Bonniface v Police
[2023] NZHC 3674
•13 December 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-210
[2023] NZHC 3674
BETWEEN NATHAN BONNIFACE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 December 2023 Appearances:
A J McKenzie for Appellant A M Harvey for Respondent
Judgment:
13 December 2023
JUDGMENT OF OSBORNE J
Introduction
[1] Nathan Bonniface was convicted on two charges of assault using a motor vehicle as a weapon (the assault charges)1, one charge of driving while disqualified (3rd or subsequent)2 and one charge of breach of intensive supervision conditions.3 Judge Couch sentenced Mr Bonniface to two years, two months and fourteen days’ imprisonment on the assault charges, with shorter, concurrent sentences on the other charges.4 He appeals the sentence on the assault charges.5
1 Crimes Act 1961, s 202C; maximum penalty five years’ imprisonment.
2 Land Transport Act 1998, ss 32(1)(a), 32(4); maximum penalty two years’ imprisonment.
3 Sentencing Act 2002, s 70B; maximum penalty six months’ imprisonment.
4 Police v Bonniface [2023] NZDC 22222.
5 The appellant does not appeal against the order of disqualification made on the disqualified driving charge.
BONNIFACE v NEW ZEALAND POLICE [2023] NZHC 3674 [13 December 2023]
Background
Assaults with a blunt instrument
[2] In October 2021, Mr Bonniface was at his ex-partner’s residence, where her son and his girlfriend were also present. Following an argument, he was told to leave. He was angry. He went to his car on the opposite side of the road and got into it. He turned it around and drove through a gate down into the driveway, driving at speed towards the victims on the driveway. He veered towards them. The victims flattened themselves against a wall where the driveway slightly widened out, so as to avoid being hit by Mr Bonniface’s vehicle. He stopped the vehicle just short of where they were.
[3]The assault charges related to the two victims.
Driving while disqualified (3rd or subsequent)
[4] On 9 July 2022, Mr Bonniface was apprehended, driving a vehicle, despite having been disqualified from doing so for one year and one day on 22 July 2021.
Breach of intensive supervision
[5] In December 2021, Mr Bonniface was sentenced to 12 months’ intensive supervision on charges under the Misuse of Drugs Act 1975. Mr Bonniface breached his special condition to not possess or consume illicit substances by failing the drug test in August 2022 and failing to present for drug tests in July and September 2022.
Procedural history
[6] Mr Bonniface went to trial before Judge Couch facing six charges arising from the October 2021 events, being assaults on three persons with a car, and assaults on three persons with a knife. At the close of the Police case, Mr Bonniface pleaded guilty to two of the assault charges. Police withdrew the remaining four charges.
The District Court sentence
[7] For sentencing, Judge Couch took the two assault convictions as the lead offending. He n ted the five years’ imprisonment maximum penalty. He considered the offending to be premeditated, having regard to the steps Mr Bonniface took to drive onto the property when he could have driven away. The Judge considered a starting point of 16 months’ imprisonment appropriate for the assault charges.
[8] The Judge considered five months’ imprisonment was appropriate for the driving charge — Mr Bonniface’s fifth such event.
[9] The Judge assessed two months’ imprisonment as appropriate for the supervision breach.
[10] The Judge’s starting point was therefore 23 months’ imprisonment, being cumulative pursuant to s 84 Sentencing Act 2002 (the Act) on account of the unconnected nature of the incidents.
[11]The Judge made no apparent adjustment for totality under s 85 of the Act.
[12] The Judge then assessed adjustments to the initial starting point for personal factors. He applied a 10 per cent uplift because Mr Bonniface’s offending occurred while he was on bail. The Judge applied an additional 10 per cent uplift for Mr Bonniface’s criminal history — the Judge referred to his 10 convictions for assault at various levels of seriousness, including two convictions which attracted three-strike warnings. The Judge noted also other convictions for dishonesty, drug offending, and driving.
[13] The Judge then considered a credit for guilty pleas. He allowed an overall credit of 5 per cent. He identified that the disqualified driving plea had been entered promptly whereas the supervision breach plea had been delayed for six months. His Honour made no reduction for the guilty plea on the assault charges. Mr Bonniface had put police and the witnesses to proof on those charges, and witnesses had been
cross-examined. The Judge referred to Hessell v R and implicitly the considerations that a very late plea was involved and the prosecution case was clearly established.6
[14] By a process of working backwards, one may arrive close to the Judge’s five per cent overall allowance thus:
(a)
(b)
(c)
25% of 5 months —
10% of 2 months — NIL on 16 months —
1.25 months
0.20 months 0.00
(d)
1.45 out of 23 months
1.45 months (rounded down)
= 6%
[15] The Judge imposed concurrent terms of imprisonment, with the assault charges carrying the full period of imprisonment of two years, two months and 14 days. Mr Bonniface was sentenced concurrently to five months’ imprisonment on the driving charge and two months’ imprisonment on the supervision breach charge.
Victim impact statements
[16] The victims had provided victim impact statements. The two victims were respectively frightened and panicked by Mr Bonniface’s actions, having believed he intended to drive straight into them.
Principles on appeal
[17] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 As the Court of Appeal identified in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that
6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].
7 Criminal Procedure Act 2011, ss 250(2) and 250(3).
can properly be justified by accepted sentencing principles”.8 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.9
Appellant’s submissions
[18] Mr McKenzie for Mr Bonniface accepts that each component of the initial sentence calculations (sixteen months, five months and two months) was within range.
[19] Mr McKenzie submitted there were three errors in the Judge’s subsequent steps in sentencing:
(a)a failure to consider and adjust for totality;
(b)the imposition of excessive uplifts for offending on bail and criminal history; and
(c)insufficient credit for guilty pleas.
Totality
[20] Mr McKenzie invoked the provisions of s 85 of the Act, relating to the consideration of the totality of offending.
[21] He acknowledged that the Court of Appeal has recognised that “the failure of the Judge to mention the totality principle is of no moment if the sentence imposed was not out of proportion to the gravity of the offending”.10 He submitted that the cumulative starting point of 23 months was clearly out of proportion to the cumulative offending. While accepting the sentence calculated on each of the three components was within range, they were in his submission each towards the higher end of their respective ranges. That called for a deliberate consideration of totality and an adjustment, which he submitted could have been two months, reducing the starting point to 21 months.
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
10 Kite v R [2018] NZCA 485 at [21].
[22] He submitted that the proximity of the end sentence to the two year mark (for a short sentence) makes that adjustment meaningful and one which should be made on appeal.
Uplift for offending on bail
[23] Mr McKenzie submitted that, while an uplift for offending on bail was appropriate, the uplift ought to have been five per cent rather than the 10 per cent assessed by the Judge.
[24] Mr McKenzie submitted that the aggravated culpability is lessened in this case for two reasons:
(a)neither the disqualified driving nor the supervision breach reflect serious offending on bail; and
(b)through delays in the District Court associated with COVID-19, Mr Bonniface had remained on bail for some two years before trial.
Uplift for conviction for criminal history
[25] Mr McKenzie submitted the Judge’s 10 per cent uplift for criminal history was excessive. Focusing on previous convictions with similarity to the index offending, Mr McKenzie observed:
(a)Mr Bonniface’s last disqualified driving conviction was in 2010. In any event, given that previous convictions are a prerequisite for liability, no uplift would be justified on this charge given that it would not normally attract a sentence of imprisonment;
(b)Mr Bonniface (while receiving a sentence for breaching community detention in 2014) has no previous breaches of intensive supervision; and
(c)although the Judge correctly identified the existence of previous violence convictions, the last was in 2014.
Overall uplift
[26] Mr McKenzie then invited me to consider the overall uplift of 20 per cent. He submitted it was plainly excessive. He suggested it does not stand comparison with this Court’s decision on appeal in Norman v Police where a global uplift of 15 per cent (six months) was found to be excessive and an uplift of no more than four months appropriate.11 Mr McKenzie properly drew to my attention that, notwithstanding the error in relation to the uplift, the appeal against sentence in Norman was ultimately dismissed on the basis a reduction of the two years and six months’ imprisonment sentence by two or three months would have amounted to tinkering.12
Credit for guilty pleas
[27] Mr McKenzie submitted the credit for Mr Bonniface’s guilty pleas ought to have been at least 10 per cent.
[28] He submitted a full (25 per cent) credit should have been allowed for the driving charge plea and a high credit allowed for the supervision breach charge plea. On the assault charges, he referred to the Court of Appeal decision in Aupouri v R.13 The appellant in that case pleaded guilty to a downgraded charge at the end of the Crown case, after cross-examination of the complainant. The District Court Judge had allowed a credit of 10 per cent. The Court of Appeal found a discount of “no more than 15 per cent” was available.14 Implicitly it was recognised that at least 10 per cent was called for.
Aggregated uplifts/credits
[29] Upon the basis of Mr McKenzie’s proposed adjustments (assuming a 10 per cent uplift for Mr Bonniface’s history was offset by a 10 per cent credit for his guilty pleas), the starting point of 21 months’ imprisonment would become the (cumulative) end sentence.
11 Norman v Police [2022] NZHC 808 at [42]–[44].
12 At [53].
13 Aupouri v R [2019] NZCA 216.
14 At [16].
Police submissions
[30] For the Police, Mr Harvey submitted the starting point of 23 months was not out of proportion to the gravity of the overall offending and that any adjustment would amount to tinkering. He submitted the uplifts were stern but within range — the global discount of five per cent for guilty pleas was appropriate and no more could properly be given in the circumstances.
[31] Mr Harvey submitted that, stepping back and assessing the end sentence, such a sentence was appropriate and necessary to respond to the circumstances of the reoffending, the defendant’s conviction and bail history, and his repeated breach of Court orders and sentences. In his submission, the sentence was not manifestly excessive.
Discussion
Totality
[32] The consideration of the totality of offending, required under s 85 of the Act, is to be considered before personal mitigating or aggravating factors are taken into account.15 It was common ground between counsel, and I agree, that the three individual components of starting sentence were within range. That said, I do not accept Mr McKenzie’s submission that any of the components should be considered at the top of the range. In particular, the assault charges, although not resulting in physical harm, involved orchestrated conduct intended at the very least to terrify the victims. A starting point of 16 months, in relation to a maximum penalty of five years’ imprisonment, can be viewed as in the middle of the available range. It represents the dominant component in the overall starting point.
[33] Turning to the totality principle, it requires (as expressed in s 85(2) of the Act) that the cumulative sentences “must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending”. This means the sentencing Judge, after considering the component sentences individually, must stand back and
15 Polaapau v R [2020] NZCA 227 at [44].
look in a broad way at the totality of the criminal behaviour.16 In R v Bradley the Court of Appeal noted that the “standing back” stage was not mentioned in the reasons given by the sentencing Judge in that case, and the tenor of the reasons made it at least doubtful whether the Judge accepted the importance of the totality principle.17 Here, as emphasised by Mr McKenzie, we do not have any indication of consideration of the totality principle in the Judge’s sentencing notes.
[34] In this case, there was no reason in principle to not apply the totality principle once the individual components had been assessed. None of the component sentences in themselves was reduced to a level that suggested totality had in some way been taken into account on the way through. I am satisfied that, had totality been specifically addressed, some reduction of the starting point would appropriately have been allowed.
[35] I accept that the two-month allowance suggested by Mr McKenzie (close to 10 per cent) would have been appropriate.
Impact on sentencing outcome
[36] Then, in looking ahead to the end sentence, the adjustment of the starting point for totality has a significant impact on the available sentences even were the Judge’s adjustments before personal aggravating and mitigating factors (a net 15 per cent increase) to be applied. If the Judge’s 15 per cent adjustment had been applied to a starting point of 21 months, it would have resulted in an end sentence of 24 months’ imprisonment. Mr Bonniface would then have been eligible to have substitution of a sentence of home detention considered.
Personal aggravating factors
[37] The Judge’s uplift of 10 per cent for offending on bail appropriately reflected the fact that there were three distinct sets of offending while on bail. I accept as submitted by Mr Harvey, that the 10 per cent uplift represented an appropriately heightened response on this account — stern but within range.
16 R v Bradley [1979] 2 NZLR 262 (CA) at 263.
17 At 263–264.
[38] I also consider the 10 per cent uplift on account of Mr Bonniface’s criminal record was appropriate — the most relevant feature of his history lies in his 17 previous convictions for violence. While Mr McKenzie correctly noted the last conviction was in 2014, some seven years before the index offending, there is a distinct connection in seriousness between that index offending and two previous convictions that incurred warnings under the three strikes legislation. The earlier offences had an enduring relevance to the sentence called for.
[39] There is no demonstrated error in the Judge’s refusal to provide a discount in relation to Mr Bonniface’s eventual guilty pleas to the assault charges. The police charges were unchanged from start to finish. The circumstances are therefore distinctly different to those in Aupouri where a guilty plea after the close of the Crown case was promptly made in response to a freshly reduced charge.18 In this case, the Judge’s refusal of any discount is in line with the principles established in Hessell.19
[40] Once it is recognised that there needed not be any discount in relation to the guilty pleas on the assault charges, the five per cent discount globally across the disqualified driving and the supervision breach charges was (when regard is had to the calculation set out at [14] above) plainly appropriate.
Appropriate period of imprisonment
[41] Accordingly, I consider a sentence of two years’ imprisonment should be imposed.
Home detention
[42] The commuting of a short-term sentence of imprisonment to home detention involves the exercise of a discretion in a way that gives effect to the purposes and principles of sentencing as set out in ss 7 and 8 of the Act.20
18 Aupouri v R, above n 13, at [16].
19 Hessell v R, above n 6.
20 Manikpersadh v R [2011] NZCA 452 at [14]–[16]; Osman v R [2010] NZCA 199 at [20].
[43] Here, the Judge did not come to address home detention as he was not imposing a short-term sentence of imprisonment.
[44] For the purposes of sentencing, however, a report had been obtained from the Department of Corrections. The report, dated 3 October 2023, identified a proposed address (that of Mr Bonniface’s sister) as a suitable address at which Mr Bonniface could serve an electronically-monitored sentence. The Department, on inquiries made of the police and Oranga Tamariki recommended a sentence of home detention with special conditions.
[45]Mr McKenzie informed me that the home detention address remains available.
[46] I accept Mr McKenzie’s submission that this is not a case where the principles of sentencing require that the defendant serve a period of imprisonment rather than move to a community-based sentence. Given the relatively lengthy period since Mr Bonniface was sentenced to a period of imprisonment (for offending in 2013/2014) a significant period of home detention will meaningfully address the sentencing principles. I also recognise that for his offending Mr Bonniface has already now served some prison time.
[47] Since his sentencing on 5 October 2023, Mr Bonniface has served slightly more than two months of his sentence of imprisonment. In these circumstances, it is appropriate that Mr Bonniface should be sentenced to a period of 10 months’ home detention rather than the 12 months to which a sentence of two years’ imprisonment would normally be converted.21
Orders
[48]I order:
(a)The concurrent sentences of two years, two months and 14 days’ imprisonment on each of the two charges of assault with a weapon are quashed with effect from today;
21 Taking the one for one approach adopted in Mason v Police [2022] NZHC 1845 at [35]–[36].
(b)The sentence of four months’ imprisonment on the charge of driving while disqualified is quashed with effect from today;
(c)The sentence of two months’ imprisonment on the charge of breach of intensive supervision is quashed with effect from today.
(d)During the period of home detention, not to possess or consume drugs or alcohol other than that medication which may be lawfully prescribed and to submit to drug testing if and when directed to do so by a probation officer.
(e)To attend and complete an appropriate non-violence programme in accordance with the directions of a probation officer to the satisfaction of a probation officer and the programme provider.
[49] In substitution for the quashed sentences, the appellant is sentenced to home detention for 10 months commencing today, to be served at the home detention address identified in the Department of Corrections’ report dated 3 October 2023. The appellant will be subject to the standard conditions set out in s 80C(2) of the Act and, in addition, the following special conditions:
(a)Upon his release from custody, to travel directly to the home detention address to be fitted with his electronically-monitored bracelet.
(b)To remain at the address 24 hours a day, seven days a week unless an approved absence is granted by the Corrections GM bail team.
(c)To attend any counselling, Government, legal, medical, employment, banking or grocery appointments as approved by the Corrections EM bail team.
[50] For the avoidance of doubt, the order disqualifying the appellant from holding or obtaining a driver’s licence stands unaltered.
Osborne J
Solicitors:
Crown Solicitor, Christchurch for Respondent Copy to: A J McKenzie
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