Cunnard v Police

[2019] NZHC 2944

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2019-476-000022

[2019] NZHC 2944

BETWEEN

BLAKE PAUL CUNNARD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 October 2019
Appearances:	H V Bennett for the Appellant K C Beazley for the Respondent
Judgment:	12 November 2019

JUDGMENT OF NATION J

Introduction

[1]    On 7 August 2019, Mr Cunnard was sentenced in the District Court on charges of impedes breathing, assault on person in family relationship and wilful damage. Judge Farish sentenced Mr Cunnard to five months’ home detention with special conditions to attend a non-violence programme, probation approved treatment in particular drug and alcohol treatment and non-association with the victim.

[2]Mr Cunnard appeals that sentence.

Facts

[3]    Mr Cunnard was aged 32. In January 2019, he had been in a relationship with the victim for some months. She had two young children.

CUNNARD v POLICE [2019] NZHC 2944 [12 November 2019]

[4]    The victim was at Mr Cunnard’s address. At 11.00 pm on 5 January 2019, she woke to him standing over her, holding her phone and yelling at her. He placed her in a headlock, causing her to lose consciousness. As she lay unconscious, he punched her several times in the head. When she tried to call the Police, Mr Cunnard pushed her hard, resulting in her falling backwards, hitting her head and elbow. He snatched her phone from her and threw it on the floor, smashing it. The victim was taken by ambulance to Timaru Hospital. She had bruises and swelling to her face and arms.

[5]    Mr Cunnard was charged with impeding breathing, assault on person in a family relationship and wilful damage.

[6]    Mr Cunnard sought and accepted a sentence indication by Judge Roberts on 1 April 2019 in the Timaru District Court. There, the Judge noted Mr Cunnard's low level of ability to comply with a community-based sentence. His Honour said the offending was committed against a backdrop where Mr Cunnard was already sentenced for other offending and he had not completed or engaged with that sentence.

[7]    The Judge adopted a starting point of eight months' imprisonment. He gave an uplift of two months for the aggravating features of offending whilst subject to sentence. From that, he gave a discount of two months for an early guilty plea.

[8]    His Honour indicated that the end sentence could be converted to either home detention or community detention (coupled with supervision and community work), depending on the recommendations set out in the pre-sentence report.

[9]    Before sentencing, further charges were laid against Mr Cunnard in relation to the same complainant, relating to events arising on 20 April 2019. They were two charges of strangulation and assault on a person in family relationship. Mr Cunnard entered not guilty pleas and was awaiting a Judge-alone trial on the charges.

[10]   On 5 August 2019, Mr Cunnard appeared in the Timaru District Court in front of Judge Farish on an opposed bail application following a breach of bail. Her Honour issued a Minute in relation to the events in Court. That minute explained that:

(a)   The victim had been seeking to have the charges withdrawn against Mr Cunnard for some time, claiming she had made a false complaint (in relation to the further charges).

(b)     Mr Cunnard previously had his bail varied by Judge Kellar to allow him to reside at his parents' address in Timaru on the understanding the complainant was residing in Kaikoura.

(c)   In the interim, the victim returned to Timaru to resume her relationship with Mr Cunnard and they were seen together at a local supermarket with the victim's two young children. This gave rise to the breach of bail for which Mr Cunnard was appearing in Court.

(d)     Judge Farish was prepared to bail Mr Cunnard if the victim was going to return to Kaikoura, but the victim informed Her Honour that she was now living in Waimate. She asserted her view to Her Honour that she had made a false complaint and wanted to be with Mr Cunnard.

[11]   Her Honour remanded Mr Cunnard in custody to 7 August 2019 to allow Police time to consider the matter further, given the victim's stance in relation to the upcoming Judge-alone trial on the further charges.

[12]    Upon remanding Mr Cunnard in custody, the Judge recorded that the victim rushed from the public area into the dock and would not release Mr Cunnard. The victim was told several times to release him, but she would not. Mr Cunnard was crying and the children of the victim were in their pram witnessing the events. The Judge noted that the concerning issue was the welfare of the children in the situation.

District Court decision

[13]    At the sentencing hearing on 7 August 2019, Judge Farish explained that the victim and Mr Cunnard were in an unhealthy relationship. She said that the sentence would give them some time apart to de-escalate the intensity of their relationship and give Mr Cunnard the ability to deal with some of his problems. She explained it also gave the victim time to think. The Judge was concerned for the wellbeing of the children and the real harm caused by growing up in a home with domestic violence.

[14]   On that basis, the Judge advised that she would be imposing a special condition of non-association between Mr Cunnard and the victim.

[15]   The Judge sentenced Mr Cunnard to five months’ home detention with the special condition of non-association with the victim (without prior written approval from a probation officer), and other special conditions of a non-violence programme and a treatment programme for a further six months.

Principles on appeal

[16]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower Court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.2 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached.”4

[17]   The ability to impose conditions on sentences of home detention is provided in s 80D Sentencing Act 2002.5 Those conditions may be imposed where:6

(a)there is a significant risk of further offending by the offender; and

(b)standard conditions alone would not adequately reduce the risk; and

(c)   the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.

1      Criminal Procedure Act 2011, ss 250(2) and 250(3).

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

3      Ripia v R [2011] NZCA 101 at [15].

4      Skipper v R [2011] NZCA 250 at [28].

5      Sentencing Act 2002, s 80D.

6      Sentencing Act 2002, s 80D(2).

[18]The special conditions include:7

(a)   any conditions that the court thinks fit relating to the offender's finances or earnings:

(b)   conditions requiring the offender to take prescription medication:

(c)   conditions relating to a programme:

(ca) conditions prohibiting the offender from doing 1 or more of the following:

(i)using (as defined in section 4(1)) a controlled drug:

(ii)using a psychoactive substance:

(iii)consuming alcohol:

(d)   a condition requiring the offender to comply with the requirements of judicial monitoring under subpart 2B as directed by a probation officer or the sentencing Judge:

(e)   any other conditions that the court thinks fit to reduce the likelihood of further offending by the offender.

[19]   The condition must be rationally connected to the purposes set out in subs (2). In Hughes v R, a condition that the offender not associate with her husband during the home detention sentence was quashed, because the need for it had not been articulated by the sentencing Judge and was not required to reduce the risk of reoffending.8

[20]   R v Riri, a case under s 80D, also provides guidance for this Court. There, the Court said that what can be regarded as an “unusual condition” could be imposed because there was a “significant risk of re-offending but for this special condition”.9 Riri stresses the importance for the sentencing court to explicitly link the imposition of conditions to a general aim of imposing such a condition. In the absence of explicit reasoning from the sentencing court as to why a condition is being imposed and specifically linking those reasons to the relevant aims, appellate courts will have greater difficulty rationalising the imposition of such conditions. Indeed, where the sentencing court fails to give reasons for special conditions, the appellate court cannot satisfy itself that the sentencing court directed its mind to the question.

7      Sentencing Act 2002, s 80D(4).

8      Hughes v R [2015] NZHC 2181

9      R v Riri [2008] NZCA 441 at [17]

Submissions

Appellant’s submissions

[21]   Mr Cunnard submits that Judge Farish did not consider the wishes of the victim in imposing the special condition that he not associate with or contact the victim for six months. The victim had addressed the Judge and said she wanted to continue her relationship with Mr Cunnard. She had similarly told police that the complaint was false and that she had advised the Police of this, but they did not believe her.

[22]   Mr Cunnard says that s 17 New Zealand Bill of Rights 1990 applies in that a non-association condition breaches his right of freedom of association.

[23]   Counsel submits that the appropriate response to the victim's expressed views at the sentencing exercise was to not impose a restriction upon the defendant's association with the victim. Counsel submits an alternative condition that would properly observe the right of both Mr Cunnard and the victim to associate with each other, especially in light of the express intention that the relationship continue, would have been that Mr Cunnard not offer violence to the victim.

[24]   Before me, counsel advised that the Police were no longer proceeding with the further charges Mr Cunnard faced when he was being sentenced.

Analysis

[25]   In relation to Mr Cunnard’s argument that his right to freedom of association is being breached, I note that rights under the New Zealand Bill of Rights Act are subject to such limits as may be demonstrably justified in a free and democratic society.

[26]   I broadly agree with submissions for the respondent that, here, there was a justified limitation rationally connected to the purposes set out in s 80D(2). The respondent submits that, under s 80D(2), there was an obvious risk of reoffending against the victim. At the time of sentencing, Mr Cunnard was awaiting trial on further and highly similar charges against the same victim.

[27]   Little weight could be attached to the victim’s statement that she had lied to the Police. Mr Cunnard had acknowledged the earlier offending with his guilty plea.

[28]   I find that standard conditions alone would not adequately reduce the risk. Standard conditions cannot address the principal risks associated with a relationship characterised by domestic violence. Mr Cunnard had already breached the non- association condition of his bail by associating with the victim. Standard conditions would be unable to reduce the risk of further similar offending.

[29]   The victim did not want a non-association order imposed. The views of the victim, while relevant, were not determinative. The Court in Sterjov v Police summarised the relevance of victims’ views in domestic violence cases as follows:10

It is regrettably common in domestic violence cases for victims to ask for leniency in respect of their abusers. It is well-established that this desire does not diminish the Courts’ responsibility to protect the public interest by holding offenders to account for domestic violence, particularly as a victim’s reluctance is often a result of mental conditioning resulting from the very abuse to which they have been exposed.

[30]   The non-association condition would reduce the likelihood of further offending by Mr Cunnard and assist in rehabilitation. As Judge Farish found, Mr Cunnard needed time apart from the victim in order to address the underlying issues that manifest themselves as violence against a family member. It would also allow the victim time to address her issues and focus on the care of her children. Continued contact (or uncontrolled contact) with the victim would prevent achievement of those purposes of sentencing.  The Judge explicitly gave this as the reason for the sentence.

[31]   I find the non-association conditions were and are rationally connected to reducing the risk of offending. As I have explained above, in the present case, there was justification for limiting Mr Cunnard’s right to free association in the circumstances. The Judge was not saying that the victim must have no relationship with Mr Cunnard at any time in the future. She was permitted to have contact with him but only if approved by Corrections. There was thus the opportunity for them to have the potential to meet and talk about their relationship and the risks that would

10     Sterjov v Police [2015] NZHC 3103 at [40].

exist for both of them, and for them and others to assess how those risks might have been reduced through Mr Cunnard’s involvement in a non-violence programme and treatment programme.

Conclusion

[32]    I do not find the sentence with the conditions imposed to be manifestly excessive.

[33]The appeal is dismissed.

Solicitors:

Gresson Dorman & Co., Timaru K C Beazley, Barrister, Timaru.