Corfield v The Queen

[2016] NZHC 50

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000040

CRI-2015-412-000041 [2016] NZHC 50

BETWEEN

DAVID ROSS CORFIELD

Appellant

AND

THE QUEEN Respondent

Hearing:	2 February 2016
Appearances:	H Henderson for Appellant C E R Power for Respondent
Judgment:	2 February 2016

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Dunedin

Copy to:            H Henderson, Dunedin

CORFIELD v THE QUEEN [2016] NZHC 50 [2 February 2016]

[1]      On 15 September 2014 Mr Corfield was sentenced to imprisonment for a

total period of two years, nine months’ imprisonment.1

[2]      The sentence was made up of two years, three months’ imprisonment for injuring by unlawful act, male assaults female, attempted unlawful taking, and resisting a constable.  It was uplifted by a cumulative six months’ imprisonment for breach of a protection order.

[3]      Mr Corfield seeks to appeal against the imposition of the six month uplift for breach of the protection order.

[4]      The appeal is out of time.  As noted the original sentence was imposed on 15

September 2014.  The appeal was only filed on 3 November 2015 (originally it had been sent to the Court of Appeal on 20 October 2015).  The application for leave to appeal is thus almost a year out of time.

[5]      Mr Henderson suggested that Mr Corfield may have been mistaken and understood that an appeal was to be lodged and properly accepts that from his notes on the file that may have been Mr Corfield’s understanding.  However for whatever reason as the appeal is out of time one of the factors the Court will have regard to when considering whether to grant leave is the merit of the appeal.

[6]      Mr  Henderson  has  very  helpfully  filed  some  preliminary  submissions addressing that point, essentially submitting that a starting point of at most no more than  three  months,  with  a  discount  for  the  guilty  plea,  would  have  been  an appropriate  response  for  the  breach  of  the  protection  order  in  this  case  or alternatively a sentence concurrent with the other sentences was an option to the sentencing Court.  He argues that the starting point of six months for the breach of the protection order was manifestly excessive.

[7]      In response Mr Power submits that in the circumstances of this case the starting point of six months was available to the Judge but that in any event when the

totality of the sentence overall, not just for this breach of the protection order, but for

1      R v Corfield DC Dunedin CRI-2014-012-000768, 15 September 2014, per Judge S J Coyle.

the  other  offending  for  which  Mr  Corfield  was  before  the  Court,  is  taken  into account the end sentence of two years, nine months’ imprisonment was well open to the Judge.

[8]      Relevantly the circumstances of the breach of the protection order are that on

11 January 2014 a temporary protection order was made final in the Family Court at Dunedin.  Shortly afterwards Mr Corfield breached that order and was sentenced to imprisonment for one month.

[9]      Then some 15 days after being sentenced for that offending on 23 May 2014 the victim found a letter in her letterbox.  It was addressed to Jethro Jakobson.  The victim knew the letter and contents were from Mr Corfield because his name was written on the back of the letter.  It was sent from the prison.  Jethro is the family cat to whom the defendant addressed mail to get it out of the Corrections Facility.

[10]     The contents of the letter included an accusation to the victim that she had been a “nark” and a threat referring to the fact that she would get what she’s done and “pay backs” would be coming her way for playing head games.  Although the victim had received a number of previous letters from the defendant, none of them had been abusive or threatening.   The victim was alarmed at the contents of this threatening letter.  At the time the appellant was serving a prison sentence for other offending  and  as  noted  had  a  recent  previous  conviction  for  contravening  a protection order involving the same victim.   He also has previous offences and convictions for offensive or disturbing use of a telephone in 2013;   previous contravention of a protection order in 2008;   male assaults female in 2002;   and another offence of disturbing use of a telephone in 2002;  and several offences for assaults.   Mr Henderson suggested that the majority of the offending was of a threatening rather than actually a physical nature.   The pattern of offending is disturbing and does suggest a propensity for violence in Mr Corfield.

[11]     The offending, namely the breach of the protection order, must as Mr Power submitted, be seen and considered in the context of the other offending that Mr Corfield was sentenced for which was a serious assault on the owner of a car who

intervened when the appellant was trying to break into and take the car.  Mr Corfield

also assaulted that victim’s female partner when she arrived at the scene.

[12]     Mr Henderson submitted that having regard to a number of cases he cited2 involving breaches of the protection order the end sentence of six months for the offending was excessive.  However as counsel know and are aware each case must be seen and considered in the particular circumstances of the offending itself and the circumstances of the offender.  The circumstances of the offender and the offender’s past record are particularly relevant considerations in the case of sentencing for breaches of protection order and particularly where the breaches of the protection order relate to the same victim.

[13]     In this case it is particularly disturbing that the breach of the protection order and the threatening behaviour by Mr Corfield in that breach followed shortly after Mr Corfield had been sentenced for an earlier breach involving the same victim.  It is also of course relevant that the maximum for the breach of a protection order is three years’ imprisonment.

[14]     In this case I am satisfied it was quite proper for the Judge to have imposed a cumulative sentence for the protection order.  It was of a completely different nature to the other offending that Mr Corfield was before the Court for sentence on.  The Judge also properly considered the totality of the sentence imposed overall and whether it was appropriate to impose that cumulative sentence in relation to the protection order.

[15]     Standing  back  and  looking  at  the  matter  overall  I  accept  Mr  Power’s submission that the total sentence imposed of two years, nine months cannot be said to be excessive for the extent of the offending by Mr Corfield in this case and frankly, given the circumstances of the breach of the protection order, nor on its own, could the sentence of six months’ imprisonment be said to be manifestly excessive

for the breach of the protection order in this case.  The nature of the threats from

2      Mataiti v Police HC Whangarei CRI-2014-488-16, 17 July 2014;  Love v Police [2014] NZHC

2643; Williams v Police [2014] NZHC 3255; and Narayan v Police [2012] NZHC 988.

prison were serious and Mr Corfield has a bad history of violence and threatening behaviour.

[16]     For those reasons the application for leave to appeal is dismissed.

Venning J