Boyes v Police
[2021] NZHC 2818
•18 October 2021
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2021-412-000034
[2021] NZHC 2818
BETWEEN JORDAN REMUS BOYES
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 October 2021 Appearances:
S A Saunderson-Warner for the Appellant R D Smith for the Respondent
Judgment:
18 October 2021
ORAL JUDGMENT OF GENDALL J
Introduction
[1] The appellant, Jordan Boyes, appeals against a sentence of two years and seven months’ imprisonment imposed by Judge Robinson in the District Court at Dunedin. He had pleaded guilty to charges of assault on a person in a family relationship, assault with intent to injure, strangulation and wilful damage. He appeals on the ground the sentence was manifestly excessive
Background
[2] Turning now to the background facts in this matter, the charges stem from five separate incidents of domestic violence. On 21 September 2020 Mr Boyes was the driver of a vehicle and the victim, his partner, was a passenger. An argument broke out and Mr Boyes pulled the vehicle over to the kerb. He reached over, grabbed the
BOYES v NEW ZEALAND POLICE [2021] NZHC 2818 [18 October 2021]
victim by the throat with one hand while punching her three or four times in the side of the head with the other hand. The victim suffered bruising to her face and head, including having an imprint on the side of her head from the sunglasses that she had been wearing.
[3] On 7 October 2020 Mr Boyes and the victim were at a shearing event in Waikouaiti. Mr Boyes was not drinking as he was a participant in the competition. The victim however was heavily intoxicated. At about 11 pm they decided to leave, and the victim got into the back of the van. Mr Boyes got into the front seat of the van, opened the rear sliding door and pulled the victim forcibly from the van, slamming her on the ground. He then kicked her heavily in the rib area about three times. She suffered bruising on her side that was visible for some time.
[4] Two weeks later in the evening of 21 October 2020 Mr Boyes and the victim argued. Mr Boyes grabbed her by the hair and threw her around in a motion that is described as rag-dolling. When she fell to the floor Mr Boyes kneed her three to four times in the ribs. She suffered bruising to her ribs and a bald patch on her scalp where her hair was pulled out.
[5] Nearly two months later, on 16 December 2020, Mr Boyes grabbed the victim by the legs, wrapped his arms around them and applied maximum pressure. The summary of facts notes that he was attempting to break her legs. She walked with a pronounced limp for several days afterwards.
[6] Then on 24 December 2020 there was a Christmas function hosted at Mr Boyes’ address with friends and children. Mr Boyes kicked a box of beer and threw the remaining unbroken bottles at the feet of the victim and friends showering them with glass and beer. The gathering came to an abrupt halt and the guests began to depart. The victim asked a friend to take her daughter away for her safety.
[7] The victim sought refuge in her bedroom, but Mr Boyes followed. The victim hit Mr Boyes, he flew into a range, he punched a television and then threw it at the victim hitting her in the back. He punched and kicked the victim repeatedly about the head and body. She fell to the floor, momentarily causing her to lose consciousness
and lose control of her bladder. Mr Boyes then headbutted the wall knocking himself unconscious.
[8] The victim attempted to hide in the bathroom. As she left the room however she accidentally knocked Mr Boyes in the head with her foot rousing him. He went into the bathroom and continued the assault. He stomped on her head, face and body, pulling her arms away so that she could not defend herself. While she was on the floor Mr Boyes placed his hands around her neck, strangling her until she lost consciousness.
[9] The assault only stopped when Mr Boyes heard sirens. When he realised they were not coming to his address he made her clean up the living area and bedroom and cook him dinner. After this she escaped the house, ran down the road and flagged down a passing car. She was driven by a member of the public to a friend who took her to accident and emergency for treatment of her injuries.
[10] The victim suffered extensive injuries as a result of this last assault including deep bruising to her vaginal and anus area, black and swollen eyes, extensive bruising, a shoe imprint bruise on her thigh, teeth out of alignment requiring dental treatment, and a burst blood vessel in her eye consistent with strangulation. A total of 50 bruises were catalogued.
District Court decision
[11] Turning now to the District Court decision, on 15 June 2021 Judge Robinson provided Mr Boyes with a sentence indication of no more than three years and four months’ imprisonment. At sentencing Judge Robinson said the starting point for the offending at 52 months’ imprisonment on a totality basis. He allowed a 20 per cent discount for guilty pleas and a 10 per cent discount for the fact that Mr Boyes was a first-time offender. In respect of the matters detailed in the psychological report before him the Judge applied a discount of 10 per cent. This resulted in a net discount of 40 per cent and an end sentence of two years and seven months’ imprisonment.
Principles on appeal
[12] Turning now to the principles on this appeal, appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 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 that there has been an error in the imposition of the sentence and that a different sentence should be imposed. As the Court of Appeal mentioned in Tutakangahau, quoting the lower Court’s decision, “a Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.”1 It is only appropriate for this Court to intervene and substitute its own views, if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles, and I refer to the Court of Appeal decision in Ripia.2
Submissions
[13] Turning now to the appellant’s submissions before me, Mr Boyes it seems does not challenge the starting point for the offending. The central tenant of his appeal is that a greater discount than that allowed should have been given for the matters contained in the psychological report and for his mental issues. This greater discount is suggested at 20 per cent, meaning a total overall discount for all factors of 50 per cent should have been allowed rather than the total 40 per cent allowed by Judge Robinson.
[14] Before me Ms Saunderson-Warner referred to the decision in Agar v R where the Court of Appeal allowed a discount of 20 per cent to recognise the appellant’s personal background, mental health issues and efforts towards drug rehabilitation.3 On this Ms Saunderson-Warner did acknowledge Mr Boyes has not made direct efforts towards rehabilitation, however she maintained he has had limited rehabilitative resources available to him while he has been a remand prisoner. Ms Saunderson-Warner notes that Mr Boyes has expressed a willingness to address his alcohol consumption and the reasons for that issue, and has been referred to a
1 Tutakangahau v R [2014] NZCA 279 at [36].
2 Ripia v R [2011] NZCA 101 at [15].
3 Agar v R [2021] NZCA 350 at [42].
relevant programme. In Ms Saunderson-Warner’s submission once an additional credit of 10 per cent is allowed the final sentence should be one of 26 months’ imprisonment.
[15] Turning now to the submissions advanced before me for the respondent, the Crown opposes this appeal. Mr Smith for the respondent submits the starting point appears to be a mid-range starting point for this type of offending and I agree. Mr Smith contends Mr Boyes’ efforts towards rehabilitation do not approach the significant efforts towards drug rehabilitation made by the appellant in Agar.4 Rather here the Crown says what is expressed is little more than a willingness to undertake these. The dearth of programmes available to remand prisoners clearly is not the fault of Mr Boyes, however. In Mr Smith’s submission the Court nevertheless should be cautious in allowing credit for mere expressions of interest in rehabilitation and a concern Judge Robinson himself found with some unease in his decision that Mr Boyes had attempted to minimise his offending here and to suggest the charges against him were exaggerated.
[16] The respondent’s position in this case is that the appropriate reduction for Mr Boyes’ background and mental health issues is in the range of 10 to 15 per cent. He is already in receipt of a 40 per cent overall reduction in sentence and in Mr Smith’s submission to allow a total reduction of 50 per cent would risk undermining the integrity of the proper sentence in this case.
Analysis
[17] Turning now to my analysis in this matter, appropriately Mr Boyes does not challenge the starting point adopted. Having considered the totality of the offending I find that starting point of 52 months’ imprisonment was within range. I agree with the District Court Judge that the charge of strangulation is the lead offence here. That offending occurred in a domestic context, the victim lost consciousness, there were significant injuries as a result of the ongoing assault and the violence was prolonged, being at the later stage of the overall offending.
4 Agar, above n 3.
[18] Having considered comparable cases the starting point of three years and four months’ imprisonment, that is 40 months, was appropriate and within range. The uplift of 12 months’ imprisonment for the remainder of the offending cannot be impugned.
[19] Before the Court is a 20-page report of clinical psychologist Martin Sellbom. The report is comprehensive. It covers Mr Boyes’ background, his family history and mental health issues. Mr Boyes’ ethnic origin is Romani. He was born in Romania and he and his twin brother were adopted at around six months’ old. Prior to his adoption and relocation to New Zealand he spent several months in hospital being treated for malnutrition, a hernia, pneumonia and a general failure to thrive.
[20] Mr Boyes reported that he struggled with identity while growing up, knowing he looked different from his family members and other children at school. His adoptive family had strong Christian values. Mr Boyes said that at the age of seven he was sexually abused by a Sunday school teacher. He did not disclose this offending to his family and only understood the implications of this abuse at around the age of
12. As a child Mr Boyes was treated for attention deficit hyperactive disorder (ADHD) because he could not focus and was restless. He was prescribed Ritalin until about 15 years old. Mr Boyes reports he has a back injury which appears to have caused him significant pain. In August 2020 he presented to his GP with low mood and suicidal thoughts. He reported not sleeping well due to pain.
[21] Mr Sellbom records that Mr Boyes admitted to losing control in situations of high stress and this appears to be exacerbated by his periodically low mental wellbeing and alcohol use. Mr Boyes is recorded as having started drinking alcohol when he was aged 13. Leading up to the offending he reported smoking marijuana too, about once per week. Around four years ago Mr Boyes reconnected with his biological mother and other relatives. His biological mother is reported to have been very ill since mid-2020 which he says caused him significant and continuous stress.
[22] Mr Sellbom assessed Mr Boyes for post-traumatic stress disorder (PTSD), concluding the interview results were consistent with a positive diagnosis of PTSD stemming from his sexual abuse trauma. Mr Sellbom concluded:
Mr Boyes’ relationship dysfunctions, which appear to be at the core of his offending behaviours, are likely affected by his emotional regulation difficulties and insecure attachment coupled with an impaired capacity for behavioural control.
[23] Mr Sellbom went on to state “Mr Boyes exhibits significant mental health problems with emotional, interpersonal and behavioural manifestations”. However, he added he wanted “to make clear that Mr Boyes’ mental health problems and alcohol use disorder are not cause or mechanisms of offending behaviour. From a psychological point of view he is responsible for his conduct.” He concluded that the problems Mr Boyes presented with had a “contributory impact primarily as they rendered Mr Boyes less able to control his behaviours”.
[24] Ms Saunderson-Warner, I have noted, challenges the discount awarded here for background and mental health issues. She submits it should have been 20 per cent. In support of that submission, as I note she relies on the recent Court of Appeal decision in Agar.5 There the appellant suffered from severe depression and anxiety and he had been diagnosed with PTSD and ADHD for which he took daily medication. He had been sexually abused at age 14 years, his formative years were marred by instability, neglect and rejection.
[25] The Court found in Agar there was a nexus between the appellant’s mental health and the offending that warranted a discount. The appellant had taken significant steps towards his rehabilitation there and had been sober for two years since the time of the offending. Overall a discount of 20 per cent was applied for these factors.
[26] In my view to some extent that case can be distinguished here. This is largely on the basis the appellant in Agar had taken significant steps towards his rehabilitation.6 I accept Mr Boyes has shown a willingness to engage in rehabilitation, however there is a material difference between a willingness and having taken significant steps towards rehabilitation.
5 Agar, above n 3.
6 Agar, above n 3.
[27] A discount may be applied to reflect an offender’s mental illness where it is causative of or contributes to the offending “as it moderates culpability and renders less appropriate or more subjectively punitive, a sentence of imprisonment”.7
[28] Having considered the matters raised in Mr Sellbom’s report and his comments there, in my view Mr Boyes’ background and mental health struggles have contributed to his offending to an extent. With this in mind I would have applied an increased discount for these factors, but only to the extent of a total 15 per cent.
[29] Perhaps a somewhat unusual feature in this case, turning to other mitigating factors, is the fact that Mr Boyes only has one prior conviction, being for a driving offence. I consider it was appropriate in all the circumstances here that the Judge applied the discounts he did of 10 per cent for Mr Boyes’ good character.
[30] The discount of 20 per cent for guilty pleas also in my view cannot be impugned. Mr Boyes pleaded guilty some six months after the charges were laid.
[31] In my assessment the overall discount for all mitigating features and the guilty plea therefore is one of 45 per cent. This is five per cent or some two and a half months’ imprisonment less than that reached by the District Court Judge. It follows in my view that the end sentence here could not be seen as being manifestly excessive and to amend it on appeal would amount to tinkering.
Conclusion
[32]For all the reasons I have outlined above this appeal is dismissed.
...................................................
Gendall J
Solicitors:
RPB Law, Dunedin
Barrister:
S A Saunderson-Warner, Dunedin
7 Agar, above n 3 at [20].
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