Davies v Police
[2019] NZHC 2984
•15 November 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-319
[2019] NZHC 2984
BETWEEN TARQUIN DAVIES
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 November 2019 Appearances:
N Baier for the Appellant
D Becker for the Respondent
Judgment:
15 November 2019
JUDGMENT OF GORDON J
This judgment was delivered by me on 15 November 2019 at 1.00 pm
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Auckland
Public Defence Service, Auckland
DAVIES v POLICE [2019] NZHC 2984 [15 November 2019]
Introduction
[1] The appellant, Tarquin Davies, breached a protection order on two occasions. On the second occasion, he was on bail for the first breach. He pleaded guilty to eight charges arising out of the events on those two occasions.
[2] On 12 July 2019, Mr Davies, was sentenced to two years and two months’ imprisonment by Judge Collins in the Auckland District Court on the following charges:1
(a)contravention of a protection order (x2);2
(b)wilful damage (x3);3
(c)common assault;4 and
(d)failing to answer District Court bail (x2).5
[3] Mr Davies now appeals that sentence on the basis that the sentence was manifestly excessive on the grounds that:
(a)the starting point was disproportionate and inconsistent with similar offending;
(b)there was insufficient adjustment to reflect the principle of totality;
(c)the uplift for relevant previous convictions was excessive; and
(d)insufficient credit was given for mitigating factors.
1 Police v Davies [2019] NZDC 13668.
2 Domestic Violence Act 1995, ss 19(1)(c), 49(1)(a) and 49(3). Maximum penalty: three years’ imprisonment.
3 Summary Offences Act 1981, s 11(1)(a). Maximum penalty: three months’ imprisonment or a fine not exceeding $2,000.
4 Section 9. Maximum penalty: six months’ imprisonment or a fine not exceeding $4,000.
5 Bail Act 2000, s 38. Maximum penalty: one year’s imprisonment or a fine not exceeding $2,000.
Background
[4] On 2 February 2017, a final protection order was issued against Mr Davies in favour of the victim, his former partner.
[5]The charges relate to two separate sets of offending.
[6] First, on 8 July 2018, Mr Davies arrived at the victim’s home address with his brother. An argument broke out between Mr Davies and the victim. Mr Davies grabbed the victim’s cell phone and threw it against the concrete driveway five times repeatedly, causing the phone to smash. Mr Davies grabbed the victim by the arm and started to pull her up the road against her will. He released the victim and she returned to her house. Mr Davies followed her, entering into the victim’s property in an attempt to locate her. The victim asked Mr Davies to leave; he refused. The victim then ran into the bathroom of the house and locked herself inside for protection.
[7] This event resulted in three charges: contravention of a protection order, common assault and wilful damage.
[8] Secondly, on 24 November 2018, the victim and her new partner were asleep in the victim’s bedroom. Mr Davies arrived at the victim’s address at about 4.30 am. He approached the victim’s bedroom window and punched it, causing glass to shatter over the victim’s bedroom. As he was leaving the address, Mr Davies smashed the windscreen, driver-side window and wingmirror of a motor vehicle belonging to the victim’s new partner.
[9] This event occurred while Mr Davies was on bail for the offending on 8 July 2018 and resulted in two charges of wilful damage and one charge of breach of a protection order.
District Court
[10] On 12 July 2019, Mr Davies appeared before the District Court for sentencing. The Judge considered that the two charges of contravention of a protection order were the lead charges for sentencing.6
[11] The Judge adopted a starting point of 12 months’ imprisonment for the first set of offending,7 and a starting point (or uplift) for the second set of offending of 18 months’ imprisonment.8 The Judge then made an adjustment to reflect the totality of the offending, adjusting the end starting point from 30 months to 27 months’ imprisonment.9
[12] An uplift of six months was adopted to reflect Mr Davies’ relevant previous convictions, including offending against the same victim.10 There was a further uplift of two months for Mr Davies’ failure to answer bail (being one month for each failure).11
[13]This resulted in an end global starting point of 35 months’ imprisonment.12
[14] From that global starting point, the Judge allowed a discount of three months to reflect the time spent on restrictive bail conditions, and then a further six months to reflect the entry of early guilty pleas.13
[15]The end sentence was two years and two months’ imprisonment.
Approach to appeals against sentence
[16] An appeal against sentence is an appeal against a discretion. The first appeal court must only allow the appeal if satisfied that:14
6 Police v Davies [2019] NZDC 13668 at [8].
7 At [9].
8 At [10].
9 At [10].
10 At [11].
11 At [11].
12 At [12].
13 At [13].
14 Criminal Procedure Act 2011, s 250(2).
(a)there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[17] Thus, the appeal court “does not just start afresh or simply substitute its own opinion for that of the original sentence”.15 In assessing whether an alleged error is of the requisite character, it will be helpful to consider whether the error is material.16 This will involve establishing that the sentence is manifestly excessive or wrong in principle or that there are exceptional circumstances.17 Despite s 250 of the Criminal Procedure Act 2011 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.18 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.19
[18] The focus is on the end sentence rather than the process adopted to reach the end sentence.20 If the end sentence is within range, an appeal court will not tinker with it, unless there are exceptional circumstances such an arithmetical error.
Was there an error in the sentence?
[19] First, I consider whether there was an error in the sentence imposed. Such errors may include where the sentence was inappropriate in the particular case or where the sentence involved an error of law or principle.21 I consider each of the four grounds of appeal under this first part. Secondly, if there was an error, was that error significant? In other words, should another sentence have been imposed — was the sentence manifestly excessive or otherwise not justified by the relevant sentencing principles?22
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
16 At [30].
17 At [31].
18 At [33]–[35].
19 At [33] and [35].
20 At [36]; and Ripia v R [2011] NZCA 101 at [15].
21 See Simon France (ed) Adams on Criminal Law — Procedure (online looseleaf ed, Thomson Reuters) at [CPA250.01].
22 Ripia v R [2011] NZCA 101 at [15].
Starting point disproportionate and inconsistent with similar offending?
[20] Ms Baier, for Mr Davies, submits that the global starting point of 30 months’ imprisonment taken for two sets of offending was too high in the circumstances. She submits, with reference to similar cases, that the global starting point for both sets of offending should each have been within the range of 12 to 16 months’ imprisonment.
[21] There is no tariff case for offending of this type. Sentences for breaches of protection orders vary to a large extent and comparing one case to another is difficult, given the offending is always highly contextual.23
[22] While acknowledging those propositions, Ms Baier refers the Court to three cases, which she submits are factually similar.24 Each of those cases, like the present case, involved two sets of incidents. The first incident involved the offender visiting the victim’s house, getting into an argument with the victim, being asked to leave by the victim and refusing to leave. The second incident involved the offender, while on bail for the first incident, returning to the victim’s house and a further argument breaking out. The starting points were: eight months for each set of offending, served cumulatively;25 15 months for each set of offending, served concurrently;26 and four months for the first incident and an uplift of two months for the second incident.27
[23]A summary of each of those cases is as follows:
(a)Mataiti v Police: The appellant pleaded guilty to two charges of breach of a protection order and one charge of wilful damage. The breaches arose out of two separate incidents on 10 October 2013 and 20 March 2014. On the first occasion, Mr Mataiti was at the victim’s house. The victim went inside for a cigarette; Mr Mataiti followed, demanding a cigarette as well. She refused. They argued. Mr Mataiti was asked to leave; he refused. Instead, he went inside the house and slammed the
23 Jackson v Police [2019] NZHC 281 at [41].
24 Mataiti v Police [2014] NZHC 1675; Crean v Police [2015] NZHC 3203; and Reid v Police [2015] NZHC 299.
25 Mataiti v Police [2014] NZHC 1675.
26 Crean v Police [2015] NZHC 3203.
27 Reid v Police [2015] NZHC 299.
door. Again, the victim told him to leave; he refused. The victim went to call the Police in the bathroom. Mr Mataiti followed her, yelled at her and hit the door, causing a hole. He left when the victim called the Police. On the second occasion, Mr Mataiti was on bail for the first incident. He arrived at the victim’s home; she agreed that they would go and watch their son’s rugby game together. When they returned home, a heated argument ensued. Mr Mataiti refused to leave and pushed the victim. She pushed back. The neighbours called the Police.
On appeal, this Court upheld Mr Mataiti’s sentence of eight months for each set of offending, to be served cumulatively. With a 25 per cent discount, the end sentence was 12 months’ imprisonment.
(b)Crean v Police: The appellant pleaded guilty to two charges of breach of a protection order and one charge of breach of release conditions. The first breach involved Mr Crean consuming alcohol with the victim at the victim’s home. The two began to argue. The victim asked Mr Crean to leave; he refused. The victim left the address and called the Police. Mr Crean was found hiding under the victim’s bed. The second breach, which occurred nine days later, similarly involved Mr Crean drinking alcohol with the victim at her house. Again, he refused to leave despite being asked to. He then began following the victim when she started walking down the road. They continued to argue, and the victim told Mr Crean to go away. The victim ultimately locked herself in a public toilet and waited for the Police.
On appeal, this Court considered the appropriate starting point was that of 15 months’ imprisonment for each charge, to be served concurrently.
(c)Reid v Police: The appellant pleaded guilty to two charges of breach of release conditions and one charge of breach of a protection order. There were two incidents. First, on 28 July 2014, Mr Reid went to the victim’s house. He had been released on release conditions three months prior, which included a condition not to associate with the
victim, his former partner. He remained at her house for around 24 hours. The next day, they got into an argument. As she went to use her phone, Mr Reid grabbed it and threw it against the wall, causing it to break. As the victim was unable to call the Police, she ran out of the house. Mr Reid chased her. Secondly, when Mr Reid was on bail for the first set of charges, he returned to the victim’s house and remained there for around three days. A number of incidents occurred during this time leading to further charges being laid, including breach of a protection order.
On appeal, this Court considered that an appropriate starting point was that of four months’ imprisonment for the first incident and an uplift of two months to reflect the subsequent offending.
[24] Ms Baier accepts that the present case is more serious in that there are more charges, including that of common assault. Accordingly, she submits that a slightly higher starting point is justified in this case, namely a global starting point of 12 to 16 months’ imprisonment for the two sets of offences.
[25] In reply, the Crown submits that, in assessing the gravity of the offending, the Court must be guided by the specific objectives of the Domestic Violence Act 1995. This includes ensuring that there is effective legal protection for victims as well as sanctions and enforcement when there are breaches.28
[26] The Crown also refers to a number of cases.29 In relation to the first breach, The Crown refers the Court to Mitchell v R (2015).30 In that case, the Court of Appeal considered that an eight month starting point was at the top of the range for protection order breaches involving four voice messages that the appellant had recorded on the complainant’s voicemail inbox.
28 Domestic Violence Act 1995, ss 5(1)(b) and 5(2)(e).
29 Mitchell v R [2015] NZCA 442; Cooke v Police [2014] NZHC 3224; Wiringi v Police [2014] NZHC 3214; Mitchell v R [2013] NZCA 583; and Iyer v Police [2017] NZHC 353.
30 Mitchell v R [2015] NZCA 442.
[27] In Cooke v Police, the appellant breached four protection orders in relation to two victims.31 He went to the house of the first victim. He drove down her driveway and spoke to her. She called for her husband to come outside. There was a conversation between the parties. The appellant was asked to leave. The victim went inside. The appellant remained for a further five minutes. The Police were called. The judgment refers to the victim impact statement in which it is stated that the victim lived in fear of the appellant.
[28] In that case, in relation to the second victim, over a period of a month, the appellant contacted her by phone on several occasions. On one occasion, he contacted the victim’s son by phone and said he was going to get his friends in the “Heads” to visit her. The obvious inference is that was a reference to the Head Hunter gang. A starting point of nine months’ imprisonment was taken for the three breaches against the second victim and uplifted by a further six months for the breach against the first victim. The sentence was upheld on appeal. (I note that the maximum penalty at the relevant time was two years’ imprisonment).
[29] In Wiringi v Police, the appellant’s partner had obtained a final protection order against the appellant just over three months before the offending occurred.32 The appellant and the victim were both at an address which apparently they shared. The appellant returned home extremely intoxicated; she asked him to leave due to his aggressive behaviour. He became angry and punched the wall and yelled at her abusively. He refused to leave, and she became frightened. He pulled a number of posters from the wall. She continually asked him to leave. He refused and yelled, “You just get the fucking police”. She ran to a neighbour’s address. When the Police arrived, he was still at the address. The High Court considered the appropriate starting point to be six months’ imprisonment.
[30] The Crown submits that the first breach is more serious than (the 2015) Mitchell and the offending in relation to the first victim in Cooke, where starting points of eight and nine months respectively were adopted, and also more serious than Wiringi.
31 Cooke v Police [2014] NZHC 3224.
32 Wiringi v Police [2013] HZHC 3214 (another pre-amendment case).
[31] The Crown submits that an 18 month starting point for the second incident is comparable to Mitchell v R (2013).33 That case involved Ms Mitchell leaving two abusive phone messages an hour before she arrived at the victim’s house close to midnight. She brought a tyre iron and proceeded to walk around the house, smashing most of the accessible windows. She smashed a large glass panel on the front door which allowed her to enter the house. Once inside, she threatened the victim. The Court of Appeal confirmed a starting point of 18 months.
[32] However, it is notable that in the five years since the protection order had been obtained, there had been nine previous breaches. The Court referred to the appellant’s conduct over the five and a half years in which the protection order had been in place as “extraordinary”.34 The Court stated that:
[14] We start with our assessment of the culpability of the breach of protection order. We consider that a starting point of 18 months’ imprisonment was warranted, despite its proximity to the maximum term of two years [now three years]. We take that view because this was a wilful and terrorising breach of the protection order, made the more serious because it was the latest in a continuing pattern, and committed in the face of a stern judicial warning
… that Ms Mitchell’s offending against the victims had reached a serious head. This was, in terms of s 8(d) of the Sentencing Act, a most serious case of its type, warranting that proximity.
(footnotes omitted)
[33] As is apparent from the passage quoted above, the 18 month starting point was adopted and approved at a time when the maximum penalty was two years.
[34] The Crown also relies on Iyer v Police, where this Court considered that a starting point of 30 months was warranted for a single breach of a protection order.35 There, Mr Iyer arrived at the victim’s home uninvited in the very early hours of the morning. He appeared intoxicated. Despite being told repeatedly to leave, he entered the house. He insisted on talking to the victim despite her protestations. Mr Iyer picked up a stereo from inside the house and threw it out the door onto the lawn, causing it to break. The victim’s son was awoken. The victim then called the Police. The victim heard a banging noise outside and discovered that her car windscreen had
33 Mitchell v R [2013] NZCA 583.
34 At [13].
35 Iyer v Police [2017] NZHC 353.
been smashed. In upholding the 30 month starting point, the Court noted that this was Mr Iyer’s sixth breach of the protection order in relation to the victim and his seventeenth breach of a protection order since 1997.
[35] In my view, the cases of (the 2013) Mitchell and Iyer cited by the Crown are distinguishable. When sentencing for breach of a protection order, the courts have confirmed that prior convictions for breaching protection orders are integral to the assessment of the gravity of the index offending.36 That is evident in the courts’ reasoning in both Mitchell and Iyer. But here, Mr Davies had no previous convictions for breach of a protection order.
[36] In the present case, the key features of the offending on 8 July 2018 were, first, a degree of premeditation with Mr Davies arriving at the victim’s home with his brother. Then there was threatening and intimidating behaviour together with destruction of property and actual violence. After smashing the victim’s cell phone, when the victim went inside her home, Mr Davies followed her in.
[37] In relation to the offending on 24 November 2018, there was again an element of premeditation. Mr Davies went to the victim’s home, this time at around 4.30 am. On this occasion, Mr Davies was on bail for the earlier offence committed on 8 July 2018. While there is always an element of vulnerability inherent in a victim being classified as a protected person under a protection order, by arriving at 4.30 am when the victim and her partner were asleep in bed and in smashing the bedroom window, I consider this gives rise to an added element of vulnerability on the part of the victim. On this occasion, there was also threatening and intimidating behaviour and destruction of property.
[38] Taking the two sets of offending together, I consider that the offending is more serious than Mataiti, Crean, and Reid. However, I consider that the Judge, in adding the starting points for both sets of offending together (12 months and 18 months), arrived at a global starting point which was too high (even taking into account the three months reduction), which resulted in a sentence which was manifestly excessive.
36 Jackson v Police [2019] NZHC 281 at [43]; Carlon v Police [2017] NZHC 2526 at [20];
Crean v Police [2015] NZHC 3203 at [16]; and Mitchell v R [2013] NZCA 583 at [12].
[39] Section 85 of the Sentencing Act 2002 provides for the principle of totality. If cumulative sentences are imposed, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.37 If concurrent sentences are imposed, the most serious must receive the penalty that is appropriate for the totality of the offending.38 Ultimately, when sentencing for several offences, the court must not only consider each offence individually, but must also assess the offender’s overall culpability and determine the appropriate sentence for the totality of the offending.39
[40] Section 84 of the Sentencing Act provides guidance on the use of cumulative and concurrent sentences of imprisonment:
(1)Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2)Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3)In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a)the time at which they occurred; or
(b)the overall nature of the offending; or
(c)any other relationship between the offences that the court considers relevant.
[41] Whilst the two sets of offending are separated by around four and a half months, in my view, the overall nature of the offending is of a related kind. They are both breaches against a protection order, the victim is the same and the breaches are of a similar kind, namely Mr Davies visiting the victim’s house. Concurrent sentences are therefore appropriate.
[42] I take the second breach of the protection order as the lead offence, having regard to the fact that it was committed while Mr Davies was on bail as referred to
37 Sentencing Act 2002, s 85(2).
38 Section 85(4).
39 R v Bradley [1979] 2 NZLR 262 (CA).
above and having regard to the other conduct on that occasion. In my view, having considered the cases the Court has been referred to, a preliminary starting point of 16 months’ imprisonment for the second breach is appropriate in the circumstances.
[43] I would impose an uplift of three months’ imprisonment to reflect the first breach on 8 July 2018, resulting in a starting point of 19 months’ imprisonment.
Insufficient adjustment to reflect the principle of totality?
[44] Ms Baier submits that the 10 per cent, or three month, adjustment downwards to reflect the totality of the offending was insufficient. She also submits that, should this Court consider that the proper approach is the imposition of concurrent sentences, then a discount for totality may not be required as it would have already been taken into account when determining the starting point.
[45]That is the approach I have adopted.
Excessive uplifts for relevant previous convictions?
[46] The sentencing Judge gave an uplift of six months for Mr Davies’ relevant previous convictions against the same victim for:
(a)assault with a blunt instrument (13 October 2017);
(b)common assault (13 October 2017); and
(c)male assaults female (13 October 2017).
[47] Ms Baier submits that the uplift is excessive. She submits that, whilst the previous convictions are relevant, as the Court of Appeal has stated, uplifts should not be imposed as a matter of course or where there is a risk of double punishment.40 She submits that an uplift in the range of two to four months is appropriate.
40 Beckham v R [2012] NZCA 173 at [84].
[48] In Crean v Police, Brewer J, considering the sentence afresh on appeal, took into account the offender’s previous convictions for breaching protection orders in setting the starting point. He then proceeded to give a further uplift of four months for the offender’s other relevant previous convictions, including three previous convictions for male assaults female, one for common assault and another for failure to answer bail.41 Also, this Court in Reid v Police adopted an uplift of two months for Mr Reid’s previous convictions, which included assaulting his partner, breaching the protection order and offending while on bail.42
[49] In this case, whilst Mr Davies does not have a previous conviction for breach of a protection order, he does have a conviction in October 2017 for common assault, male assault female and assault with a weapon against the victim and a conviction in 2016 for wilful damage to property of the victim.43 An uplift was therefore appropriate. It is the amount of uplift that is in issue.
[50] The Crown accepts that a six month uplift was excessive. I also agree, having regard to the two cases referred to in [48] above. Four months is appropriate.
Insufficient credit for mitigating factors?
[51] Ms Baier submits that insufficient credit was given for the mitigating factors of reparation made and Mr Davies’ prospects of rehabilitation. She submits that a discount of five to 10 per cent should be given for reparation (indicating remorse) and that a discount for rehabilitation “may” be warranted.
[52] First, as to reparation, Mr Baier says that prior to sentencing, Mr Davies paid to the victim the cost of her damaged cell phone.
[53] Section 9(2)(f) of the Sentencing Act provides that the court must take into account any remorse shown by the offender or anything described in s 10 of the Act. Section 10(1)(a) provides that the court must take into account any offer of amends,
41 Crean v Police [2015] NZHC 3203 at [21].
42 Reid v Police [2015] NZHC 299 at [13].
43 Police v Davies [2019] NZDC 13668 at [6].
whether financial or by means of the performance of any work or service made by, or on behalf of, the offender to the victim.
[54] Genuine remorse is a mitigating factor and warrants a discount separate from the guilty plea.44 The voluntary making of reparation may be material evidence of remorse.45 However, reparation is likely to be given significant weight only to the extent that it represents a genuine effort by the offender to accept responsibility for the offence and put things right.46 The Judge must be satisfied of the genuineness of the remorse.
[55] The Provision of Advice to the Court (PAC report) provided for sentencing does not address the issue of remorse (either the presence of or lack of). As to the cell phone, the PAC report records Mr Davies’ claim that he had paid reparation for the damaged cell phone but goes on to say this was not verified.
[56]There is a letter dated 6 October 2018 written by the complainant which states:
Tarquin has now paid me back the full cost of my phone which was given through his brother …
[57] I consider little or no reliance can be placed on that statement as, in the previous sentence, the complainant said:
Tarquin Davies did not assault me and that [sic] I do not feel threatened by him.
[58] As is already apparent from this judgment, Mr Davies pleaded guilty to the assault charge. In all those circumstances, I do not consider the Judge made an error in not giving a discount for remorse.
[59] Secondly, as to rehabilitation, Mr Davies is 23 years old. The Court of Appeal has recognised that young people have greater capacity for rehabilitation.47 The
44 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64]; and Williams v R [2012] NZCA 176. See also s 9(2)(f) of the Sentencing Act 2002.
45 See s 10(1)(a) of the Sentencing Act 2002.
46 R v Singh (2003) 20 CRNZ 158 (CA).
47 Churchward v R [2011] NZCA 531 at [77].
sentencing Judge did in fact consider Mr Davie’s prospects of rehabilitation. The Judge commented that:
[14] … It gives me absolutely no joy sending a man of 23 to prison but at your age and the offending that you have committed in the past leaves me no doubt that that is the appropriate outcome. There is no discount today for youth because you have well and truly expended the credit for that. … [And] previous rehabilitative sentences did nothing to deter you from offending. …
(emphasis added)
[60] Mr Davies has previously been sentenced to community work, supervision, intensive supervision, community detention and home detention. I consider that, given Mr Davies previous offending, it cannot be said that the sentencing Judge erred in not giving credit for Mr Davies’ prospect for rehabilitation (and/or his youth).
[61] Since sentencing, Mr Davies has been offered a place at Mana Atua Charitable Trust, a 24-hour curfew residential care facility, which is in partnership with the “Man Up” programme. There is a letter of 18 October 2019 from the Mana Atua Charitable Trust attaching details of the programme. In summary, the programme is said to offer a supportive, safe and healthy environment for offenders who have chosen to better themselves by taking responsibility for their past actions. Conditions of entry into the residential recovery include a minimum stay of four months.
[62] I am prepared to accept the information about the Trust and the offer of a place at the Trust as fresh evidence on appeal.48
[63] The PAC report refers to the key factors as contributing to Mr Davies’ current offending are:
… his use of alcohol, relationship difficulties, propensity for violence and offending supportive attitude presented as his poor problem solving skills and lack of consequential thinking. He acknowledged the assessment and admitted to being under the influence of alcohol at the time of the offending [which] occurred in Henderson and his on-going relationship issue with the victim. At the interview, he expressed his intention to cease all alcohol use and agreed to engage in any programmes to prevent him from further offending.
48 See Criminal Procedure Act 2011, s 335.
[64] In the absence of the new information, now available to this Court, and with the background of Mr Davies’ continuing offending against the victim, it is understandable that the District Court Judge did not place any weight on Mr Davies protestations or promises as recorded in the PAC report and accordingly gave him no credit for rehabilitative prospects.
[65] With the further information now available to this Court, on appeal, I consider that a minor allowance of one month should be given for rehabilitative prospects.
Restrictive bail conditions
[66] The sentencing Judge gave a discount of three months for time spent on restrictive bail terms. Mr Davies did not dispute that on appeal.
[67] However, Mr Becker, for the Crown, submits that if the Court were of the view that reparation and rehabilitation do warrant a credit, then any such credit is balanced by the fact that Mr Davies received a discount of three months for restrictive bail conditions. Mr Becker correctly points out that any sentencing credit is derived through compliance with those bail conditions rather than simply their imposition and that the Court of Appeal has declined to recognise the impact of restrictive or EM bail conditions where the offender has a record of a breach.49
[68] I accept that the discount of three months was generous, but it was within the Judge’s discretion to give such a discount. Additionally, I propose to make only a minor adjustment by way of credit for rehabilitative prospects.
Result
[69] A preliminary starting point of 16 months’ imprisonment for the second breach of protection order is appropriate.
[70] An uplift of three months’ imprisonment, to reflect the first breach on 8 July 2018, results in a starting point of 19 months imprisonment.
49 R v Bidois [2009] NZCA 426 at [11]–[15] and [18]–[19].
[71] The further two months uplift given for the two failures to answer bail was not disputed. This bring the sentence to a sentence of 21 months’ imprisonment.
[72] Consistent with the decision of Crean v Police, I would give an uplift of four months imprisonment for the previous convictions for offences committed against the victim. This results in a sentence of 25 months’ imprisonment.
[73] A modest discount of one month’s imprisonment for prospects of rehabilitation is warranted, resulting in a sentence of 24 months’ imprisonment.
[74] The discount of three months’ imprisonment for restrictive bail conditions remains. That brings the sentence to one of 21 months’ imprisonment.
[75] The discount for guilty pleas was not disputed on appeal. The Judge applied a six month discount for that purpose. Six months as a percentage of 32 months (the sentence imposed in the District Court after taking into account all personal mitigating factors) is approximately 20 per cent. Applying a 20 per cent discount to 21 months’ imprisonment results in a five month discount (rounded up in Mr Davies’ favour), bringing the end sentence to one of 16 months’ imprisonment.
[76] The sentence of two years and two months’ imprisonment is quashed, and a sentence of 16 months’ imprisonment is substituted for breaching the protection order on 24 November 2018.
[77] The sentences on the other charges are also quashed and the following sentences are substituted: for the earlier breach of protection order on 8 July 2018, a concurrent sentence of nine months’ imprisonment; for male assaults female, a concurrent sentence of two months’ imprisonment; for intentional damage of the iPhone, one month’s imprisonment; for intentional damage of the vehicle one month’s imprisonment; for intentional damage of the bedroom window, one month’s imprisonment; reparation $200; and one month’s imprisonment on each of the two charges of failing to answer court bail — all concurrent.
Home Detention
[78] A sentence of home detention is therefore available. Ms Baier seeks leave for a sentence of home detention to be substituted. The proposed address is different from the address which had previously been proposed and which was assessed as suitable in the PAC report. Ms Baier submitted that in the event that this Court were to allow the appeal the appropriate course would be for the matter to be remitted to the District Court for the sentencing Judge to consider whether a sentence of home detention should be substituted.
[79] I therefore remit this matter to the District Court for the sentencing Judge to consider whether a sentence of home detention should be substituted.
[80] For that purpose I direct a probation officer to prepare a further pre-sentence report in accordance with s 26A(2) of the Sentencing Act.
Gordon J
16
0