in being influenced by principles of deterrence and denunciation, did not consider the other purposes and principles of sentencing when determining imprisonment was the least restrictive outcome appropriate in the circumstances.
[23] Mr Dawkins referred to the decision of the Court of Appeal in Fairbrother v R in relation to the commuting of a sentence of imprisonment to one of home detention.16 Mr Dawkins noted the Court’s reference to cases in which sentences of imprisonment have been quashed and home detention substituted by reason of errors of law.17 One situation identified by the Court is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.18 Referring to that situation, Keane J, delivering the judgment of the Court, observed:
[30] That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
16 Fairbrother v R [2013] NZCA 340.
17 At [29].
18 At [29], citing Manikpersadh v R [2011] NZCA 452 at [17].
[24] Mr Dawkins submitted that the Judge in this case, by not sentencing Mr Birch to home detention, had failed to impose the appropriate, least restrictive sentence.
[25] Mr Dawkins noted the legislative amendments (to the Sentencing Act 2002) since Churchward was decided which have created home detention as a discrete sentencing option. He suggested (as an observation from the bar) that in recent years sentencing Courts have been prepared to commute a sentence of imprisonment to one of home detention more readily than a strict application of the observations in Churchward might require.
[26] Mr Dawkins submitted there are a number of circumstances relating to Mr Birch’s offending and circumstances generally that placed him in the “exceptional” category which the Court of Appeal recognised in Churchward would justify the imposition of a sentence (for attempting to pervert the course of justice) less than imprisonment. Mr Dawkins pointed in particular to three matters:
(a)Mr Birch would have a good address available for the purposes of home detention;
(b)he has the support of an employer and would have sound employment;
(c)it is some eight years since his previous family violence convictions.
Respondent’s submissions
[27] Mr Brownlie, for the Crown, submitted a stern sentence was warranted on the basis of denunciation and deterrence. He acknowledged the assessed starting point could be considered stern but submitted it was within range. Mr Brownlie submitted the three month uplift for previous convictions was warranted given Mr Birch’s history of family violence offending (2011, 2013, 2014). Mr Brownlie referred to Kreegher v R19 in support of a submission the length of time Mr Birch was subject to curfew was insufficient to require discrete credit. Mr Kreegher’s bail conditions (a curfew from 7:00 pm to 7:00 am) were identified by the Court of Appeal as “only moderately
19 Kreegher v R [2021] NZCA 22, (2021) 29 CRNZ 622.
restrictive”. What led to a discount of five per cent in that case was the very lengthy (three year) period without breach.20
[28] Mr Brownlie submitted the purposes of denunciation and deterrence could not be achieved by a sentence short of imprisonment in this case. He characterised Mr Birch as a recidivist family violence offender. Mr Brownlie submitted that the deterrence of attempt to pervert the course of justice in relation to the outcome of family violence offending is particularly important — the creation in recent years of specific offences such as assault in a family relationship and strangulation, with their own significant penalties, signals Parliament’s identification that there is to be focus in sentencing on the effect of victims of offending of that nature.
[29] Mr Brownlie observed that in this case (as contrasted with others), Mr Birch was seeking to persuade the victim of his own violence. He was endeavouring unlawfully to obtain the removal of the protection order which was in place for the very protection of the victimised partner. Mr Brownlie further observed that, where the underlying offending allegedly involved domestic violence, the victim who is confronted with a suggestion that she withdraw her complaint is more likely to view that suggestion as implicitly accompanied by a threat of violence if she does not withdraw her complaint.
Analysis
Imprisonment or home detention?
[30] The attempting to pervert the course of justice charge was clearly the lead offence. The appropriateness of a stern starting point is reflected in the judgments of the Court of Appeal both in R v Churchward and Williams. What was stated in those cases bears repetition:
(a)R v Churchward:21
As has been repeatedly observed in this Court and the courts below, any attempt to disturb the process of administration of justice is to be
20 At [49].
21 R v Churchward, above n 5, at [14].
deplored and, following conviction, is, in all but the most exceptional circumstances, to be met with a moderately lengthy term of imprisonment.
The Court in allowing the Crown’s appeal replaced a sentence of community work with one of nine months’ imprisonment (with leave to apply for home detention).
(b)Williams v R:22
The charge of attempting to dissuade a witness from giving evidence is more serious [than Mr Williams’ other charges]. Such offending strikes at the heart of the administration of justice and it requires a condign and deterrent sentence.
[31] I do not overlook Mr Dawkins’ submission that Churchward was decided before amendments to the Sentencing Act 2002 which created home detention as a discrete sentencing option. That said, it is to be noted that the Court of Appeal decided Williams as recently as March 2021. In Vince v R, Nation J in 2017, was called upon to consider a point similar to that raised by Mr Dawkins in relation to the emphasis upon home detention.23 His Honour, upon a review of a number of decisions subsequent to Churchward, including instances where sentences of home detention have been imposed by the High Court for offences of attempting to pervert the course of justice, concluded that more recently the Court of Appeal decisions effectively required an amended approach to that in Churchward. In particular, Nation J referred to the (2011) judgment of the Court of Appeal in Doolan v R.24 In that case, Stephens J, delivering the judgment of the Court observed in relation to the eligibility of a defendant for home detention:
[37] This issue was the subject of observations by William Young P in his dissenting judgment in R v Vhavha as follows:25
[29] Eligibility for home detention depends upon the sentencing judge deciding that, but for the availability of home detention, the offender would otherwise be sentenced to a short-term sentence of imprisonment (ie of two years or less): s 15A of the Sentencing Act 2002. In effect, the Court is given a discretion to commute to home detention what would otherwise be a short-term sentence of imprisonment. There is nothing in the Sentencing Act to suggest a presumption for or against such commutation, either generally or in
22 Williams v R, above n 5, at [23].
23 Vince v R [2017] NZHC 2358.
24 Doolan v R [2011] NZCA 542.
25 R v Vhavha [2009] NZCA 588 (emphasis added).
respect of particular types of offence. So what is called for is an exercise of sentencing discretion in a way which gives effect to the purposes and principles of sentencing recorded in ss 7 and 8 of the Sentencing Act.
[38] These comments were endorsed by this Court in Osman v R.26 In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender.27 The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.
[39] In terms of appellate review of such sentencing decisions, the court on appeal must focus, as with other appeals against sentence, on the identification of error, having regard to the discretionary nature of the decision.
[32] This and other authorities led Nation J in Vince to conclude (in relation to the continuing authority of Churchward):28
I consider that, consistent with Churchward, it remains the case that offending by way of perverting or attempting to pervert the course of justice will usually require a sentence where the emphasis is on denunciation and deterrence so that often imprisonment will be required.
[33] Given that the Court of Appeal delivered its decision in Williams more recently (namely in 2021), those observations still need to be read in light of the Court of Appeal’s confirmation that this type of offending “requires a condign and deterrent sentence”.
[34] Accordingly, the discretionary sentencing decision (between imprisonment or home detention) engages all of the principles and purposes in ss 7 and 8 of the Sentencing Act — including under s 8(g) that the Court “must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences …”. However, the Court of Appeal has made clear in Williams that the “appropriate” (or “condign” as it appears in Williams) sentence must also be deterrent.
26 Osman v R [2010] NZCA 199 at [20].
27 See Manikpersadh v R [2011] NZCA 452 at [14]–[19].
28 Vince v R, above n 23, at [22].
[35] In Williams, Mr Williams told his partner, who had a mild intellectual disability, not to be a witness against him, not to go to court, but instead to tell the police she did not know anything. He repeated these instructions over some three days and verbally abused her. He took away her witness summons and said that, if she went to court, his lawyer would make her cry. There was no threat of violence and the witness was not in fact dissuaded. The Court of Appeal commented a starting point of 12 months’ imprisonment would have been appropriate. (The witness in that case was neither the complainant nor a critical witness to the prosecution case).
[36] The Crown submitted here, and I agree, that Mr Birch’s offending was more serious than Mr Williams’. Mr Birch attempted to dissuade a victim of his own family violence offending, breaching a protection order as he did so. His attempting to bribe her was an aggravating feature.
[37] In Thomas v R, where Mr Thomas faced family violence charges, the Court of Appeal considered a starting point of 18 months excessive for one message telling the complainant what she “needed to tell police”.29 The complainant refused and gave evidence at trial. The Court of Appeal did not indicate what the appropriate starting point would have been but imposed an end sentence of 10 months imprisonment. The Court recognised, where an attempt to pervert the course of justice is associated with violent offending, the previous violence acts as an implicit threat. Mr Birch’s offending was more serious than the defendant’s in Thomas.
[38] Because Mr Birch’s attempted to bribe the sole witness and complainant of his family violence offending, with that violence acting as an implied threat, the starting point of 18 months’ imprisonment adopted by the Judge was well within range. While Mr Dawkins referred to other authorities, most of which involve more serious offending, they do not assist in displacing this conclusion.30
[39] Cases such as Williams and Thomas reinforce the appropriateness of the Judge’s decision determination that Mr Birch’s offending called for a sentence of
29 Thomas v R [2020] NZCA 257.
30 R v Churchward, above n 5; R v Sharma, above n 12; Thomas v R, above n 13; and Henare v R, above n 15.
imprisonment rather than a community-based sentence. They also point to the Judge’s 16 months’ sentence being within range — as it transpired, Mr Dawkins did not strongly pursue his submissions to the contrary (on the subject of the length of the sentence) but as those grounds of appeal were not formally withdrawn I have still considered them.
[40] Turning to the balance of Mr Dawkins submissions, I agree that the uplift of three months should have been imposed on the assault charge as was submitted by the prosecutor and agreed by the defence. The protection order breach and the perverting the course of justice charge related to the same actions, and the fact Mr Birch breached the protection order was appropriately taken into account to justify a starting point of 18 months’ imprisonment. I recognise Judges in the District Court must sentence in different circumstances to Judges in this Court. District Court Judges are often required to express themselves orally, at considerable speed and with considerable brevity. As Mr Dawkins acknowledged, this error was not material to the appeal.
[41] Mr Dawkins’ submission as to an excessive uplift for Mr Birch’s previous convictions has, at first blush, some attraction — Mr Birch did not have any previous convictions for perverting the course of justice nor for similar offences. But, as submitted by Mr Brownlie, the relationship between the current offence and Mr Birch’s previous convictions for family violence offending could properly bring those earlier offences into account. Mr Birch’s attempt to pervert the course of justice was entirely focused on avoiding the consequences of his repeated family violence offending. That was sufficient to justify the Judge’s uplift for those previous convictions.
[42] Nor do I find there to have been error in the Judge’s refusal to give credit for time spent by Mr Birch on bail with some restrictive aspects. Mr Brownlie correctly identified that the restrictions imposed on Mr Birch were relatively light-handed and were not of the extended duration that called for a credit in cases such as Kreegher.31
[43] I therefore conclude there was no error in relation to either the uplift for previous convictions or the lack of credit for the period on restrictive bail.
31 Kreegher v R, above n 19.
[44] Even had the Judge erred in relation to those matters, I would have found that any modest adjustments required in that regard were counterbalanced by the credit the Judge gave to Mr Birch. That credit can be properly viewed as generous given the Judge’s understandable assessment that Mr Birch’s asserted remorse was “not necessarily sincere but self-serving” and the Judge’s correct observation that “nothing really was achieved at restorative justice”. The Judge was entitled to remain sceptical as to Mr Birch’s bona fides in the restorative justice process given his vacillation between acknowledging his lying in relation to events and his assertion that he had not lied at all. The five per cent allowance for remorse and participation in the restorative justice process, particularly when set alongside the 25 per cent allowance for Mr Birch’s guilty plea, can be viewed as generous.
[45] The ultimate test in relation to the sentence imposed by the Judge is whether the end sentence was manifestly excessive. Such has been emphasised by the Court of Appeal repeatedly.32 The end sentence of 16 months’ imprisonment was a period clearly within range.
[46] In relation to the Judge’s refusal to commute the sentence of imprisonment to home detention, for the reasons identified above at [30]–[34], I do not find the Judge erred in the emphasis placed upon deterrence and denunciation. Those purposes made the sentence of imprisonment the appropriate sentence in Mr Birch’s particular case. The other important purposes of sentencing did not individually or collectively displace the appropriateness of the sentence of imprisonment.
[47] Here the Judge was required to make a decision of a discretionary nature. His Honour did not depart from an established principle. He was justified in finding that Mr Birch’s offending did not raise such as to justify a departure from the line of authority that calls for, in relation to offending such as Mr Birch’s, a moderately lengthy term of imprisonment.
32 Thomas v R, above n 29, at [22]–[23]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Feau v R [2019] NZCA 72 at [13]; and Vainu v R [2014] NZCA 375 at [26].
Outcome
[48]I dismiss the appeal.
Osborne J
Solicitors:
Dawkins Law, Invercargill Crown Solicitor, Invercargill
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