Cummings v Police

[2013] NZHC 1830

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2013-425-000026 [2013] NZHC 1830

BETWEEN  KEVIN NATHAN CUMMINGS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   19 July 2013 (by audio visual link from Invercargill) Appearances:  G S Williamson for Appellant

R W Donnelly for Respondent

Judgment:                23 July 2013

JUDGMENT OF D GENDALL J

[1]      The   appellant   appeals   against   an   effective   sentence   of   19   months imprisonment  imposed  upon  him  on  18  June  2013  in  the  District  Court  at Invercargill for the following offences:

(a)       Possession of a firearm without a licence pursuant to s 20(1) of the

Arms Act 1983;

(b)      Male assaults female pursuant to s 194(b) of the Crimes Act 1961; (c)           Threatening to kill pursuant to s 306 of the Crimes Act 1961;

(d)      Resisting police pursuant to s 23(a) of the Summary Offences Act

1981; and

(e)       Remittance of just over $3100 of fines – one month’s substituted

sentence imposed.

CUMMINGS v NEW ZEALAND POLICE [2013] NZHC 1830 [23 July 2013]

[2]      The basis of the appeal is that a sentence of home detention should have been substituted.

Factual background

[3]      The charges in question arose out of incidents at the appellant’s home on

11 February 2013.   The appellant has three children aged twelve, eight and four years.   His sister-in-law, and her children aged four and three years, were at the address at the time.   The appellant had been drinking spirits and was highly intoxicated by about 2 a.m. when the incidents occurred.

[4]      An argument  apparently developed between  the  defendant,  his  wife,  and sister-in-law.   The defendant ordered his wife out of the room and she went to a bedroom.  The defendant then stood over his sister-in-law and punched her in the head, connecting with her forehead, and then punched her a second time.   This resulted  in  the  sister-in-law  receiving  a  swollen  left  eye.    She  then  ran  into  a bedroom, grabbed her young children and escaped from the house by jumping out a window.

[5]      The appellant then put a BB pistol down his pants and walked after her, yelling at her to come back.  She did not.  He then returned to the house and ordered his wife to lock the back door.   She was clearly terrified about the appellant’s behaviour and left the address.  There was no time for her to take the three children who remained in the house.

[6]      The police were called and spoke with the appellant’s wife.  He then rang his wife’s phone, which a police officer answered.  When the appellant was told his wife would not be speaking to him, he stated that “If you don’t put her on now, I’m going to start killing everyone in the house”.  The only persons in the house at the time were the appellant and his three children.

[7]      As a consequence of this behaviour the Armed Offenders Squad was called out. The accused did come out of the house but was unco-operative with instructions and, as a result, pepper spray was used to effect an arrest.  Police then searched the house, found the BB pistol and, in a wardrobe in the appellant’s room, a .22 rifle.

When the appellant was later spoken to, he denied punching his sister-in-law but admitted threatening the children.   He also denied possessing the rifle without a licence and said that it did not work and it was kept only for sentimental reasons.  It seems that the appellant admitted resisting arrest but gave no explanation.

[8]      The appellant is a 33 year old male.   He has a rather extensive criminal history with a significant number of previous convictions for violence, including:

2008 – assault with a blunt instrument

2005 – male assaults female

2005 – speaks threateningly

2003 – fighting in a public place

2000 – assaulting police

2000 – male assaults female

1999 – common assault

1997 – common assault

[9]      In addition, he has convictions for dishonesty, driving offences including driving with excess breath alcohol and driving while disqualified; drug offences involving  possession  of  cannabis;  wilful  damage  and  obstructing  the  course  of justice; breaches of sentence, community service and community work orders; and failure to answer police bail.

[10]     With  respect  to  the  appellant’s  breaches  of  court  sentences,  these  have

included:

2006 – breach of community work

2005 – breach of community work

2005 – breach of community work

2000 – breach of periodic detention

1999 – breach of periodic detention

1997 – breach of community service

[11]     There is a victim impact statement on the file from the appellant’s sister-in- law.  This notes that he has been her brother-in-law for some 14 years and has also been aware that she suffers from epilepsy.  The statement says how scared she is of the appellant and that she thinks that he will “return to finish what he started if not on me, someone else” if and when he is released on bail.  She also notes that she could have had an epileptic fit from the defendant’s assault on her and he would have been well aware of this.

Decision of the District Court

[12]     In the District Court Judge Turner adopted a starting point here of 18 months imprisonment, considering the charge of threatening to kill to be the lead offence.  In assessing the level of offending His Honour noted that the victims of the threat were the appellant’s three young children, he was in a position of trust or authority over them and he had abused this.

[13]     From the starting point of 18 months imprisonment Judge Turner uplifted the sentence by six months to take into account the appellant’s previous convictions. Allowing a full discount for the appellant’s guilty pleas His Honour arrived at an end sentence of 18 months imprisonment.

[14]     Turning to the other charges which arose out of the same offending His

Honour applied concurrent sentences.

[15]     As  to  the  issue  of whether  home  detention  should  be  substituted, Judge Turner noted that there were two possible addresses which were available and that these were suitable.   He acknowledged that earlier the appellant had complied satisfactorily with e-bail requirements, showing an ability to comply with an electronically monitored sentence and, furthermore, he had previously serviced a sentence of community detention in 2008 without incident.

[16]     Factors against substitution of home detention, however, were the appellant’s numerous previous convictions, the seriousness of his offending on this occasion and also his breaches of Court sentences.

[17]     Taking into account all these factors, Judge Turner came to the decision that the  sentence  should  not  be  commuted  to  one  of  home  detention.   Accordingly His Honour imposed the sentence of 18 months imprisonment for the total offending arising out of the 11 February 2013 incidents (with concurrent sentences for all charges arising from offending on this date) and a sentence of one further month (cumulative) was added due to the remittance of the fines.

[18]     The basis of the present appeal is that a sentence of home detention should have been substituted.  The specific grounds of the appeal outlined in the appellant’s Notice of Appeal are:

1.That the Court failed to take into account the relevant principles and purposes of sentencing and decided to sentence  to imprisonment instead of home detention.

2.That  the  Court  did  not  take  into  account  the  least  restrictive sentence.

3.That the Court took into account irrelevant matters, namely prior breaches of community based sentencing that were historical.

4.That the Court failed to take into account the view expressed by the pre-sentence report-writer.

Assessment of home detention on appeal

[19]     This was addressed by the Court of Appeal in Fraser v R[1]  in a judgment of that Court dated 21 June 2013 at paragraph [20] as follows:

[1] Fraser v R [2013] NZCA 250.

[20]      As this Court has previously pointed out, an appeal against a Judge’s refusal to impose home detention rather than a short term sentence of imprisonment is an appeal against the exercise of a “fettered discretion” – a discretion constrained by the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002.  There is nothing in the Sentencing Act  suggesting the presumption  for  or  against imposing home  detention rather than imprisonment, only the sentencing principle that the Court must impose  the  least  restrictive  outcome  appropriate  in  the  circumstances. Further, this Court has made it clear that an appeal against a refusal to grant home detention is not an opportunity to review or revisit the merits.  What the appellant must do is demonstrate an error by the Judge in exercising his sentencing discretion.

Legal principles

[20]     The Sentencing Act 2002 sets out the principles to be taken into account in sentencing offenders.  Section 8 includes requirements that the Court must:

(a)      take into account the gravity of the offending in question, including the degree of culpability of the offender;

(b)must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with similar offenders in similar circumstances; and

(c)     impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in s 10A;

(d)take into account any particular circumstances of the offender that mean that his sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance,

be disproportionately severe;

(e)     must take into account the offender’s personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and

(f)      must  take  into  account  any  information  provided  to  the  Court concerning the effect of the offending on the victim.

[21]     Section 16(1) of the Sentencing Act 2002 provides that when considering a sentence of imprisonment, the Court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.  Section 16(2) provides that imprisonment must not be imposed unless the purposes of sentencing outlined in s 7 cannot be achieved by any other sentence  and  that  no  other sentence  would  be  consistent  with  the principles  of sentencing in s 8.

[22]     Section  17  of  the  Sentencing Act  2002  states  that  imprisonment  can  be imposed if the Court is satisfied on reasonable grounds that the offender is unlikely to comply with any other sentence that it could lawfully impose and that would otherwise be appropriate.  In addition to the recent comments of the Court of Appeal noted at paragraph [19] above, that Court has made it clear on other occasions, including in 2008 in the decision R v Iosefa[2]  that home detention provides a real alternative to imprisonment and carries with it a considerable measure of deterrence and denunciation.

[2] R v Iosefa [2008] NZCA 453 at [35] and [41].

[23]     And, in R v D[3] the Court of Appeal said at [66]:

[3] R v D [2008] NZCA 254.

[66]      In  a  case  like  this,  the  sentencing  Judge  is  required  to  form  a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending.  The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other.  In such cases, the view of a sentencing Judge  from  the  jurisdiction  in  which  crimes  of  the  type  in  issue  are frequently tried assumes greater weight.  He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another.  The broader the base of similar offending

a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.

Present appeal

[24]     In  support of his present appeal, the appellant  refers to the  decisions  of R v Richardson[4]   and  Tawhara  v  Police.[5]      Richardson  involved  a  sentencing  on charges of male assaults female, assault with intent to injure and threatening to kill. Here, the appellant punched his pregnant partner in the stomach, assaulted her in the same incident and threatened to kill her.   The couple’s 10 month old child was present at the time.  The victim was not seriously injured and this was the first time

the appellant had assaulted her.   The starting point was 12 months imprisonment converted  to  six  months  home  detention.    A 30%  reduction  was  made  for  the appellant’s young age at the time (19), his remorse, the fact that he was looking for work and that he had made a late guilty plea.  This made a total sentence of four months home detention, although the Court noted it would have imposed community work as well but the appellant was already completing a sentence of community work and doing well.

[4] R v Richardson [2012] NZHC 1465.

[5] Tawhara v Police HC Rotorua 30 June 2009, CRI-2009-463-44

[25]     The  Crown  submits  here,  and  I  accept,  that  whilst  some  aspects  of  the offending in Richardson were perhaps equally serious, such as the physical assault, there are differences between that case and the present situation which warrant a different outcome. These are:

(a)      The age of the offender in Richardson (19 at the time) given that the appellant here is 33 years of age.   This is a significant factor distinguishing Richardson from the present matter.

(b)The lack of any previous convictions for violence on the part of the offender in Richardson which was a case where it was the first time the appellant had retaliated physically to his partner.   This can be significantly contrasted with the case before me where Mr Cummings has a number of convictions for violent offending.

(c)      The number of victims.  In the present case, the victims include the appellant’s sister-in-law, who was the subject of the assault, the appellant’s three children who were the subject of the threat to kill, and indeed this whole incident would have had a significant effect on the appellant’s wife and possibly also the two children of his sister-in- law. These are factors not present in Richardson.

(d)The position of trust that the appellant had in the present case in respect of those victims who were his three children, the subject of the threat to kill.  This is a further factor which distinguishes the present case from Richardson.

[26]     The second case put forward by the appellant in support of his appeal is Tawhara.  In that case, the offender was sentenced to eight months imprisonment for male assaults female, threatening to injure and possession of an offensive weapon. Tawhara kicked and punched his partner to the ground, then repeatedly punched and kicked her body, arms, chest and head.   His step-mother lay herself over the complainant to protect her.   Tawhara left but returned days later, argued with his partner about the children and said words to the effect of “I’ll show you what a real hiding is”.

[27]     Four months later Tawhara arrived holding a tomahawk.  The pre-sentence report recommended community work and supervision.  On appeal, Heath J allowed the appeal, but only by a narrow margin, substituting nine months home detention and 200 hours community work for the earlier sentence of eight months imprisonment.

[28]     The  Tawhara  case  does  not  seem  to  refer  to  whether  the  offender  had previous  convictions.    Nor  does  it  refer  to  the  offender’s  age  or  go  into  any significant detail around the circumstances of the offending.  In these circumstances, and particularly given the lack of detail about previous offending, I take the view that Tawhara provides little assistance here in assessing whether it may be comparable to the appeal before me.

[29]     In addition, in Tawhara Heath J noted that the domestic violence there was relatively serious and, ordinarily, imprisonment would have been appropriate.  The factor that outweighed the ordinary sequence of events and the likelihood of imprisonment  was  the  rehabilitative  prospects  for  the  offender  which  supported home detention – Mr Tawhara had apparently made significant efforts to address his anger management problems.  And again, as I have noted above, the appeal there succeeded, but only by a narrow margin.

[30]     In the case before me Judge Turner, at paragraph [15] of his sentencing notes, concluded that the appellant was at medium risk of re-offending, due to his ongoing use of alcohol and his propensity for violence.   In addition, there were firearms (albeit a BB gun) present, and his sister-in-law, one of the victims, in particular, has expressed grave fears for her safety.

[31]     Under all the circumstances I am of the view that Tawhara does not support the appellant’s submission here that Judge Turner was plainly wrong to not commute the sentence to one of home detention in the present case.

[32]     What is apparent is that cases such as the present one highlight that the type of offending is extremely fact-specific.

[33]     That said, it is nevertheless useful, in my view, to consider a further decision, that of Uku v Police.[6]   There the appellant appealed against a sentence of two years’ imprisonment on charges of threatening to kill, male assaults female, breach of a protection order, and intimidation.  In that case the appellant was in a relationship with the victim.  There had been previous violence in that relationship.  On the night of the offending the intoxicated appellant came into the victim’s room and told her that he was going to kill her.  He continued to taunt her and when she turned to leave he pushed his right hand into her face, preventing her from leaving.  The victim left

the area with the appellant following and continuing to threaten her.

[6] Uku v Police HC Wellington CRI-2007-485-84 Ronald Young J, 26 September 2007.

[34]     The  District  Court  in  that  case  adopted  a  starting  point  of  two  years’

imprisonment, having regard to the fact that actual violence was used.  This took into

account the extent of harm to the victim (although she did not suffer any physical injuries, the offending had a psychological impact on her).

[35]     The  District  Court  Judge  uplifted  the  sentence  by one  year  to  take  into account the appellant’s previous convictions and discounted the sentence by one year to reflect the guilty plea.  The end sentence of two years imprisonment imposed was upheld by the High Court on appeal which found that the sentence was in the range available to the Judge.

[36]     Whilst it is true that the offending in Uku had a background which is not directly present in the current matter (in Uku there had been previous threats of violence and violence to the victim) the cases are nonetheless similar as:

(a)       In both cases the offenders were drunk.

(b)      The offending took place in domestic settings.

(c)       There was the use of violence and threats in both cases. (d)    Both offenders had previous convictions for violence.

[37]     In addition, it is useful to note here that the present appeal differs in the sense that  Uku  did  not  involve  more  than  one  victim,  nor  did  it  involve  unlawful possession of a firearm or resisting arrest.   And further, and generally, when the appellant delivered the threats to kill his three children, who were all shut in the house alone with him, he being quite drunk at the time and known to have a gun in his possession, he must have known the seriousness of that situation.  Clearly these aggravating features, which prompted an Armed Offenders Squad response, were taken into account by Judge Turner as he was entitled to do.

[38]     In   his   opposing   arguments   in   support   of   the   appeal   Mr Williamson acknowledged at the outset that the current offending was serious but not sufficiently serious by itself to rule out home detention, both by comparison to other cases and with respect to the principles of the Sentencing Act 2002 itself.  He contended also that by taking into account historical breaches of community work as a reason not to

grant home detention, Judge Turner, in the District Court, had failed to place appropriate weight on the appellant’s more recent compliance with community detention in 2008, his immediately prior compliance with electronically monitored bail, and the pre-sentence report-writer’s confidence that the appellant could comply with electronic restrictions.

[39]     Counsel also submitted that a number of personal factors relevant to the appellant supported a sentence of home detention here.  These included a claim that the appellant is the main support for his family and is seen by the Ministry of Social Development as being a positive influence for the family.  In addition, and given his background, the gap in the appellant’s offending over the last five years is said to be of  significance  and  to  indicate  rehabilitative  prospects  with  the  right  support. Mr Williamson contended that Judge Turner, in the District Court, failed to place sufficient weight on relevant considerations, one of these being this length of time between offending.   On this, he acknowledged that the appellant certainly has a pattern  of  criminal  offending  but  that  this  showed  a  cluster  of  offending  by Mr Cummings as a younger man, followed by increasing gaps in his offending as he got older.  Counsel also submitted that the pre-sentence report-writer recommended home detention and in terms of s 17 of the Sentencing Act 2002 the report-writer considered that Mr Cummings had a moderate/high likelihood of complying with an electronic sentence.

[40]     Mr Williamson also argued that sufficient weight had not been considered as to the effect of imprisonment on the appellant’s family including his wife, who is apparently under some stress, and his concern for her ability to look after their eight year  old  son  who,  it  is  suggested,  has  behavioural  difficulties.    In  addition, Mr Cummings,  I  am  told,  has  recently  made  certain  attempts  at  rehabilitation involving   attendance   at   a   stopping   violence   programme   and   at  Alcoholics Anonymous  meetings.    Mr Williamson  suggested  too  that  Judge Turner,  in  the District Court, placed too much weight on the “seriousness” of the present offending, and the appellant’s prior historical offending, without noting his compliance with recent sentences and the recent five year gap in his criminal history.

[41]     Whilst I acknowledge that there is something in these arguments advanced on behalf of the appellant here, it is my view that overall Judge Turner, in the District Court, did not err when he declined to sentence the appellant to home detention in this case.  I find that he was entitled to reach the conclusion that he did, given first the nature of the offending here which involved serious domestic violence offending, which ordinarily would warrant a sentence of imprisonment, the appellant’s previous convictions including a significant number for violence, and his earlier breaches of court sentences noted above.

[42]     In the District Court, Judge Turner did acknowledge, and presumably took into account, the five year gap in the appellant’s offending since 2008 (paragraph [8] of his sentencing notes) and clearly had in mind the possibility of home detention as an  alternative  sentence  to  imprisonment  in  considering  it  as  one  of  the  least restrictive forms of sentence available.   In doing so, Judge Turner perhaps took a stern view in assessing that imprisonment was necessary, rather than home detention, to respond adequately to the seriousness of the appellant’s offending, but, as noted in R v D at paragraph [6], his views, expressed from the jurisdiction in which crimes of this type are frequently tried, to some extent, in my view, must assume greater weight in choosing the sentencing response he did.

Conclusion

[43]     For the reasons outlined above, I am satisfied here that the appellant has not demonstrated that Judge Turner, in the District Court, in exercising his discretion to refuse home detention in this case, has erred.

[44]     The appeal before me will therefore be dismissed.

...................................................

D Gendall J

Solicitors:

Hewat Galt, P O Box 11, Invercargill

Preston Russell Law, P O Box 355, Invercargill