Douglas v The Queen

[2021] NZHC 1823

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-0273

[2021] NZHC 1823

BETWEEN

LIAM ROBERT JAMES DOUGLAS

Appellant

AND

THE QUEEN

Respondent

Hearing:	19 July 2021
Appearances:	C G Farquhar for the appellant B N Kirkpatrick for the Crown
Judgment:	19 July 2021

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

C G Farquhar, Barrister, Auckland Meredith Connell, Auckland

DOUGLAS v R [2021] NZHC 1823 [19 July 2021]

[1]    Liam Douglas appeals his sentence of four months’ community detention and 24 months’ intensive supervision, imposed by Judge N R Dawson in the District Court at Auckland on 27 May 2021,1 on Mr Douglas’ guilty pleas to charges each of contravening a protection order,2 and assaulting a person in a family relationship.3

Background

[2]    The victim is Mr Douglas’ former partner. After arguing with her at her Auckland apartment the previous day, Mr Douglas returned in the morning of Monday, 6 April 2020, to stand over her while she was sleeping and punch her in her right eye. On so waking her, he yelled and swore at her. She left the room to check on the couple’s two children living with her. In trying to close the door to their son’s room, Mr Douglas pushed her and punched her forehead. Mr Douglas then banged his own head repeatedly on the kitchen table, blaming his former partner for those injuries, and left the apartment.

Decision under appeal

[3]    The Judge noted Mr Douglas’ prior convictions against his former partner, resulting in a sentence of community work and supervision, and various sentencing reports.4 Identifying sentencing purposes of accountability, denunciation and rehabilitation,5 the Judge found Mr Douglas’ offending was aggravated by his attack to the victim’s head, in the place she lived with their children, to cause physical harm to a “particularly vulnerable” victim.6 He considered there was “a medium level of premeditation” to the offending, Mr Douglas attending the address to inflict violence.7

[4]    The Judge gave Mr Douglas a 20 per cent discount for his guilty pleas, and credited him with his remorse and “entirely self-motivated” “considerable rehabilitation”,8 against a background of anger management issues and an abusive and

1      R v Douglas [2021] NZDC 11706.

2      Family Violence Act 2018, s 112(1)(a) (maximum sentence: three years’ imprisonment).

3      Crimes Act 1961, s 194A (maximum sentence: two years’ imprisonment).

4      R v Douglas, above n 1, at [5]–[6].

5      At [7]–[8].

6      At [9]–[10].

7 At [11].

8 At [12].

culturally dislocated childhood. From a starting point of 12 months’ imprisonment, uplifted to 15 months on account of Mr Douglas’ history of offending against the same victim, the Judge discounted by 20 per cent for guilty pleas, 15 per cent for his background, and 10 per cent for his remorse, insight and rehabilitation to calculate eight months’ imprisonment.9

[5]    The Judge then considered Mr Douglas’ six weeks’ remand met sentencing’s deterrent and denunciation factors,10 preferring four months’ community detention to reflect Mr Douglas’ employment and rehabilitative steps.11 To reinforce continuation of the latter, he added 24 months’ intensive supervision, noting Mr Douglas “needed extra time” by reason of his background and the effort required to rehabilitate him.12

[6]    On appeal, for Mr Douglas, Claire Farquhar argues the Judge failed to consider Mr Douglas’ year on electronically-monitored (“EM”) bail,13 which should have attracted a further discount in the region of five months’ imprisonment. Thus the end sentence would only have been of three months’ imprisonment, and the positive aspects of Mr Douglas’ rehabilitation then addressed by a sentence of intensive supervision alone.

Approach to appeals against sentence

[7]    I must allow the appeal only if I am satisfied both there is error in the sentence, and a different sentence should be imposed.14 In any other case, I must dismiss the appeal.15 The approach previously taken by courts on sentencing appeals continues to apply;16 the measure of error is the sentence be “manifestly excessive” — the principle is “well-engrained” in this Court’s approach to sentencing appeals.17 I will not intervene where the sentence is within a range properly justified by accepted

9 At [16].

10 At [17].

11 At [18].

12 At [19].

13     Sentencing Act 2002, s 9(2)(h) and (3A).

14     Criminal Procedure Act 2011, s 250(2).

15     Section 250(3).

16     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

17     At [33] and [35].

sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.18

Discussion

[8]    No issue is taken with the Judge’s 12-month starting point, three-month uplift or 45 per cent discounts, all of which separately and together appear well within range, if toward its lower bound.19 Of particular materiality is the family violence context for Mr Douglas’ continued offending against the same victim and, at the same time,    Mr Douglas’ welcome if belated  insight  into  its  causes  and  avoidance.  There  is a delicate balance to be achieved between punishing Mr Douglas’ recidivist offending while not discouraging his prospective redemption.

[9]    Certainly the Judge was bound to take into account as a further mitigating factor Mr Douglas’ time on bail with an EM condition,20 and its duration, relative restriction and compliance.21 Mr Douglas’ compliance with its original 24-hour curfew enabled its variation during its latter half to attend work and childcare, and reduction to a 12-hour curfew. Balancing duration and compliance with progressively relatively lesser restrictions,22 the term of imprisonment could ‘modestly’ have been reduced by three to four months.23 So an end custodial sentence of four to five months’ imprisonment was in prospect.

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

19 See, for example, Anderson v R [2016] NZCA 346 (starting point: 15 months’ imprisonment); Mitchell v R [2016] NZCA 299 (starting point: 12 months’ imprisonment); Mitchell v R [2013] NZCA 583 (starting point: 18 months’ imprisonment); Campbell v Police [2019] NZHC 3447 (starting point: 19 months’ imprisonment); Waterman v Police [2016] NZHC 247 (starting point: 18 months’ imprisonment); Crean v Police [2015] NZHC 3203 (starting point: 15 months’ imprisonment); Tetau v Police [2015] NZHC 1284 (starting point: two years’ imprisonment); Woods v Police [2015] NZHC 305 (starting point: 18 months’ imprisonment); Cooke v Police [2014] NZHC 3224 (starting point: 18 months’ imprisonment); Narayan v Police [2014] NZHC 1243; and Beck v Police [2014] NZHC 931 (starting point: 15 months’ imprisonment).

20 Sentencing Act, s 9(2)(h); Tanuvasa v R [2019] NZCA 217 at [26]; Chea v R [2016] NZCA 207 at [111]; and R (CA528/16) v R [2017] NZCA 210 at [14].

21 Section 9(3A).

22 R v Tamou [2008] NZCA 88 at [19]; Keown v R [2010] NZCA 492 at [12]; Rangi v R [2014] NZCA 524 at [10]; Chea v R, above n 20, at [109]; and Parata v R [2017] NZCA 48 at [10].

23 Tanuvasa v R, above n 20, at [28]; Parata v R, above n 22, at [12] and [15]; R (CA528/16) v R, above n 20, at [14]; Chea v R, above n 20, at [109] and [111]; Keown v R [2010] NZCA 492 at [15]–[16]. Although “[a]n allowance of up to 50 per cent of the time spent on EM bail is not uncommon” — Hall v R [2020] NZCA 183 at [37], citing Parata v R, above n 22, at [12] and [15]; Wharrie v R [2019] NZHC 633 at [28]; A (CA90/2017) v R [2017] NZCA 278 at [89]–[91]; Huata v R [2017] NZHC 2833 at [30]; and R (CA528/2016) v R, above n 20, at [14] — a review of those cases illustrates discounts down to 30 per cent also are within the usual range.

[10]   Doubtless with regard for sentencing’s hierarchy,24 the Judge chose the materially less restrictive community-based sentences of intensive supervision and community detention. As such, the guilty plea discount could be disregarded, and the duration of the sentence determined by reference to what was required for rehabilitation.25 Instead of taking account of time on EM bail to reduce the custodial term, it could have been a factor supporting the Judge’s choice and duration of ultimate sentence.26

[11]   Sentencing should never be, and in coming to these sorts of value judgments cannot be, a purely arithmetical exercise, as Ms Farquhar acknowledges. Assessed against a notional sentence of 11 months’ imprisonment (by disregarding the guilty plea discount there), and Mr Douglas’ clear rehabilitative needs, the Judge’s end sentence cannot be said “manifestly excessive”.

Result

[12]The appeal is dismissed.

—Jagose J

24     Sentencing Act, s 10A.

25     R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 at [53].

26     Ropiha v R [2013] NZCA 60 at [26]; Te Aho v R [2013] NZCA 47 at [17]; R v Edwards [2008] NZCA 205 at [15].