Crean v Police
[2015] NZHC 3203
•15 December 2015
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2015-419-44 [2015] NZHC 3203
BETWEEN PATRICK KEVIN CREAN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 15 December 2015 Counsel:
A J Hamblett for Appellant
T A Needham for RespondentJudgment:
15 December 2015
JUDGMENT OF BREWER J
Solicitors/Counsel: Joseph Hamblett (Hamilton) for Appellant
Almao Douch (Hamilton) for Respondent
CREAN v POLICE [2015] NZHC 3203 [15 December 2015]
Introduction
[1] Judge Riddell sentenced the appellant, Mr Crean, to 13 months’
imprisonment on 20 October 20151 after he pleaded guilty to the following charges: (a) two charges of breaching a protection order;2 and
(b) one charge of breach of release conditions.3
[2] Mr Crean appeals the sentence on the basis that it is manifestly excessive.
[3] The Crown submits that the sentence imposed was within range for the offending, and it is not manifestly excessive.
Facts
[4] Mr Crean was in a relationship with the victim which ended in early 2015. A
protection order has been in place for the safety of the victim since 5 December
2014.
Contravenes protection order (x2)
[5] On 29 June 2015, Mr Crean was at the victim’s house, where they were consuming alcohol together. They began to argue and Mr Crean refused to leave the address despite being asked repeatedly. The victim was able to leave the address and she contacted Police. Mr Crean was found by Police hiding under the victim’s bed. In explanation, Mr Crean said that the victim had invited him back, taken all his money and wanted to go out drinking contrary to his wishes.
[6] Nine days later, on 8 July 2015, Mr Crean was again at the victim’s house. Mr Crean and the victim were having a few alcoholic drinks but they again began to argue. The victim asked Mr Crean to leave and he refused. The victim then left the
house to get away from Mr Crean. She started walking down the road and Mr Crean
1 Police v Crean [2015] NZDC 21304.
2 Domestic Violence Act 1995, ss 19 and 49. This carries a maximum penalty of three years’
imprisonment.
3 Sentencing Act 2002, s 96(1). This carries a maximum penalty of one year’s imprisonment.
followed her for approximately one kilometre. They continued to argue, with the victim repeatedly telling Mr Crean to go away. The victim walked to a public toilet. She locked herself in to get away from Mr Crean and waited there until the Police arrived. Again, Mr Crean said, in explanation, that the victim had invited him over and wanted to take his money.
Breach of release conditions
[7] The incident on 8 July 2015 also gave rise to the third charge of breaching release conditions. Mr Crean was released from prison on 17 June 2015. One of his release conditions required him not to associate with the victim.
Judge Riddell’s sentence
[8] Judge Riddell sentenced Mr Crean to one year’s imprisonment for the 8 July
2015 breach of protection order. Her Honour imposed a concurrent sentence of one year’s imprisonment for the earlier breach. The Judge then sentenced Mr Crean to one month in prison for the breach of his release condition, which was to be served cumulatively. This resulted in an end sentence of 13 months.
[9] Judge Riddell did not give a sentencing starting point, nor explain what discounts or uplifts she may have decided upon for aggravating or mitigating features. The standard approach to sentencing requires the setting of a starting point for the sentence by looking at the nature and extent of the offending, followed by a consideration of whether there is anything in the offender’s personal circumstances that would justify adjustments to that starting point – either mitigating factors that
might reduce the sentence, or aggravating factors that might increase it.4
[10] Accordingly, it is not clear on the face of the sentencing notes whether the Judge reached these sentences after making adjustments for factors personal to Mr Crean, including the fact that he had pleaded guilty to the three charges.
Ground of appeal
[11] Mr Hamblett for Mr Crean submits that the Judge sentenced Mr Crean to a sentence that was manifestly excessive because, in particular, she failed to give Mr Crean any credit for his early guilty pleas. In his written submissions, he argues that the end sentence should be seven months two weeks’ imprisonment based on the following sentencing formula:
(a) The adoption of a concurrent starting point of nine months’ imprisonment on the two breach of protection order charges and a further concurrent starting point of one month’s imprisonment for the breach of release condition charge.
(b)An uplift of no more than two months to reflect Mr Crean’s previous breaches of protection orders and offending while on release conditions.
(c) A discount for the victim’s conduct in the offending, namely encouraging Mr Crean to spend time with her and her abuse of Mr Crean’s generosity.
(d) A discount of 25 per cent for the early guilty plea.
[12] This formula was developed before Mr Hamblett realised the effect on sentences of the recent increase in the maximum sentence for breaches of protection orders. Mr Hamblett’s submission today is that, taking into account the increase in the maximum sentence, the end sentence for Mr Crean should have been approximately nine months’ imprisonment.
Approach to appeal
[13] An appeal against sentence must be allowed if the Court is satisfied there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.5 The principles behind the law are well known, and are not
changed by the Criminal Procedure Act 2011.6 A sentence will be manifestly excessive if it is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender.7
[14] Because an appellant must satisfy the Court that a different sentence should be imposed, the High Court will not intervene where the sentence is within a range that can be properly justified by accepted principles. In deciding whether a sentence is manifestly excessive, the focus is principally on the effective end sentence rather than the process by which the sentence is reached.8
[15] Since Judge Riddell’s sentencing notes do not help me with the process by which her end sentence is reached, I will have to go through the sentencing process myself to determine an appropriate end sentence. I will then compare the end sentence I calculate with the one reached by Judge Riddell and make my decision as to whether Judge Riddell’s sentence is manifestly excessive.
Was the end sentence manifestly excessive?
Start point – breaches of protection orders
[16] I start by making some general comments about the sentencing of those convicted of breaching protection orders:
(a) First, there is no tariff authority for the offence. Sentencing has to follow first principles.
(b)Second, the breaching of Court orders, including protection orders, is one of the types of offending where prior convictions are integral to the assessment of the gravity of the index offending.9 This is because a history of previous breaches is directly relevant to the assessment of
the gravity of the most recent offending and to the culpability of the
6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
7 At [33], [35].
8 Ripia v R [2011] NZCA 101 at [15].
9 Tetau v Police [2015] NZHC 1284 at [26].
offender.10 But care must be taken to ensure there is no double counting of previous convictions when aggravating personal circumstances are assessed at the second stage of the sentencing exercise.11
(c) Third, the maximum sentence for breaching a protection order, as I
have already noted, was increased by Parliament on 25 September
2013 from two years’ imprisonment to three years’ imprisonment.12
Sentences imposed before then are, therefore, of limited assistance in providing guidance as to an appropriate start point. It follows that I give little weight to the decision in Coory v Police,13 an authority on which Mr Hamblett relied in his written submissions.
[17] Mr Hamblett acknowledged before me that Coory is of limited help. However, he has taken me carefully through the cases relied on by the Crown and distinguishes them on their facts and, where possible, by the appellants’ greater records of breaches of protection orders. As I have said, I have to look at this case on first principles and given the diversity of factors in all the cases, it is the broad themes to which I have to have regard in order to maintain reasonable consistency in sentencing.
[18] I find the aggravating features of Mr Crean’s offending to be:
(a) Mr Crean went to the victim’s house and consumed alcohol there.
(b) Mr Crean did not leave when asked. The Police had to be called.
(c) Mr Crean has two very recent previous convictions for breaching protection orders on 13 January 2015 for which he received
concurrent sentences of nine months’ imprisonment. This sentencing
10 Mitchell v R [2013] NZCA 583 at [12]–[14] and [17].
11 Tetau v Police, above n 9, at [27].
12 Domestic Violence Amendment Act 2013, s 11(1).
13 Coory v Police HC Dunedin CRI-2010-412-0037, 25 November 2010.
embraced two other charges, but the breaching protection orders were the lead charges.
(d)Mr Crean was subject to a release condition that he was not to associate with the victim.
(e) Mr Crean offended on two occasions in close succession (nine days between each offence).
[19] Having considered the authorities to which Ms Needham directed me,14 as well as ones I have found myself,15 I am of the view that concurrent sentences, each with a start point of 15 months’ imprisonment, would adequately reflect the gravity of Mr Crean’s breach of protection order offending.
Start point – breach of release condition
[20] I agree with Judge Riddell that a start point of one month’s imprisonment is appropriate for the breach of release condition charge. But as the offence is related in time and circumstance to the breach of protection order offending on 8 July 2015, I do not think it appropriate to impose a cumulative sentence for the charge. I note that I have taken this charge into account as an aggravating feature in setting the start point for the breach of protection order offending.
Adjustments
[21] Although I have already taken into account Mr Crean’s previous convictions for breaching protection orders in setting the start point, I note that Mr Crean has a number of other relevant previous convictions. These include three previous convictions for male assaults female, one conviction for common assault and one for failure to answer bail. It is appropriate to uplift Mr Crean’s sentence to take into account these convictions because there is a particular need to deter him from violent
offending and to encourage him to comply with orders of the Court. There is also a
14 Mitchell v R [2015] NZCA 442; Tetau v Police [2015] NZHC 1284; Matai v Police [2014] NZHC 1675; Kumar v Police [2015] NZHC 1575.
15 Woods v Police [2014] NZHC 305; Narayan v Police [2014] NZHC 1241; Beck v Police [2014] NZHC 931; Apineru v Police [2014] NZHC 1969; Palmer v Police [2015] NZHC 143.
need to protect the community from his continual offending.16 An uplift of four months is proportionate to the start point I have adopted.17
[22] I do not accept Mr Hamblett’s submission that a discount is warranted on the basis that the victim’s conduct reduced Mr Crean’s culpability. The fact that Mr Crean and the victim had a dispute over property or money did not entitle Mr Crean to breach orders of the Court in an attempt to settle that dispute. To allow a discount would fundamentally undermine the protective nature of these orders. It is necessary to remind strongly those against whom protection orders are issued that they cannot and must not contact victims under any circumstances. Of course, if Mr Crean had been present other than through invitation, this could have adversely affected his starting point. In other words, it is an absence of an aggravating factor rather than the existence of a mitigating factor.
[23] I agree with Mr Hamblett that a discount of 25 per cent is appropriate given that Mr Crean pleaded guilty at the earliest stage. This results, on my analysis, in an end sentence of 14 months’ imprisonment.
Home detention
[24] As I have reached a sentence that is less than two years’ imprisonment, home detention becomes an option. Quite appropriately, Mr Hamblett did not seek to argue that a sentence of home detention is the least restrictive outcome available. Given Mr Crean’s previous convictions and the fact that the present offending occurred shortly after Mr Crean was released from a prison sentence for earlier breaches of a protection order, a sentence of home detention would not be appropriate to achieve the purposes and principles of the Sentencing Act 2002; in
particular, the principles of denunciation and deterrence.
16 Blackmore v R [2014] NZCA 109 at [12].
17 Taylor v R [2012] NZCHA 332 at [46].
Decision
[25] It follows from what I have said that far from finding Judge Riddell’s overall sentence manifestly excessive, I find it to be well within the range available to her Honour.
[26] The appeal is dismissed.
Brewer J
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