Cassidy-Gugich v R

[2016] NZHC 3027

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000374 [2016] NZHC 3027

BETWEEN

HARRISON CASSIDY-GUGICH

Appellant

AND

THE QUEEN Respondent

Hearing:	13 December 2016
Counsel:	B Vaili for Appellant P J L Arnold for Respondent
Judgment:	13 December 2016

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

Public Defence Service, Auckland.

Meredith Connell, Auckland.

CASSIDY-GUGICH v THE QUEEN [2016] NZHC 3027 [13 December 2016]

The issue

[1]      The  appellant  pleaded  guilty  to  charges  of  kidnapping  and  breaching  a protection  order.    He  was  sentenced  to  a term  of two  years and  three months’ imprisonment.1   The appellant contends the sentence is manifestly excessive.  Home detention is exhorted.

[2]      The appeal is out of time, but the Crown offers no opposition to leave being granted for the appeal to be heard.  I grant leave.

Background

[3]      The victim is the appellant’s former partner.  After leaving him, she moved back with her parents.  The appellant continued to make unwanted contact.  He was eventually served with a trespass order in relation to the address.  But the appellant continued to park nearby and watch the victim through binoculars.

[4]      In January 2016, the victim applied for and obtained a protection order.  The appellant continued to send her text messages.  He would often ask for money.

[5]      On 9 February 2016, the victim finally relented.   She drove her car to the meeting place, got out and handed the appellant $100 through the car window.  He said he would give the money back if she sat in the car and listened to him.  The victim did so.   The appellant then drove away with the victim in his car.   She repeatedly asked him to stop.  The appellant did not.  The victim yelled at passersby and then tried to open the door.  The appellant slammed on the brakes, which caused her o hit her head on the dashboard (she was not wearing a seatbelt).

[6]      The appellant drove the victim for approximately seven kilometres.  As they passed a dairy, the victim threw her handbag out of the window.  She told people there to call the Police.  She then tried to do so herself using her mobile phone.  The

appellant grabbed it off her and threw it out of the window.

1      R v Cassidy-Gugich [2016] NZDC 22523.

[7]      When the appellant noticed the victim’s handbag was missing, she told him it was back at the dairy and Police would be coming.  The appellant then returned her to the dairy.  Members of the public intervened. The appellant drove away.

[8]      The victim sustained no physical injuries, but was extremely distressed.  She describes feeling brainwashed and worn down by the appellant’s harassment, humiliated and vulnerable.

[9]      The appellant is 23 years old.  His pre-sentence report describes an extensive criminal history “littered with drug, dishonesty and drink and driving-related offences”.  The appellant also has a conviction for threatening to stab someone in

2010.  The report refers to genuine remorse on his part, albeit “the depth of this is unknown”.   The appellant is considered to pose a high  risk of  harm to others, especially any partner or girlfriend.

[10]     Judge Down adopted a starting point of two and a half years’ imprisonment for the kidnapping offence.  The Judge applied a three month uplift for the breach of the protection order offence, and a further three month uplift for the appellant’s previous offending.  His guilty pleas attracted a full 25 percent discount, resulting in a sentence of two years and three months’ imprisonment.

The appellant’s case

[11]     The appellant contends the sentence is manifestly excessive.  That said, his analysis is not much different from that adopted by the Judge.  The appellant submits the starting point should have been two years and two months’ imprisonment (not two and a half years’ imprisonment), and total uplifts not more than four months (rather than six months).  The appellant contends the sentence was in range for home detention and that sentence should have been imposed.

Analysis

[12]     The crime of kidnapping is without a guideline sentencing judgment and so a number of cases were cited in argument.  It is sufficient to refer to two.

[13]     In Heke v R the defendant broke into his ex-partner’s home, pulled her down the stairs by the hair and pushed and shoved her.2   The defendant also threatened to kill the victim.  Events came to an end only when Police were called.  The Judge at first instance adopted a starting point of two years and four months’ imprisonment. The Court of Appeal described that as orthodox and well within range.

[14]     In Moffatt v R the defendant and his partner were driving home.3     They argued.    The  victim  asked  to  be  let  out  of  the  car.    The  defendant  eventually complied, but when she got out the defendant chased her and threw her back into the car.  The victim tried to escape and the defendant responded violently by ripping her hair.   The incident came to an end when the victim called the Police from the defendant’s address.  He later made violent threats to her.  The judgment records a profound effect on the victim.   A starting point of two years and nine months’ imprisonment was adopted in relation to the primary offence of kidnapping.

[15]     The same starting point was adopted in R v Yates, which was not cited in argument.    There  the  defendant  assaulted  the  victim  and  then  locked  her  in  a shipping  container  for  several  minutes.4    That  case  also  involved  a  second kidnapping charge: the defendant dragged the victim back to the house when she tried to escape.

[16]     This common law thread reveals starting points from approximately two and a half years’ imprisonment are adopted in relation to defendants who briefly detain a former partner, at least when there is associated violence or threats of violence, or another aggravating feature or features.   Longer and more serious instances of kidnapping obviously attract more severe sentences.

[17]     Against this background the Judge’s starting point is unremarkable.  So too

the uplifts. The quarrel here is four months versus six months.  Sentencing remains a discretionary exercise.  No error is apparent.

2      Heke v R [2016] NZCA 38.

3      Moffatt v R CA193/01, 30 October 2001.

4      R v Yates [2012] NZHC 3387.

[18]     It  follows  home detention  does  not  arise.    But  even  if  the jurisdictional threshold was crossed, this would not be an appropriate case for home detention. Sentencing imperatives of deterrence, denunciation and public protection loom large here for reasons expressed by the Court of Appeal in Heke:5

In R v Wharton, this Court observed that “[t]here can be an infinite variety of circumstances which underlie the crime of kidnapping” and that cases involving “a former spouse who defies a protection order and detains a fearful, often battered and helpless female ex-partner for motives of power, revenge, jealousy or irrational anger” are becoming more common and are no less serious than other types of kidnapping.  The Courts’ recognition of the particular need for deterrence, denunciation and protection in such cases has, if anything, increased in the 12 years since that case was decided.

[19]     Autonomy is important—and violations of a person’s autonomy are treated seriously by the criminal law.

[20]     The appeal is dismissed.

……………………………..

Downs J

5      Heke v R, above n 2, at [10] (footnotes omitted).