Coombs v Crown Law

[2015] NZHC 584

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2015-409-000006 [2015] NZHC 584

RAYMOND GARY COOMBS

v

CROWN LAW

Hearing:	26 March 2015
Appearances:	J Lucas for Appellant K B Bell for Crown
Judgment:	26 March 2015

JUDGMENT OF DUNNINGHAM J

[1]      Raymond Gary Coombs appeals against a sentence of four years and three months imprisonment imposed in respect of four charges as follows:

(a)       a charge of male assaults female – eight months’ imprisonment to be

served concurrently;1

(b)      a charge of assault with intent to injure – two years’ imprisonment to

be served cumulatively on the attempting to pervert charge;2

(c)       a charge of breaching a protection order – nine months’ imprisonment

to be served concurrently;3 and

1      Crimes Act 1961, s 194.

2      Crimes Act 1961, s 193.

3      Crimes Act 1961, s 49.

COOMBS v CROWN LAW [2015] NZHC 584 [26 March 2015]

(d)a representative charge of attempting to pervert the course of justice – two years and three months imprisonment cumulative on the assault with intent to injure charge.4

[2]      Mr  Coombs  now  appeals  against  that  sentence  on  the  basis  that  the sentencing Judge erred by imposing a manifestly excessive sentence.

Background

[3]      The charges relate to events which took place over several months from May to July in 2014.  Mr Coombs was in a relationship with the victim.  On 2 May 2014, the two were at his home address when an argument developed, resulting in him pushing  the  victim  in  the  chest  and  slapping  her.     On  leaving  the  address, Mr Coombs pursued and continued to physically harass the victim.  He grabbed the victim and threw her to the ground.   The victim attempted to run away but was caught by Mr Coombs who punched her in the side of her face and threw her into a parked car. This offending gives rise to the male assaults female charge.

[4]      A protection order was subsequently granted, however, the relationship continued.

[5]      On  9  May  2014,  Mr  Coombs  and  the  victim  had  a  further  argument. Mr Coombs  struck  her  in  the face  causing her  to  fall  to  the  ground.    He then squeezed her throat and continued to punch her in the face.  After briefly stopping and crying, Mr Coombs kicked the, victim in the kidneys five times. When the victim tried to leave he slammed her fingers in a window before finally letting her go.

[6]      The victim sustained a swollen and bruised right eye, swollen lips with cuts or bruises on the inside of her lips, a small bruise on her left ear, bruising to the left side of her neck, and a graze to her palm.  She had difficulty moving her jaw and suffered pain in her lower back.  This offending gave rise to the assault with intent to

injure and breach of protection order charges.

4      Crimes Act 1961, s 117.

[7]      On 4 July 2014, Mr Coombs was arrested and remanded in custody.  Between

9 and 18 July, he called his father in an attempt to get his assistance in encouraging the victim to change her statement.   Mr Coombs eventually spoke to the victim himself, instructing her to change her statement to suggest that it was two females who assaulted her.  There was also an offer of $600 made to the complainant if she withdrew her complaint against him.   On 14 July, the victim went to the police station where she signed a complaint withdrawal form. This offending gave rise to the attempting to pervert the course of justice charge.

Sentencing indication

[8]      On  6  October  2014,  Mr  Coombs  appeared  before  Judge  Saunders  on  a sentencing indication.  On that occasion the Judge took the most serious charge, the charge of perverting the course of justice, as a starting point.  He indicated that the starting point would be in the range of two and a half to three years, but some uplift would be justified based on the fact that Mr Coombs had a previous conviction some time ago for attempting to persuade a witness.  He then went on to indicate that there would be a cumulative period of two years, eight months to recognise the other serious offences and then would apply a full 25 per cent discount, of 17 months would apply, leaving an end result in the order of four years three months’ imprisonment.

[9]      When it came to sentencing the Judge followed his sentencing indication. Again he took as the lead charge, perverting the course of justice which carries of course, up to seven years’ imprisonment.   He said a three year starting point was appropriate in relation to that, but then indicated that he took a two year six month starting point with an uplift of six months to arrive at that three year sentence.  He indicated that as far as the male assaults female on 2 May was concerned, an eight month starting point would be appropriate for that, and, 18 months was the starting point with the assault with intent to injure. As those were the two separate incidents, they would accumulate and he looked at his violence in the past and said it would be subject to an uplift.

[10]     Ultimately, he reached a view that even though there was a credit for the guilty plea and the element of remorse that the sentence came back to that he had given at the sentencing indication of four years three months.

[11]     So the sentence that was imposed on the charge of attempting to pervert the course of justice, was an end sentence of two years three months.   On the assault with intent to injure a cumulative sentence of two years.   On the male assaults female, an eight month sentence to be served concurrently with the 18 month sentence.    In relation to the breach of the protection order,  again nine months’ imprisonment to be served concurrently with the sentences that had been imposed.

Submissions for the Appellant

[12]     The appellant’s submissions are that the District Court erred in imposing an end sentence of four years and three months as it was manifestly excessive.  It was excessive both as a starting point for the offending, and was too high having regard to the circumstances of the offending and the relevant case law.

[13]     The appellant submitted that the overall starting point, (taking into account his previous convictions) ought to be in the range of four years and six months’ imprisonment to four years and nine months’ imprisonment then, taking into account the guilty plea discount of 25 per cent, should leave an overall sentence in the range of three years five months to three years eight months’ imprisonment.

[14]     In terms of the lead charge of attempt to pervert, the submissions describe the offending as “amateurish”, that the appellant simply “panicked and tried to extricate himself from the situation he found himself in.”   Importantly, he stresses that the offending did not involve any violence threats, only pressure on the basis that both parties wanted Mr Coombs out of jail.

[15]     In respect of the violence convictions, these are portrayed as being in the context of a “tumultuous and tempestuous” relationship.  Mr Coombs asserts that the violence occurred after he confided in the victim about how he was sexually abused as a child and the victim mocked him.  It was not premeditated.  For the breach of protection order charge, it is asserted that this should be viewed in light of the fact

that the two parties were in a relationship and living together at the time of the offending.

[16]     Finally, a discount is said to be warranted for the appellant’s willingness to address his offending which was outlined in the psychological report prepared for sentencing.

Submissions for the Respondent

[17]     For the Crown, it submitted that there are a number of features which justify the starting point for the lead charge:

(a)      there was a sustained campaign by the appellant to have the victim change  her  evidence.    He  employed  both  his  father  and  sister  to convey messages to the victim and he sent numerous letters to the complainant and spoke directly to her.

(b)the conduct was in relation to a serious charge of violence against him.

(c)      the intention of the appellant was to have the charges withdrawn and the blame placed onto unknown offenders.

(d)      the attempt involved an element of bribery – because of the offer of

$600; and

(e)      finally, the victim was vulnerable and subject to his influence – she was  his  partner,  she  was  the  victim  of  his  violence  and  had  a protection order against him.

[18]     Counsel for the respondent submits that in fact a higher starting point could have easily been adopted by the Court and I should bear that in mind when reflecting on the totality of sentencing.

[19]     The respondent goes on to note that in respect of the violence offending, there were two, unrelated violence charges justifying individual, cumulative sentences. There was also a breach of a protection order which can be viewed as an aggravating factor of the more serious of the assaults with intent charge.  The facts of that charge put it near the top of the range as it is and a further increase is then required on the basis of the male assaults female charge.

[20]     It is accepted that the appellant was entitled to a discount for the guilty plea but his significant history of criminality does, in the respondent’s view, warrant an uplift.  Although the District Court Judge was correct in determining that any suggestion of real remorse and making amends so soon after trying to get the complainant to withdraw her complaint was, as the Judge described it, “thin”, and the respondent emphasised that the Judge was well placed to make that judgment.

Jurisdiction

[21]     My jurisdiction to allow the appeal is well understood.  As the first appeal

Court, I can only allow the appeal if I am satisfied that:5

(a)       For  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      That a different sentence should be imposed.

[22]     That is clear from the recent judgement of Tutakangahau v R, the Court of Appeal have confirmed that the approach under the Criminal Procedure Act 2011 has not  departed  from  that  under  the  previous  Crimes Act  1961  and  the  Summary Proceedings Act 1957, regimes.6

Discussion

[23]     Counsel  for  appellant  submitted  numerous  cases  of  similar  offending  to support his submission that the totality of the sentence imposed was outside the

range  of  what  a  Judge  could  have  imposed.    However,  I  do  consider  that  the relevance of these cases is diminished since the Court of Appeal decision in M v R.7

In that case, the Court of Appeal expressed reservations about the application of R v

Hillman,8 a case which predated the Sentencing Act 2002. There they said:

We add an observation about the continued, widespread reliance on R v Hillman as establishing a benchmark of three years for serious offending of this kind. We have reservations as to whether this approach correctly reflects current sentencing practices. It was a decision that pre-dates the Sentencing Act 2002 and, in particular, would seem to be inconsistent with the effect of s 8(c) and (d) which requires that the maximum penalty and penalties near to the maximum be imposed for offending that is within the most serious of the cases and near to the most serious of the cases for which the penalty is prescribed. Given that the maximum penalty for attempting to pervert the course of justice is seven years imprisonment, there is no apparent justification for continuing to view a starting point of three years imprisonment for serious cases as properly reflecting the effect of s 8(c) and (d).

[24]     In my view, this case suggests I should be cautious in relying on decisions predating M v R which involve perverting the course of justice charges.  This is even the case in cases where perverting the course of justice is one charge amongst others and the totality of the overall sentence is a factor.

[25]     I also note that the Court of Appeal has observed that “any attempt to disturb the process of administration of justice is to be deplored and in all but the most exceptional circumstances, to be met with moderately lengthy terms of imprisonment”.   I consider this too, shines some light on the seriousness of the attempting to pervert the course of justice charge.

[26]     The District Court Judge took a starting point of two years and six months for the attempting to pervert the course of justice charge and a six month uplift was then applied for the appellant’s previous history in defeating the course of justice type matters.  This was primarily for the four previous charges of attempting to dissuade a witness in 2003.   However, it is noted that the appellant also has convictions for obstructing/hindering police in 2003, obstructing/perverting/defeating the course of justice in 2000 and obstructing/hindering police in 1998.

[27]     On the basis that the appellant attempted to enlist his father to help him to pressure the complainant to withdraw her charge, attempted to bribe the victim and that victim did actually succumb to the pressure, a two year six month starting point does not appear to me out of the range compared with what the Judge could have imposed.  It is around the lower third of the available sentence for the crime, so in my view pegs the offending at the low to moderate level.  This, I consider, reflects the fact there is an absence of violence threats.   The six month increase for the appellant’s prior relating offending would also appear within range.

[28]     The assault with intent charge and the male assaults female charge incurred sentences of 18 months and eight months respectively.  In terms of the assault with intent charge, the aggravating features were that the appellant was on bail at the time and a protection order had been granted due to a previous violence towards the complainant. The attack was also to the head of the complainant.

[29]     Along with the consistent history of assaults in his record and injuring with reckless disregard, I consider that the six month uplift was justified.   In my view there is little to suggest that the Judge acted outside his allowable scope of his discretion in imposing the sentence that he did.   The Court of Appeal has acknowledged the seriousness of charges of attempting to pervert the course of justice and has indicated that they should almost always be met with moderate terms of imprisonment.   This case involved contacting the complainant on multiple occasions, attempting to enlist his father for assistance and bribery.

[30]     I consider that the two year six months starting point still pegs the offending at the low to moderate level.  In terms of the issue of totality, the Judge considered that the most serious of the violence charges should be served cumulatively, while the male assaults female and breach of protection order charges should be served concurrently.

[31]     In my view the sentence arrived at by that mechanism sufficiently accounted for the totality of the offending.  In terms of any discount for the appellant’s asserted remorse and willingness to address his offending, I am satisfied the Judge was in the

best  position  to  assess  the  genuineness  of  this  and  he  did  expressly  make  an assessment of that and effectively warranted that no extra discount was required.

[32]     I am not inclined to revisit that assessment and, even if I were to give any further discount, it would be so modest as not to suggest that the overall sentence arrived at was in error.

[33]     Accordingly, the appeal is dismissed.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch