Cash v Police
[2016] NZHC 2748
•16 November 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-334 [2016] NZHC 2748
BETWEEN TEMANA CASH
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 November 2016 Appearances:
V Pomeroy for Appellant
A McConachy for CrownJudgment:
16 November 2016
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 16 November 2016 at 4.15 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Cash v New Zealand Police [2016] NZHC 2748 [16 November 2016]
Summary
[1] Temana Cash pleaded guilty to one charge of assault, one charge of wilful damage and two charges of behaving threateningly. The victim was his partner, who was pregnant with his child. Mr Cash appeared in the District Court at Waitakere on
5 October 2016 and was sentenced by Judge K Glubb to four months’ home detention and 80 hours’ community work.1 He appeals on the basis that the sentence was manifestly excessive.
Background
[2] For approximately three years, Mr Cash and the victim have been in what, by all accounts, appears to have been a volatile relationship; they have known each other for longer than that. In or around January of this year, the couple separated.
[3] On 8 March 2016, the victim visited the Manurewa Police Station and reported a domestic altercation with Mr Cash. A police safety order was issued to Mr Cash. Later that day, however, the police were advised by the victim’s mother that Mr Cash was dragging the victim by the arm down the street. The police officers who responded to the incident reported that the victim was attempting to resist Mr Cash but was being pulled along against her will. When he saw the police, Mr Cash ran away. He was charged with assault, an offence which carries a
maximum sentence of one year’s imprisonment.2
[4] On 17 May 2016, the victim obtained a protection order against Mr Cash on the basis that she had been receiving unwanted and threatening messages from him since their separation in January. Despite that order, on 20 May 2016 Mr Cash sent more than 50 text messages and called the victim more than 50 times within a six hour period. The content of the text messages was particularly violent and included threats to drive a car into the victim’s house; to send gang members after the victim; and to kick the victim in the stomach so that she would miscarry. This led to one of
the charges of behaving threateningly.3
1 New Zealand Police v Cash [2016] NZDC 19845.
2 Crimes Act 1961, s 196.
3 Summary Offences Act 1981, 21(1)(a); maximum sentence of 3 months’ imprisonment or a fine
[5] A few weeks later, on 8 June 2016, Mr Cash again contacted the victim by phone. He stated that he would be visiting her address with other men, that he would kidnap her and “kick [her] in the stomach to get rid of the baby.” Shortly thereafter he arrived at an address where the victim was staying and attempted to gain entry, but was prevented from doing so by other people at the address. Mr Cash yelled at the victim from outside the house and then threw a rock through a glass window. He left the address but was located by the police a short distance away from the scene.
This incident gave rise to the final two charges of wilful damage4 and behaving
threateningly.
District Court decision
[6] Judge Glubb described the offending as “concerning in the extreme”.5 He acknowledged that Mr Cash (through counsel) and his mother had provided a more detailed narrative of events which indicated that there had been “a bit of tit for tat” in the relationship.6 The Judge noted, however, that the extent of any dysfunctionality in the relationship as a whole could not excuse Mr Cash’s behaviour towards the victim.
[7] Judge Glubb considered that at least some of the offending was premeditated. He referred to a victim impact statement dated 20 May 2016 in which the victim expressed fears for her safety and that of her family members as a result of Mr Cash’s behaviour. The Judge also acknowledged that the victim had apparently provided an email to counsel stating that she had forgiven Mr Cash and wanted him to be present in her life and that of her child, but noted that such a change in sentiment was not unusual in cases of domestic violence. Judge Glubb summarised the recommendations of the pre-sentence report and noted that the writer had recommended a sentence of imprisonment with release conditions.
[8] The Judge then considered the aggravating factors relating to Mr Cash personally. He noted that Mr Cash had a number of previous convictions, including
not exceeding $2,000.
4 Section 11(1)(a); maximum sentence of 3 months’ imprisonment or a fine not exceeding $2,000.
5 At [5].
convictions for burglary, drugs offending and breach of community work and supervision orders. The Judge also had regard to the fact that the second, third and fourth charges against Mr Cash had arisen while he was released on bail in relation to the first charge of assault. The Judge found that there were no mitigating factors in the offending.
[9] Taking the charges globally, Judge Glubb adopted a starting point of 12 months’ imprisonment, uplifted by 3 months to reflect previous convictions. He gave a discount of 10 per cent for Mr Cash’s youth and a further discount of 25 per cent to reflect Mr Cash’s early guilty plea. That would have produced an end sentence of around 10 months’ imprisonment.
[10] The Judge then considered whether to substitute the sentence of imprisonment with a community-based sentence. He said:
[17] When I look to the need for denunciation and deterrence and the need to hold you accountable and protect the community the scales weigh heavily in favour of imprisonment. But today I am going to effectively put my neck on the line and I am going to give you a chance. A chance to show that you can prove to the community that you are someone who can be trusted and that you will perform appropriately on a community-based sentence.
[11] Judge Glubb accordingly sentenced Mr Cash to four months’ of home detention, as well as 80 hours of community work, “to give [him] a break from the house so [he could] get out and do something meaningful.”7
Grounds of appeal
[12] Mr Cash appeals his sentence on the basis that it is manifestly excessive. The grounds advanced include submissions that the Judge:
(a) failed to consider whether the matter should be referred to a restorative justice conference in accordance with s 24A of the Sentencing Act 2002;
(b) erred in his assessment of the overall gravity of the offending;
(c) failed to take into account the surrounding circumstances, including the previously dysfunctional nature of the relationship as well as the victim’s subsequent desire to resume their relationship;
(d)adopted a starting point that was too high, considering seriousness of the offending and the maximum penalties on each charge; and
(e) indicated animosity towards Mr Cash by standing his case down to the end of the list.
[13] In reply, the respondent submits that Judge Glubb adequately assessed all of the relevant sentencing factors and reached an end sentence that was available and appropriate in all the circumstances.
Approach to appeal
[14] Section 244 of the Criminal Procedure Act 2011 provides that a person who is convicted of an offence may appeal against the sentence imposed. The court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.8 In any other case, the Court must dismiss the appeal.9
[15] The Court of Appeal has confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act
1957.10 Further, despite s 250 making no express reference to “manifestly
excessive”, this principle is “well-engrained” in the courts’ approach to sentence appeals.11
[16] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is
8 Criminal Procedure Act 2011, s 250(2).
9 Section 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
11 At [33], [35].
manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.12
Discussion
[17] The grounds of appeal advanced on behalf of Mr Cash fall into three broad categories:
(a) the Judge erred in failing to refer the matter to a restorative justice process;
(b)the Judge demonstrated animosity towards Mr Cash by standing his case down to the end of the sentencing list; and
(c) the Judge erred in the way he addressed the relevant sentencing factors.
[18] There is nothing in the first two points. Although she may have later resiled from her position, the victim was reported to the Court as having refused to take part in a restorative justice meeting. Further, the case was stood down on the hearing date because the submissions of counsel had been filed late and the Judge needed time to consider them.
The sentencing approach
[19] The conventional approach to sentencing for multiple offences calls for the identification of a lead offence and the determination, as an initial starting point, of a sentence which reflects the gravity of the lead offending. Appropriate uplifts to the initial starting point should then be applied for the other offences, to reflect the seriousness of each, but then adjusted if necessary, on a totality basis, to ensure that
the revised starting point reflects the gravity of the offending overall.13
12 Ripia v R [2011] NZCA 101 at [15].
13 R v Taueki [2005] 3 NZLR 372 (CA) at [46].
Starting point
[20] In this case, Judge Glubb adopted a global "starting point" of 12 months' imprisonment which the Judge considered adequately reflected the seriousness of the offending overall, without identifying how serious he considered each of the component offences to have been. I have concluded he fell into error in doing so.
[21] I am conscious that District Court Judges in busy list courts do not have the same opportunity to prepare for a sentencing as the Judges of the High Court, and I also understand that they are required by the pressures of the day to express their reasons for a sentence economically. But one of the advantages of the structured approach to sentencing for multiple offences is that it leads to an analysis of each individual offence which ensures that its gravity is not under- or over-rated.
[22] In this case, the assault was relatively minor; it involved no more than Mr Cash taking hold of the victim's arm and propelling her in a direction in which she did not wish to go. I accept that Mr Cash had received a police safety order earlier that day and that his behaviour showed extremely poor judgment, but there was no injury and, taken by itself, it would ordinarily have been dealt with appropriately by a fine. Notwithstanding the aggravating feature of the offending, it
did not warrant any period of imprisonment.14
[23] The threats were vile and very distressing for the victim, as was obviously intended, and I accept that the breaking of the window must have been frightening. I agree with Judge Glubb that there was no excuse for that behaviour. But the threats were by text and by telephone without any face-to-face confrontation or immediate prospect that they would be carried out. They were made in the context of a volatile relationship in which the victim herself had not always behaved well, and at a time when Mr Cash was under some emotional pressure. While the victim’s initial response was one of real and understandable concern, the passage of time up to the
sentence date appears to have diminished the seriousness of the threats in her mind
14 See, for example, Fakava v New Zealand Police [2016] NZHC 753, cited by Ms Pomeroy, in which the appellant’s assault on his partner involved pulling out some of her hair. The High Court regarded the offending as being “at the lower end of the spectrum of assaults” and considered a non-custodial sentence would have been appropriate.
and she had reconciled with Mr Cash. Significantly, the threatening and damage
charges were each punishable by no more than three months’ imprisonment.
[24] I accept Ms Pomeroy’s submission that the 12-month starting point for all of the offending was too high when considered in relation to sentences imposed in cases of more violent assault where considerably lower starting points were upheld or imposed on appeal. I illustrate the point by referring to some examples.
[25] In Dickerson v Police, the appellant backed the victim into a corner and grabbed her by the throat.15 On appeal, the High Court placed considerable weight upon the act of strangulation and upheld a starting point of seven months’ imprisonment. In Williams v Police, the offender punched the victim in the mouth causing a cut lip and bruising.16 A starting point of six months’ imprisonment was upheld on appeal. Similarly in Wawatai v Police, the offender punched his partner in the face causing a bleeding nose and swelling to her face.17 A starting point of seven months’ imprisonment was substituted on appeal.
[26] While Judge Glubb was right to condemn the content of the threats, I respectfully consider he overstated the seriousness of the offending and exaggerated the need for denunciation and deterrence. At most, the threatening charges and the damage charge would justify a sentence of one month’s imprisonment each; I have said already that the assault charge did not call for imprisonment. So the overall offending – with an adjustment for totality which takes account that the offending was related – might have led to a starting point of no more than two to three months’ imprisonment.
Uplift for prior offending
[27] The Judge was right to observe that the later offending occurred at the time Mr Cash was on bail, so a sentence at the upper end of the range could have been justified. It follows from my conclusions about the starting point, however, that the
uplift of three months for prior offending cannot be sustained. I am not persuaded,
15 Dickerson v Police [2016] NZHC 801.
16 Williams v Police [2014] NZHC 3255.
17 Wawatai v Police [2015] NZHC 406.
in any event, that an uplift to reflect Mr Cash’s previous convictions was justified: they are not relevant to the present type of offending and the last offending occurred in 2014, when Mr Cash was only 18 years old. There are no other aggravating factors relating to Mr Cash personally.
Discounts for youth and guilty pleas
[28] The District Court Judge granted a discount of 10 per cent to reflect Mr Cash’s youth. That may be thought to be generous: at the time of the offending, Mr Cash was 21 years old and in light of his previous convictions, arguably past the stage when any significant discount for youth should be given. However, he did deserve full credit for his guilty plea, which the Judge properly held to warrant a reduction of 25 per cent.
[29] A discount of approximately one third on a sentence of three months’
imprisonment results in a provisional sentence of two months’ imprisonment.
Alternative sentence to imprisonment
[30] Ms Pomeroy submits that there was no principled basis for the probation officer’s recommendation that the offending required a term of imprisonment. Although Mr Cash had a difficulty at one stage while serving the sentence of home detention following his 2014 conviction for burglary, he completed the sentence and had remained out of trouble until the assault in early 2016. I do not reject the observations about Mr Cash’s attitude and his apparent failure to respond positively to earlier sentences, but I agree with Judge Glubb that the offending was best met by a sentence other than imprisonment. That reflects the requirement in s 8(g) of the Sentencing Act 2002 to impose the least restrictive outcome that is appropriate in the circumstances.
[31] Taking the sentencing approach to the offending I consider to have been
appropriate, a sentence of between one and two months’ home detention could have
been justified,18 but with the imposition of post-detention conditions designed to
18 To reflect the fact that Mr Cash would have been automatically released after serving half of a
monitor Mr Cash’s future behaviour and assist his rehabilitation. The Judge reasonably took a forward-looking and constructive approach both in the terms of the conditions and his general observations on sentencing.
[32] At the time of sentencing, Mr Cash was on electronically monitored bail pending disposition of the charges to which he had pleaded guilty, and also on an unrelated charge of aggravated robbery which he has denied. He had also spent some six weeks in custody, prior to being granted EM bail. It appears from the notations on the various charging documents that the remand in custody related to all of the charges he faced, meaning that it was arguable that the sentences under appeal should have been further reduced on that account. In practice, however, I do not think it is necessary to resolve that issue because the provisions of the Parole Act which are relevant to the calculation of a release date from a sentence of imprisonment do not apply to a sentence of home detention.
Effect of imposing the appropriate sentence
[33] Mr Cash has actually served 41 days of his sentence of home detention to the date of this judgment. That is sufficient punishment and he should be released from that sentence immediately and from the order to complete 80 hours’ community work. The period spent in custody and the restrictive conditions of pre-sentence bail reinforce that view. The order allowing Mr Cash to be on EM bail pending determination of the aggravated robbery charge was suspended during the period of home detention, but the District Court Judge ordered it must be reinstated on completion of the sentence. The result is that Mr Cash must remain at the detention address but under monitored bail until such time as there is any order varying his bail conditions.
Result and orders
[34] I allow the appeal. Under s 251(2) of the Criminal Procedure Act, I set aside
the sentence of community work and vary the sentence of four months’ home detention to one of 42 days’ home detention, but otherwise do not alter the home
short-term sentence imprisonment: Parole Act 2002, s 86(1).
detention address or standard and special post-detention conditions imposed by the
District Court Judge.
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Toogood J
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