Blair v Police HC Dunedin

[2010] NZHC 1027

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2010-412-10

BETWEEN  CHRISTOPHER NARAYAN BLAIR Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 May 2010

Counsel:         A Stevens for Appellant

L Denton for Respondent

Judgment:      13 May 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr Blair appeals against an effective sentence of two years imprisonment imposed on seven offences committed over a one month period.  The charges and

sentences were as follows.

Offence	Section	Maximum Penalty	Sentence
Threatens to kill (x2)	Crimes Act 1961, s 306	7 years imprisonment	2 years’ imprisonment (1 year each cumulative)
Common assault	Summary Offences Act 1981, s 9	6 months imprisonment or $4000 fine	2 months imprisonment (concurrent)
Assault police	Summary Offences Act 1981, ss 9, 10	6 months imprisonment or $4000 fine	2 months imprisonment (concurrent)
Resist police	Summary Offences Act 1981, s 23(a)	3 months imprisonment or $2000 fine	2 months imprisonment (concurrent)
Wilful damage (x2)	Summary Offences Act 1981, s 11(1)	3 months imprisonment or $2000 fine	2 months imprisonment (concurrent)

CHRISTOPHER NARAYAN BLAIR V NEW ZEALAND POLICE HC DUN CRI 2010-412-10  13 May 2010

[2]      On 24 November 2009 the first victim, the appellant’s partner, went to visit him at an associate’s address.   The couple have a two year old son and had been separated for about four months at that time.   (They have since come to an understanding regarding parenting and access issues.)  An argument developed and the victim left.  The appellant phoned and threatened to kill her, saying that if she rang the cops he would shoot her, her mum, her dad, and her brother in the head and would burn down her house and smash every window in her mum’s house.  He also sent a text threatening to kill her.   This incident led to the first threatening to kill charge.

[3]      On 2 December 2009 the police spoke to the appellant about this incident at his family address.  He became abusive.  When told he was under arrest he lashed out at the officers, kicking one of them in the upper thigh.  He later apologised for the assault.  He admitted making threats against his partner but said he did so only to scare her and would not carry it through.

[4]      In the meantime, he had become involved in an altercation with another male at a supermarket car park on 27 November.  During the argument he kicked a car six or seven times.

[5]      On 18 December the police arrested the appellant.  While being processed he yelled  at  a  constable,  saying the  officer  had  better  watch  his  back  because  the appellant would kill him.   He repeated that threat, adding that he would kill the officer’s family.

[6]      On  29  December  the  appellant  returned  home  intoxicated  and  became involved in an argument with his father about breaching his bail conditions, which prohibited alcohol.  He became aggressive and abused his father before pushing him forcefully in the chest, knocking him back against a door.   The appellant left the house, slamming the front door violently and smashing a glass panel.  He also lashed out  at  the  door  with  his  foot,  breaking  another  panel.    He  was  located  in  an intoxicated condition in a bar a short time later, and since then has been remanded in custody.

[7]      He  has  a  number  of  previous  convictions  since  2005,  including  two  for breach of community work, one for offensive behaviour, and two related to alcohol.

[8]      Sentencing the appellant on 15 March, the Judge reviewed the facts and identified aggravating factors as follows:  there were four separate sets of charges; the offending against his father occurred while he was on bail;  there was repetition of similar offending;   and he assaulted his father while on bail for assaulting a constable.  The only mitigating factor was the guilty pleas.  The Judge noted that the appellant has no previous convictions for violence.

[9]      The  pre-sentence  report  recorded  that  the  appellant  is  22.    He  reported remorse, stating that he just wanted to be with his family, get a job, and work hard. Things had spiralled out of hand because of the separation, which was “killing me inside”.    He had  said  things  he did  not  mean,  reacting  badly to  the  emotional upheaval in his life.   Although he had breached previous sentences of community work, he had completed his last sentence quickly.   His risk of reoffending was considered low to moderate, and could be lowered further if he was genuinely motivated to address his propensity for violence.   He would be eligible for a programme such as Stopping Violence.  Supervision was recommended.

[10]     The Judge accepted that alcohol was a factor in the offending, observing however that alcohol is not a mitigating factor.  He considered the offending serious, noting that the maximum penalty for threatening to kill is seven years imprisonment and there were two such charges.   In the circumstances, the appellant’s need for rehabilitation was a secondary purpose of sentencing.    The primary purposes must be denunciation and deterrence.   Accordingly a sentence of community work and supervision would not suffice.

[11]     The Judge took a starting point of 18 months imprisonment for the first threatening to kill offence.  That starting point covered all the offending on 24 and

27 November and 2 December 2009 (threatening to kill his partner, assault on police, resisting, and intentional damage).  That was reduced by six months for the guilty plea,  resulting  in  a  sentence  of  12  months  imprisonment  on  the  lead  offence.

Concurrent sentences of two months imprisonment were imposed on the other charges.

[12]   A sentence of 12 months imprisonment was imposed on the charge of threatening to kill the police officer and his family.  Because it was similar offending which occurred while he was on bail, the sentence had to be cumulative.

[13]     The charges arising on 29 December 2009 involving the appellant’s father resulted  in  sentences  of  two  months  imprisonment.     Those  sentences  were concurrent, because to impose any additional sentence on those charges would run the risk of breaching the totality principle.

[14]     The first question is whether the Judge was right to adopt a starting point of

18 months for each of the threatening to kill charges.  (No starting point was given for the second charge, but a starting point of 18 months seems implicit in the Judge’s reasoning.)

[15]     The maximum sentence for threatening to kill is seven years imprisonment, but there is no tariff and sentences have ranged from long periods of imprisonment to discharge without conviction.   Ms Denton referred me to a number of authorities, which I will list, but they are on very different facts.[1]   As the Court of Appeal noted in R v Chiyabi it is difficult to compare cases based solely on the words uttered.[2]

[1] Terry v R CA45/00; Police v Edmonds HC Napier AP24/01, 29 June 2001; R v Penney CA24/04.

[2] R v Chiyabi [2008] NZCA 10 at [22].

The Judge must consider the circumstances in which the threat was uttered and whether the appellant had the means and opportunity to carry it out.   In Dodd v Police Harrison J found that the starting point could not exceed 12 months in a case in which the offender threatened to kill the victim while in the victim’s presence and armed with an airgun.[3]   In R v Wakelin, Priestley J held that a starting point of 18 to

[3] Dodd v Police HC Tauranga CRI 2009-470-35, 9 December 2009.

20 months was justified in a case where the offender sat down to dinner with the

victim, holding a large kitchen knife, and told her that he was going to kill her before pursuing her from the house.[4]   Byrne v Police involved similar threats to those in this case, first against his partner then against an arresting officer, but they were preceded

by actual violence against the partner.   John Hansen J held that the threats were drunken bravado and the starting point could not exceed 12 months.[5]

[4] R v Wakelin HC Auckland T030456, 20 June 2003.

[5] Byrne v Police HC Dunedin CRI 2008-412-4, 5 March 2008.

[16]     In this case, the Judge was dealing with a young man who was coping badly with a major emotional upheaval.   So far as the first threat is concerned, he was plainly trying to stop the victim complaining to the police, but the threat itself was somewhat implausible, affecting as it did a group of people, and he had taken no action against the victim when he was with her before the threat was uttered by telephone.  That is consistent with his contention that he did not mean to carry the threat through.   He was certainly in no immediate position to carry out his threat against the constable.  The threats were undoubtedly disturbing for the victims, but they are at the lower end of the scale for this offence.

[17]     The  Judge  also  approached  sentencing on  the  basis  that  there  were  four discrete incidents (although they were sentenced in three groups).   It was open to him to do so, but there was a spate of incidents connected by the same underlying cause.  In those circumstances, the cumulative sentences might be excessive unless an adjustment was made for totality.  The Judge did make an adjustment but it was a very modest one.  Further, the list of aggravating factors (paragraph [8]) above risks over-emphasis, with each offence being sentenced also serving as an aggravating factor for the next.  Following Hessell it would have been helpful had the aggregate total  sentence been  calculated  before  the  discount  for  guilty pleas.    Lastly,  the offending was the appellant’s first involving violence, and his prospects of rehabilitation were promising.

[18]     For  all  of  these  reasons,  I  am  satisfied  that  the  effective  sentence  is manifestly excessive.

[19]     By  reference  to  the  authorities  mentioned  above,  I  consider  that  the appropriate starting point for the first group of offences is 12 months imprisonment. The second threatening to kill charge merits a cumulative sentence.   It occurred while he was on bail and some weeks after the first incident.  Even so the starting point could not exceed 12 months imprisonment.  The offences involving his father

warrant a starting point of three months having regard to the use of violence and breach of bail.  There are no other aggravating factors since the previous convictions are not of the same type.  The total thus arrived at is 27 months.

[20]     From that must be deducted one-third or nine months for the early guilty pleas.  I agree with the Judge that there are no other mitigating factors.  Remorse is reflected in the discount for the guilty pleas, and he cannot point to previous good character.   However, I consider that a further adjustment of three months must be made to reflect totality.   That would result in an effective sentence of 15 months imprisonment.

[21]     That brings me to the question of home or community detention.  Regrettably for the appellant, the Probation Service, while noting that he is a suitable candidate, opposed the proposed address, that of his parents, on the ground that his father is a victim of his offending and he has bullied his brother, who also lives there.  I share that concern.   The appellant will pose a risk to others until his anger and alcohol issues are addressed.   I agree with the Judge that those issues can be addressed in other ways, specifically through release conditions.  These considerations rule out a community-based sentence.  In any event I agree with the Judge that imprisonment is required because the offending as a whole calls strongly for specific deterrence and accountability.

[22]     Accordingly,  the  sentences  imposed  in  the  District  Court  on  the  two threatening to kill charges are set aside.  A sentence of seven and one half months imprisonment is imposed on each of the two charges, to be served cumulatively upon one another.

[23]     All of the other sentences are unaltered, meaning that the appellant will serve concurrent terms of two months imprisonment on all the other charges.  The release conditions imposed in the District Court also remain.

Miller J

Solicitors:

Crown Solicitor’s Office, Dunedin for Respondent