Blance v The the Queen

[2022] NZHC 1040

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2022-441-004

[2022] NZHC 1040

JACK LYALL BLANCE

v

THE QUEEN

Hearing:

12 May 2022

Counsel:

B Frendin for Appellant

M J R Blaschke for Crown

Judgment:

13 May 2022

JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 15 February 2022, Mr Jack Balance, aged 39, was sentenced to a term of three years nine months’ imprisonment following his conviction for two representative charges:1

(a)one of strangulation2; and

(b)one of assault on a person in a family relationship.3

1      R v Blance [2022] NZDC 3489.

2      Crimes Act 1961, s 189A(b), maximum penalty seven years’ imprisonment.

3      Crimes Act 1961, s 194A, maximum penalty two years’ imprisonment.

BLANCE v R [2022] NZHC 1040 [13 May 2022]

[2]    The sentence included a concurrent sentence of one years’ imprisonment in respect of the assault charge.

[3]    Mr Blance now appeals his sentence on the basis that it was manifestly excessive. In particular, Mr Frendin, counsel for the appellant, submits that the sentencing Judge erred by failing to give adequate consideration to the principle of totality and by imposing uplifts that were too high.

[4]    Mr Blaschke, counsel for the respondent, opposes the appeal, submitting that the Judge made no error and that the starting point and uplifts were well within range. On that basis, he submits the end sentence was not manifestly excessive.

Background

Factual background

[5]    Mr Blance and the complainant were in a relationship for a few months but had known one another for over a decade. In the four-week period between 24 May 2021 and 17 June 2021, there were six incidents in which Mr Blance strangled or otherwise assaulted the complainant. These incidents occurred while Mr Blance was on parole for previous violent offending.

[6]    In the first incident, Mr Blance strangled and punched the complainant after accusing her of contacting another man on Facebook. In the second incident, he accused her of stealing from him, threw her onto the floor and strangled her. The third incident resulted from an argument. Mr Blance repeatedly punched her body, made her lay down on her bed and then stood on her neck. He then injected himself with methamphetamine before demanding the complainant remove her hoodie and then injecting her with a substance against her will. Mr Blance denies he injected her with anything. In the fourth incident, Mr Blance threw the complainant against a wall in the shed while in the presence of her young daughters who witnessed the event. The fifth incident occurred after one of Mr Blance’s associates offered the complainant a cigarette. Mr Blance became jealous and punched her in the face, sat on her and verbally abused her. Later he tipped a can of bourbon over the complainant and punched her several more times. The sixth incident occurred when the complainant

refused to give Mr Blance her car keys. She was sitting on the couch and Mr Blance straddled her, grabbed her neck with both hands and began strangling her.

[7]    The complainant made a statement to Police on 18 June 2021. Mr Blance was arrested that day.

District Court decision

[8]    The Judge had regard to the PAC report, a cultural report produced for the purposes of s 27 of the Sentencing Act 2002,  and  a letter  written by  Mr Blance. Her Honour also considered the impact of the offending on the complainant.

[9]    She considered that any one of the four strangulation incidents could have warranted a starting point of two and a half to three years’ imprisonment.4 She then acknowledged that the incidents had been collated into one representative charge, and therefore involved “a totality assessment within itself”.5 For the strangulation charge, she set the starting point at four and a half years’ imprisonment and then uplifted that by one year for the assaults. She thought that cases involving singular incidents, even if prolonged, were not comparable to the appellant’s offending, which occurred over a period of some weeks.

[10]   Her Honour then uplifted the starting point by a further six months’ imprisonment to reflect the fact that the offending occurred while on parole and previous history of serious domestic violence offending. The fact that there were children present during at least one episode of strangulation was also aggravating.

[11]   Turning to mitigating factors, the Judge held that Mr Blance was entitled to a 25 per cent discount for his guilty plea. She also gave him a discount of 15 per cent to reflect his issues with methamphetamine addiction and the information contained in the cultural report. Her Honour considered that Mr Blance’s methamphetamine addiction was a driver of the offending. The Judge did not consider an additional discount for remorse was warranted over and above that reflected by Mr Blance’s guilty plea.

4 At [22].

5 At [22].

[12]   The end sentence imposed was three years nine months’ imprisonment. The Judge did not impose a minimum period of imprisonment but did grant a protection order in favour of the complainant.

PAC report

[13]   The report writer noted the appellant’s history of appearing before the Courts over the past 22 years, and that the present offending occurred while he was on parole. The appellant did not show remorse until he had spoken to his lawyer. He appeared to minimise the offending and to blame the victim for his offending against her. The report writer assessed him as posing a medium-high risk of harm to others, a medium- high likelihood of further offending, and recommended a sentence of imprisonment.

Position of the parties

Mr Blance

[14]   Mr Frendin, for the appellant, submits that the end sentence was manifestly excessive due to the uplifts being too high and because the Judge did not take into account the totality principle. However, Mr Frendin accepts that the starting point was within the available range.

[15]   Section 85 of the Sentencing Act 2002 requires the Court to consider whether there is proportionality between the totality of offending and the end sentence, ensuring that the sentence imposed reflects the severity of each individual offence while not being disproportionately severe in totality. Mr Frendin referred to several cases that, in his submission, illustrate that the Judge did not consider the principle of totality.

[16]   Mr Frendin submits that Allan v Police involved offending of a similar but more serious gravity than to that of Mr Blance because of Mr Allan’s sexual offending and the more severe injuries to the complainant in that case.6 A starting point of five years’ imprisonment was upheld on appeal to this Court.7 The sentencing Judge in

6      Allan v Police [2021] NZHC 379.

7 At [27].

that case adopted a one-month cumulative prison sentence to reflect that the offending took place during Mr Allan’s sentence of community detention. Mr Frendin suggests that in light of that case, a starting point of four years nine months’ imprisonment would have been more appropriate in sentencing Mr Blance. Further, he submits that the six-month uplift for offending while subject to parole and to reflect his criminal history appears excessive when compared to Allan.

[17]   Mr Frendin also refers to Tuwhangai v Police.8 That case involved a prolonged attack over a period of six hours and resulted in a starting point of three years three months’ imprisonment. The Judge uplifted that by six months to account for additional charges of injuring with intent and threatening to kill. Mr Frendin acknowledges that the gravity of Mr Blance’s offending is higher than that in Tuwhangai in totality. However, he submits that Mr Blance’s charges that the Judge used to justify an uplift are less serious and should, therefore, have attracted an uplift less than that given in Tuwhangai.

[18]   Finally, Mr Frendin submits that the offending in T v Police is similar enough to Mr Blance’s offending to warrant a similar starting point of four years’ imprisonment.

The Crown

[19]   Mr Blaschke, for the Crown, submits that the Judge did not err either in setting the starting point or in the uplifts she imposed. In his submission, the Judge was correct to assess the offending as serious. In his submission, the Judge adopted a starting point towards the bottom of the range suggested in Ackland v Police.9 Factoring in the assaults around the strangulations and the two separate incidents of assault, Mr Blaschke submits the starting point was within the available range when totality is considered. Further, he submits it could well have been higher.

[20]   With respect to the uplift point, Mr Blaschke submits that the uplift was appropriate in light of Mr Blance’s previous convictions for family violence, the fact

8      Tuwhangai v Police [2020] NZHC 3428.

9      Ackland v Police [2019] NZHC 312 at [31].

this offending occurred while on parole and the lack of insight shown in his PAC report and cultural report. The uplift of six months from the five and a half years starting point amounted to a nine per cent increase. Mr Blaschke submits this was well within an acceptable range.

[21]   Further, Mr Blaschke submits that the discounts applied by the Judge were generous given her Honour was not entirely convinced there was a credible connection between Mr Blance’s background and his offending.

[22]   For those reasons, Mr Blaschke submits the end sentence was not manifestly excessive.

Approach to appeal

[23]   This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.10 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.11

Analysis

[24]   I have come to the conclusion that the starting point was within the acceptable range given the seriousness of the offending, the number of incidents captured by the representative charge and the violence that surrounded the strangulation charges.   Mr Blaschke’s submissions are compelling, and I have no doubt that higher starting points were available to the Judge at sentencing.

[25]   Over the course of a relatively short relationship, Mr Blance strangled or otherwise assaulted the complainant six times. He did this while on parole for aggravated assault, two breaches of a protection order, an assault, as well as burglary and various theft/dishonesty charges. As Mr Blaschke submits, the aggravating factor

10     Tutakangahau v R [2014] NZCA 279.

11     Ripia v R [2011] NZCA 101 at [15].

of the strangulation occurring against an intimate partner, in her home, has an impact more serious than the immediate physical impact. Further, as Mr Frendin acknowledges, the gravity of Mr Blance’s offending is higher than that before the Court in Allan. Here, there were four separate instances of strangulation over some four weeks that each could have warranted a starting point of two and a half to three years’ imprisonment. Neither Allan nor Tuwhangai are really comparable to the present case, both involving acts of violence that occurred within a much shorter period of time, as opposed to prolonged aggression over the course of weeks. The fact that the complainants in those cases suffered injuries of a more permanent nature is less relevant than the fact that the nature and circumstances of the offending were different.

[26]   Doogue J in Houkamau v Police12 referred to the factors identified by the Law Commission in its report advocating for a new offence of strangulation.13 The factors said to be the hallmarks of the worst type of strangulation were aspects of controlling and coercive behaviour including entering a victim’s home in breach of a protection order, strangling the victim on and off for several minutes leaving her struggling for breath, rendering a victim incontinent and unconscious, thinking she will die knowing the perpetrator has the power to kill her and subsequently living in fear for her security and life.

[27]   Doogue J noted that strangling which causes unconsciousness or urinary or faecal incontinence is particularly serious as both phenomena are strong indicators of near-fatal strangulation.14 In the present case, the second incident involved strangling to the point of incontinence and the sixth incident involved strangulation to the point of unconsciousness.

[28]   The length of time over which these incidents were repeated is also indicative of a sustained attempt by the appellant to exert control over and coerce the victim. I therefore view the facts of this matter as being more serious rather than less serious than those in Allan v Police.15

12     Houkamau v Police [2019] NZHC 2743.

13     Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016).

14     Houkamau v Police, above n 12, at [21].

15     Allan v Police, above n 6.

[29]   I accept that a starting point of at least three years’ imprisonment could have been justified for any one of the second, third and sixth incidents, applying Allan and T v Police. In light of the four incidents of strangulation and the two additional incidents of assault, the starting point adopted by the sentencing Judge was well within range. The final sentence  in  T  v  Police  was  three  years,  for  offending  which Mr Frendin accepts was less serious than in the present case. This was upheld on appeal. The additional nine months to which the appellant is subject is well justified, given the prolonged abuse, associated assaults, presence of children, and previous offending. The end sentence was well within range.

[30]   It is clear that the Judge considered the offending in light of the principle of totality. She stated:16

…bearing in mind the purposes and principles of sentencing which involve things like imposing sentences with a deterrent aspect to them, bearing in mind the public interest, bearing in mind the least restrictive outcome in the circumstances, bearing in mind totality where there are a number of incidents that are referred to at once, bearing in mind the other relevant factors in the Sentencing Act 2002 of course too, I need to take those into account, but as far as the aggravating features of this offending are concerned, I have to regard the strangulation in the context of these four sustained efforts on your partner at the time. So what we have is within about a one month period are numerous occasions where this in fact occurred.

[31]   As to the uplift of one year for the representative charge of assault on a person in a family relationship, I agree with Mr Blaschke that an assessment of totality was inherent in the Judge’s conclusions, the uplift reflecting all of the additional violence not included within the strangulation charge, in totality. Such an analysis was necessary given the presence of a representative charge to essentially reflect violence on six different occasions. The Judge did not apply an overly mechanical approach, but rather properly considered the subtleties of the offending in circumstances in which they were not able to be definitively delineated.17 The six-month uplift for previous offending also adequately recognised the appellant’s extensive history of family violence offending against previous partners.

16 At [13].

17     Houkamau v Police [2019] NZHC 274 at [33]; see also T v Police [2019] NZHC 3375.

[32]   Further, the appellant was given a full 25 per cent discount for his guilty plea, followed by a further 15 per cent for factors identified in the s 27 report, including addiction. Nor was a minimum period of imprisonment imposed. This means that the appellant could potentially be released on parole after roughly 15 months’ imprisonment. A 40 per cent discount was, in my view, the absolute maximum available to the appellant. Mr Blaschke’s submission that the end sentence could have been sterner in some respects, has weight. The Judge did not err, nor do I think the end sentence is manifestly excessive, when considering the seriousness of the offending or the appellant’s culpability. The end sentence of three years nine months’ imprisonment was within range and could have been higher.

Result

[33]The appeal is dismissed.

Churchman J

Solicitors:

Crown Solicitor, Napier for Crown

Public Defence Service, Hastings for Appellant