Carroll v Police
[2023] NZHC 3293
•21 November 2023
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2023-441-11
[2023] NZHC 3293
BETWEEN JERMAHL MATHEW CARROLL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 September 2023 Appearances:
E J Foster for the Appellant
M J R Blaschke for the Respondent
Judgment:
21 November 2023
JUDGMENT OF PALMER J
Solicitors
E J Foster, Barrister, Hastings Elvidge & Partners, Napier
CARROLL v POLICE [2023] NZHC 3293 [21 November 2023]
What happened?
[1]Mr Jermhal Carroll, aged 37, pleaded guilty to:
(a)one offence of assault with a weapon and one offence of assault on a person in a family relationship, which carry maximum penalties of five years and two years’ imprisonment, respectively;1
(b)nine offences of breaching a protection order, two by family violence and seven by unauthorised contact, the maximum penalty for each of which is three years’ imprisonment;2 and
(c)one offence of resisting arrest and one offence of breach of release conditions, which carry maximum penalties of three months and one year’s imprisonment respectively.3
[2] These offences all arose out of interactions between Mr Carroll and his then partner, with whom he had been in a relationship for many years and has a son:
(a)Around 6 am on 9 August 2022, Mr Carroll visited, woke and tried to kiss the complainant who was in bed with their son. She told him she did not want to be in a relationship anymore. He punched her twice, hard, in the back of the head and stabbed her on the top of her head with his car keys, causing her head to bleed.
(b)Around 9.40 am the same day, Mr Caroll returned and blocked the complainant’s car in the driveway with his, while she was trying to leave the address. He punched her doors and windows and tried to pull the windows down to gain access. He fled when she phoned 111 and drove away. He phoned the complainant constantly, making comments such as he was “going to chuck her in the boot, rub shit all over her, and take her out, with him”.
1 Crimes Act 1961, ss 194A and 202C.
2 Family Violence Act 2018, ss 90(a) and 112.
3 Summary Offences Act, 1981, s 23; and Parole Act 2002, s 71.
(c)On 11 August 2022, Mr Carroll sent an abusive text to the victim around 2 am, came to the address, and tried to open a window to gain entry. He abused and threatened her. She activated a family safety alarm and he fled. He continued to text and phone her throughout the day, including asking her to come outside for sex.
(d)On the afternoon of 13 August 2022, the complainant arranged for Mr Carroll to come over to discuss her being pregnant to him again. He failed to meet her at the agreed time and she told him not to come to her house. At 3 am the following morning, he broke into her house while she was asleep. She activated the family safety alarm and he fled.
(e)On the morning of 14 August 2022, the complainant told Mr Carroll he was not welcome at her house. But he returned to the house again, uninvited. The complainant allowed him to take their son out for two hours.
(f)Around 7.30 am on the morning of 15 August 2022, Mr Carroll showed up again trying to speak with the complainant. She said she did not want him there. He took the family safety alarm, telling her he was taking it so she could not activate it.
(g)Around 2.50 am on 18 August 2022, the Police located and arrested Mr Carroll who attempted to flee and had to be subdued.
[3] At the time of this offending, there was a protection order against Mr Carroll, prohibiting him from harming, engaging in non-consensual contact, or encouraging others to harm or contact the complainant.
[4] Overall, Mr Carroll has 15 previous convictions for assault, including for male against female or assault on a person in family relationship. Three were for causing injury or intending to cause injury. He has 14 previous convictions for breach of a protection order since 2017. There was also a conviction for burglary in a family violence context. In particular:
(a)On 22 April 2020, Mr Carroll was sentenced for injuring with intent to injure and common assault against the same victim as here, breaching post-release conditions. He was sentenced to five months’ imprisonment.
(b)On 4 May 2021, Mr Carroll was sentenced to imprisonment for three family violence offences against the same victim as here: breach of a protection order, wilful damage, and breaching release conditions.
(c)On 18 May 2022, Mr Carroll was sentenced by Judge G Matenga, in the Hastings District Court, for three offences of breaching a protection order, assault on a person in a family relationship, and a breach of release conditions.4 These offences also related to the complainant here and involved similar abusive, threatening, and violent behaviour, including punching the complainant in the face.
[5] In relation to the May 2022 sentence, the Judge accepted Mr Carroll’s statement of remorse, for which he allowed a discount of five per cent.5 The Judge had regard to the same s 27 report that was considered in the sentencing for the offending here. He accepted there were a number of factors in Mr Carroll’s background that may be linked to his offending. He noted Mr Carroll had observed considerable violence in childhood, had endured sexual abuse, and intergenerational incarceration.6 He told Mr Carroll he needed to take the opportunity to sort out the issues.7 The Judge allowed a discount of 15 per cent for Mr Carroll’s personal issues.8 The end sentence was 13 months’ imprisonment with standard and special release conditions for six months post-detention.9 He was released from prison on 15 June 2022, less than two months before he committed the offending at issue here.
4 New Zealand Police v Carroll [2022] NZDC 9169.
5 At [10] and [21].
6 At [16].
7 At [17].
8 At [21].
9 At [23]–[24].
[6] Mr Carroll pleaded guilty on 19 January 2023. On 11 May 2023, Judge R J Collins sentenced Mr Carroll in the District Court at Hastings to three years and four months’ imprisonment:10
(a)The Judge summarised the victim impact statement and the Corrections pre-sentence report, which disclosed a significant amount of victim-blaming, and a high risk of re-offending.11
(b)The Judge acknowledged the report prepared by Dr Jarrod Gilbert under s 27 of the Sentencing Act 2002. It reviewed Mr Carroll’s history of exposure to alcohol abuse and being subject to violence. The Judge was not so sure that his background contributed causatively to the offending.12 But he noted that, on 18 May 2022, Mr Carroll had received a material discount for the same report.13 He did not allow any further discount due to Mr Carroll’s repeat offending against the complainant, which was sustained and pre-meditated.14 He emphasised the importance of protecting the complainant.15
(c)The Judge set a starting point of two and a half years’ imprisonment for the offending on 9 August 2022: assault with a weapon; assault on a person in a family relationship; and three breaches of the protection order.16 He uplifted that by 18 months’ imprisonment for the six subsequent breaches of the protection order.17 He did not make any uplift for previous convictions as he considered that was built into the gravity of the offending.18
(d)The Judge gave a 15 per cent discount for an early guilty plea, taking into account the lack of any defence to the breaches of the protection
10 New Zealand Police v Carroll [2023] NZDC 9199.
11 At [22].
12 At [26].
13 At [24] and [27].
14 At [28].
15 At [28].
16 At [29].
17 At [30].
18 At [31].
order evidenced by texts.19 He did not consider Mr Carroll to be genuinely remorseful and gave no further discounts.20
Appeal
[7] Mr Carroll appeals the sentence. Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if satisfied that, for any reason, there has been a material error in the sentence imposed and a different sentence should be imposed. Otherwise, I am required to dismiss the appeal. The focus is on whether the end sentence is within the available range.21 The Court will only intervene and substitute its own views on appeal if the sentence is “manifestly excessive”.22
[8] The notice of appeal was filed one day late but this did not prejudice the Police who responsibly take no issue with it. I grant leave for the appeal to be brought out of time, in the interests of justice.
Issue 1: Starting point and uplift
Submissions
[9] Mr Forster, for Mr Carroll, submits the Judge erred in adopting a starting point for the 9 August 2022 offending and adding a cumulative starting point for the other breaches of the protection order. Taking into account the totality of offending and comparable cases, the overall starting point should have been three years’ imprisonment.
[10] Mr Blaschke, for the Police, submits the sentencing for the offending after 9 August 2022 was not added cumulatively. Rather, there was an uplift and an adjustment for totality. Mr Carroll accepted a three-year combined starting point with an uplift of nine months in the District Court, so four years is not manifestly excessive. The seriousness of the further breaches of the protection orders amply justifies an 18-month uplift.
19 At [32].
20 At [33].
21 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27], [33], and [35].
22 Ripia v R [2011] NZCA 101 at [15].
The starting point
[11] As Mr Forster submits, the Court of Appeal has held that, in cases such as these, concerning episodes of family violence, the starting point should be set having regard to the case in the round and with regard to all aggravating and mitigating factors.23
[12] Here, I consider the aggravating factors included the conventional factors of: attack to the head; occurrence of much of the offending at night, when the complainant was likely to be asleep and more vulnerable; and offending while subject to post-release conditions. In addition, the following factors also aggravate family violence offending such as this:
(a)The offending, involving violence and intimidation, occurred in the complainant’s own home, where, if anywhere, she should have been able to expect to feel safe.24
(b)Most of the offending occurred in the presence of their child. There are immediate and long-term effects on children who witness violence in their homes,25 and the complainant’s victim impact statement outlines how this violence has impacted her children.
(c)The multiple incidents of family harm, in the context of a violent and abusive relationship, creates a cumulative effect that often manifests in a complainant living in a constant state of fear or intimidation.26 That is clearly so here. It involves psychological injuries.
(d)The manifestations of an abuser’s exercise of power and control over an intimate partner victim, such as her isolation and deprivation from
23 See Johnstone v R [2013] NZCA at [58]; Wati v R [2015] NZHC 2064 at [19]; and Still v Police
[2019] NZHC 2730 at [44].
24 Solicitor-General v Hutchinson [2018] NZCA 162, [2018] 3 NZLR 420.
25 Still v Police, above n 23, at [52] citing Mohib v Police [2017] NZHC 123 at [59]–[60].
26 At [53].
assistance, exacerbate her fear.27 Mr Carroll’s theft of the complainant’s family harm alarm is a good example.
[13] The aggravating factors take the 9 August 2022 offending well into band 3 of R v Nuku, with a starting point of between two to five years’ imprisonment.28 I consider there was no error in the Judge adopting a starting point of two and a half years’ imprisonment for the 9 August 2022 offending. Mr Forster concedes that. Given the aggravating factors, the starting point for the 9 August 2022 offending alone could have been greater.
Uplift
[14] Mr Forster portrays the additional 18 months for the other breaches of the protection order as an additional starting point which should not have been cumulative on the starting point for the 9 August 2022 offending. However, the Judge was explicit in formulating the 18 months as an uplift to the starting point for the 9 August 2022 offending, not another starting point.29 While a single starting point could have been set in relation to all the offending, given its proximity in time and nature, it is not an error to set a starting point and apply an uplift, as the Judge did, if the resulting global starting point is within the range available as a starting point for all of the offending.
[15]In relation to protection orders, in the High Court decision of
Morris-Stewart v Police, Wylie J stated:30
[15] The Court of Appeal has stated that the Courts should uphold the integrity of protection orders and respond sternly to those who flout their force and effect. Orders are intended to ensure that the recipient of the protection order is secure and inviolate. Repeated breaches of protection orders call for a condign sentencing response. Where there has been repeat offending over a brief period of time, a short term of imprisonment is the proper response.
[16] The breaches of protection orders constituted serious offending, incommensurate with an uplift of only six months. As Mr Blashke submits, the threat on 11 August 2022 was particularly serious and, in isolation, could have attracted a
27 At [54].
28 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].
29 New Zealand Police v Carroll, above n 10, at [30].
30 Morris-Stewart v Police [2016] NZHC 1030 citing R v Cartwright CA175/02, 28 August 2002 at [20]–[21].
starting point of 12 months’ imprisonment.31 The breaches involving attempting to enter the complainant’s house at night would also have merited significant starting points on their own.
[17] I consider there is no error in the amount of the 18-month uplift for the additional breaches of the protection order, resulting in a global starting point of four years. That was within the range available to the Judge.
[18] Indeed, a further uplift could have been available for Mr Carroll’s previous related criminal history, including 27 convictions relating to family harm since 2004, with 22 of them within the last six years. The most recent offending, before this offending, occurred in 2021 against the same complainant. That consisted of three breaches of a protection order and assault on a person in a family relationship. And a further uplift could have been imposed for being on release conditions at the time of this offending.
Issue 2: Discount for personal circumstances
Submissions
[19] Mr Forster submits the Judge erred in not awarding a discount for the factors outlined in the s 27 report. Mr Carroll’s background of deprivation has made him less adaptive and less mature with a lack of emotional intelligence and an inability to regulate his behaviour, which is a causative link to this offending. He had less personal agency; he was programmed to perform the offending. The fact-specific question is: what has changed since the last offending to give Mr Carroll greater personal agency in his offending this time? That might include offending for gain, premeditation, or refusing to take an opportunity to rehabilitate, but those are not present here. A discount of between 10 and 25 per cent is warranted.
[20] Mr Blascke submits the Judge was correct to refuse a discount for the factors in the s 27 report based on an intensely fact-specific assessment of this high-risk offender being sentenced so soon after the previous offending in May 2022. There
31 See Crean v New Zealand Police [2015] NZHC 3203; and Cooke v New Zealand Police [2014] NZHC 3224.
will be a point at which background factors no longer assist in explaining offending and where other sentencing goals become more important, depending on the facts.
Was there an error in not awarding a discount?
[21] In Berkland v R, the Supreme Court explained why information about offender background is important in sentencing:32
(a)The statutory purposes, principles, and factors for sentencing, require judges to dispense individualised justice.33 So, it is important a sentencing judge understands the offender’s background.
(b)Section 8(e) of the Sentencing Act 2002 requires that “similar offenders committing similar offences in similar circumstances” should receive similar treatment. Proper consideration of background mitigates the risk of sentencing inconsistency.34
(c)Punishment is premised on offender agency, which may be affected by their background, so culpability must be assessed by reference to the offender.35 The obvious examples are offender age and mental wellbeing or capacity.
(d)Background will also be important in deciding which, if any, of the outcome-focused instrumental purposes of sentencing are activated, including deterrence, denunciation, community protection and offender rehabilitation and reintegration.36
32 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [89].
33 See, for example, the sentencing purposes in the Sentencing Act 2002, s 7(1)(a), (b), (e), (f), (g) and (h); the sentencing principles in s 8(a), (c), (d), (e), (h) and (i); and the aggravating and mitigating factors in s 9(1)(h), (1)(j), (2)(a), (2)(e), (2)(f) and (2)(g).
34 At [90].
35 At [91] citing Professor Nathan Berg The Deterrent Effect of Sentencing on Illicit Drug Suppliers?: An Overview of Rational Choice and Behavioural Economics Approaches.
36 At [92].
[22] The Court said the relevance of an offender’s background does not in any way reduce the importance of acknowledging the harm caused by an offender, in particular the harm to victims, and:37
There are other sentencing purposes and principles such as deterrence, denunciation and community protection. Where offending is particularly serious these principles will usually be more powerfully engaged. Logically, there will come a point where background, even if it has contributed to the offending, can have no impact. But that will be a matter for careful consideration on the facts of the offence and the offender.
[23]The Court also said the following in a footnote at the end of that passage:38
In addition to the potential effect of seriousness, a question also arises as to the impact of background in sentencing for repetitive offending. While this is not a matter before us we acknowledge that it may raise similar issues. Again, the focus must be on the facts of the offence and the offender. On the one hand criminogenic background factors tend to be reflected in repeat offending. Sentencing judges generally understand this and the need for patience. But we accept that at some point other sentencing principles however will take over.
[24] The Court held that background factors must have a causative contribution to the offending but noted that there will be a point at which background factors can no longer assist in explaining offending and may be displaced where the offending is particularly serious.39
[25] All this reflects the complexity of the factors that affect human behaviour. We are all simultaneously products of our social contexts and have individual agency to varying extents. Having information about the personal circumstances of an offender’s background assists sentencing courts to calibrate the sentence to the various objectives of sentencing for that particular offender. For example, a discount to a sentence because of personal circumstances could reflect: the reduced agency of an offender due to their experiences; that resources applied to a sentence in the interests of specific deterrence would be wasted because deterrence would not be effective for that person; or because they have already changed their behaviour through rehabilitation.
37 At [94].
38 See footnote 105.
39 At [109]–[111].
[26] Here, there is a clear causal link between Mr Carroll’s childhood experience of violence, physical and sexual abuse, parental incarceration, and his offending. Accordingly, he received a 15 per cent discount for his personal circumstances for four family violence offences against the same complainant in May 2022. This reflected his reduced agency — his lessened ability to rationally choose optimal and pro-social behaviour. It also reflected what the Judge then saw as demonstrated remorse, which offers the prospect of rehabilitation.
[27] But this offending was not purely instinctive. Mr Carroll had to make an effort to turn up at the complainant’s house. Taking the family safety alarm demonstrated an intention to offend again in the future. And Mr Carroll committed this offending just three months after receiving that discount which had resulted in a sentence of imprisonment of 13 months, and just under two months after his release from prison for the previous offending. This is the third sentence Mr Carroll has received for offending against the same complainant since 2021. Understandably, she says she does not want him living in Hawke’s Bay when he is released.
[28] All that casts some doubt on whether Mr Carroll’s agency continues to be reduced. It also suggests the sentencing purposes of denunciation, community protection, and protection of the victim in particular, should be relatively heightened now. And Mr Carroll’s current opportunities for rehabilitation appear remote.
[29] If some level of discount was justified for Mr Carroll’s reduced agency because of his background, it should have been at a rate that was lesser than his previous discount, to reflect the heightened need to denounce his conduct, and to protect the community, and to recognise the lower likelihood of rehabilitation. A discount in the range of zero to eight per cent may have been appropriate.
[30] However, the Court will only intervene and substitute its own views on appeal if the sentence imposed is manifestly excessive. This focus is on whether the end sentence is within the available range. Here, given the aggravating factors, I have found that the starting point could have been greater, a further uplift could have been available for Mr Carroll’s previous related criminal history, and another uplift could have been given for being on post-release conditions at the time of the offending.
Given those factors, even if a full eight per cent discount should have been made for personal circumstances, the sentence imposed was within the range available to the Judge. The sentence imposed was not manifestly excessive.
Result
[31]I dismiss the appeal.
Palmer J
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