Downes v Police

[2016] NZHC 2580

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2016-454-34 [2016] NZHC 2580

BETWEEN

MAUI PHILIP DOWNES

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:

26 October 2016 via AVL

(Heard at Wellington)

Counsel:

D P OʼNeill for Appellant
MJR Blaschke for Respondent

Judgment:

28 October 2016

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

4 pm on the 28th day of October 2016

DOWNES v NEW ZEALAND POLICE [2016] NZHC 2580 [28 October 2016]

[1]      On 7 July 2016, after receiving a sentence indication, Mr Downes pleaded guilty to the following charges:

(a)      breaching community work;1

(b)      driving with excess breath alcohol;2 (c)      carelessly operating a vehicle;3 and (d)      assault with intent to injure.4

[2]     Judge Ross subsequently sentenced him (in accordance with the earlier indication) to 25 months’ imprisonment.5   Mr Downes now appeals that sentence on the grounds it was manifestly excessive.  He says that the starting point was too high, the uplift for previous offending was too high, and that a discount should have been given for mitigating personal factors.

Facts

[3]      In June 2015, Mr Downes was sentenced to 75 hours of community work on charges of behaving threateningly and wilful trespass.   He started his community work in July, and last reported in November.  Between July 1 and December 2, he failed to show up 14 times.  Overall, he completed 42.75 of the required hours.

[4]      On 5 January 2016, a member of the public called police to say Mr Downes’ vehicle was being driven erratically in Levin.  Police located him, and performed an evidential breath test.  His level was 576 micrograms of alcohol per litre of breath, over twice the legal limit.

[5]      On 12 February 2016, Mr Downes was driving on SH57 near Shannon, in a

100kmh zone.  He tried to overtake a truck where there was a bend in the road and

1      Sentencing Act 2002, s 71.

2      Land Transport Act 1998, s 56.

3      Land Transport Act 1998, s 37.

4      Crimes Act 1961, s 193.

5      Police and Corrections v Downes [2016] NZDC 13768.  He was convicted and discharged on the careless driving charge.

he could not see what lay beyond it.  A police car came over a rise and had to take evasive action to avoid colliding with him.  Mr Downes said that he had thought the road was straight.  He was also in breach of his learner’s licence because there was no supervising driver.

[6]      On 15 February 2016, Mr Downes and his then partner Ms Atarau were at Ms Atarau’s flat, drinking.   Mr Downes assaulted her over a period of over two hours, delivering at least several blows to the head.6   Ms Atarau’s flatmate heard the assault and reported it to the police.  Ms Atarau refused to be taken to hospital and was subsequently uncooperative.   Mr Downes told police she was drunk and fell over.  She was seen to have blood coming from her ear, swollen fingers on her right hand, a large wound above her eye and swelling to her face.

District Court

[7]      On  24  May 2016  Judge Ross  gave  a sentence  indication  of  25  months’ imprisonment, which included a guilty plea discount but took no account of personal mitigating factors.  In that latter respect His Honour stated:

[4]       … I am not told at this stage of other personal significant features, although I am conscious in this case that there are some for a note on the file points to some matters which are personal to the defendant and his brother and they may amount to personally mitigating factors which might reduce the revised starting point for the sentence even further and that might bring it into the home detention category.   I should not close that off as far as the defendant is concerned and the case might be regarded as marginal in any event in light of the absence of any prevarication from the defendant’s point of view in seeking a sentence indication which is effectively not only the charge as laid but there are other matters which are before the Court as well.  I am just conscious that depending on the matter, the way in which the matter had been played or the timing involved that the indication that has got to two years and  one  month  might  have  been  avoided  but  I would  certainly  be  seeking  an appendix and I have not fully heard from counsel as to other mitigating factors which  might  reduce  the  revised  start  point  further.    So  that  would  leave  open question of home detention about which I make no further comment at this stage.

[8]      Although the paragraph is a little hard to follow it does seem to suggest that the Judge was open to a subsequent discount based on personal mitigating factors, if

established.

6      Although at one point it seems he was in possession of a knife he was not charged with assault with a weapon.

[9]      The  PAC  report  that  was  subsequently prepared  was  relatively brief.    It recommended  imprisonment.     The  report  noted  Mr Downes’  extensive  list  of previous convictions (said to total 182) over a period of 32 years, including nine convictions for violent offending and six for domestic violence.7   The report records

that:

(a) (b)	“Most of the convictions were dealt with by way of imprisonment”;8 Mr Downes advised that he had been unable to attend community
work because his partner had died;
(c)	he minimised the events surrounding the assault;
(d)	his risk of reoffending was assessed as medium-high;
(e)	factors contributing to his offending were a propensity for violence, alcohol abuse and his “attitude”;
(f)	drug  and  alcohol  counselling  was  recommended  but  Mr Downes’ motivation to complete such a programme was assessed as low; and
(g)	Mr  Downes  had,  in  the  past,  reported  that  he  suffered  from schizophrenia but had not mentioned that to the report writer.
[10]	After	Mr Downes   had   accepted   the  indication   he  was   sentenced   by

Judge Ross on 20 July 2016.9    His Honour identified a starting point of 20 months for the assault.10   The culpability factors were that it was prolonged and serious, and that there was some coaching of the victim to say she fell over.   The Judge then

imposed uplifts of:

7      The vast majority of his offending involves low level dishonesty or drug offending, driving offences and offences involving non-compliance with Court and Police orders.

8      It is assumed that this comment was limited to Mr Downes’ convictions for violent offending;

9      Police v Downes [2016] NZDC 13768.

10     I record that Mr Blaschke advised that it appears that Mr Downes was originally charged with assault with intent to injure, which was then upgraded to injuring with intent to injure (although the charge notice still referred to the wrong section in the Crimes Act 1961).  The sentencing indication nonetheless proceeded on the basis that Mr Downes had been convicted of the lesser charge (assault with intent to injure).

(a)      two months for the fact Mr Downes was on community work and on bail for the driving charge at the time of the assault;

(b)a further three months for the drink-driving and community work breach charges; and

(c)      eight months for previous convictions.

[11]     The resulting sentence of 33 months’ imprisonment was then reduced by eight months for his guilty pleas (around 25 per cent).

[12]     As to personal mitigating factors, the Judge said:

[13]      I look[ed] carefully through the pre-sentence report in your case and listened to counsels’ submissions in respect of any other matters which might be in the category of personal mitigating features for which a further reduction would be made from a term of imprisonment for a period of two years and one month.

[14]     I have to say there is nothing to the extent that it ought to be taken into account that has arisen as a result of this, so that without there being any change to the position since the sentence indication was given, the sentence then would be two years and one month …

[13]     His Honour imposed a sentence of 25 months’ imprisonment accordingly.

The appeal

[14]     Mr O’Neill for Mr Downes submitted that:

(a)      The starting point of 20 months was too high because, while there were culpability factors of attacks to the head, prolonged attack and some victim vulnerability, it is difficult to be sure of the nature and duration of the attack considering the victim declined hospital treatment.  He said that, in some ways, the seriousness of the injuries “is already assumed by the charge.”   The victim was somewhat vulnerable but that should not be overstated – they had both been drinking and there had been no previous violence or protection orders.

A starting point at the lower end of band 2 of Nuku (18 months) was submitted to be appropriate.11

(b)The  uplift  for  previous  offending  was  too  great  because  although Mr Downes has previous convictions for violence, including violence against  intimate  partners,  the  eight  month  uplift  on  a  20  month starting  point  constitutes  an  uplift  of  40  per cent,  and  takes  the adjusted starting point nearly to the maximum penalty available of three  years.     Mr O’Neill  said  that  the  last  occasion  on  which Mr Downes had offended violently was in 2009.

(c)      A  discount  should  have  been  given  for  the  following  mitigating personal factors:

(i)       willingness to attend restorative justice,

(ii)an April 2016 letter from the Department of Correction confirming his successful completion of a drug and alcohol programme and noting his positive attitude and motivation to change;

(iii)     his mental health issues (mentioned in passing in the PAC

report); and

(iv)     his history of abuse in state care as a child.

(d)      As well, Mr O’Neill said that account should generally have been

taken of humanitarian factors which included:

(i)his long-term partner’s  death  in October 2015  after a long illness;

(ii)      his brother’s terminal cancer;12 and

11     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

12     His brother has, in fact, died since Mr Downes was sentenced.

(iii)     the recent birth of a baby with his new partner (who is not

Ms Atarau).

[15]     Mr Blaschke for the Crown submitted that while some aspects of the sentence could be considered stern, as a whole the sentence is not manifestly excessive.  But he also acknowledged that if at least two of the matters raised on Mr Downes’ behalf were found to have some force, the scales might tip in favour of allowing the appeal.

Discussion

[16]     As far as the starting point is concerned the judgment in Nuku makes it clear that it only directly applies as a guideline in relation to charges of injuring with intent to injure, causing grievous bodily harm with intent to injure, and aggravated wounding or injuring.13  The bands in Nuku are:14

(a)       Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

(b)       Band  two:  a  starting  point  of  up  to  three  years’ imprisonment  will  be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.15

(c)       Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

[17]     In Tamihana, the Court of Appeal held that the principles in  Nuku were helpful in relation to charges of assault with intent to injure, provided the lower

(three year) maximum penalty was borne in mind.16

13     Nuku v R, above n 11, at [37].

14 At [38].

15     R v Taueki [2005] 3 NZLR 372.

16     Tamihana v R [2015] NZCA 169 at [16].

[18]     In the present case the aggravating features of the assault on Ms Atarau were, as the learned Judge noted, the attacks to the head, its prolonged nature, and the vulnerability of the victim.  The first two were present to a high degree; the last to a moderate one.  Ms Atarau was, at the time, Mr Downes’ intimate partner, but he did not have a previous history of assaulting or otherwise abusing her.

[19]     In Tamihana, the Court of Appeal referred to previous cases where there had been one or two punches, perhaps one to the head, or one while the victim was on the ground and noted that starting points of 12 months had been appropriate.17   The offending here was more serious than that.   The injuries to Ms Atarau’s face and head were manifest.   The assault went on over a two hour period, and was bad enough  to  be  heard  by  the  flatmate  twice.    There  is,  as  well,  some  force  in Mr Blaschke’s submission that there is a mismatch between the lesser charge, and the nature of the assault and the injuries suffered.18    As against a statutory maximum of three years, 20 months is, as he said, stern, but not by itself manifestly excessive.

[20]     But I have more concern about the uplift for Mr Downes’ previous offending. As Mr Blaschke pointed out, the commentary to the Sentencing Act contained in Adams on Criminal Law states:19

…, the uplift should bear a reasonable relationship to the starting point that is appropriate for the circumstances of the present offending. On the one hand, uplifts of up to 25 per cent are common. For example, in Wilson v R, an uplift of nine months from a starting point of four and a half years’ imprisonment for burglary and receiving was regarded as appropriate to recognise the fact that the offender had 55 previous convictions (including

34 for dishonesty) and had committed the offences within two days after release from home detention. In Reedy v Police, an uplift of 37 per cent in the context of drug offending was reduced to 25 per cent for 17 prior drug- related convictions. On the other hand, uplifts have been held to be disproportionate when they have approached or exceeded the starting point for the offences for which the offender is being sentenced. For example, an uplift that effectively doubled the starting point was regarded as disproportionate in Blackmore v R; Kushell v Police; Wiringi v Police; and Edwards v Police. See too Julian and Manuel v Police, where uplifts amounting to 75 per cent and 66 per cent of the starting point were regarded as excessive.

17     See Tamihana, above n 16, at [20–[22].

18     See at n 10 above.

19     Simon France (ed) Adams on Criminal Law (online looseleaf ed) at [SA9.15(6)], citations omitted.

[21]     While the extent of Mr Downes’ previous offending cannot be denied, an uplift that is equivalent to 40 per cent of the starting point does give rise to a risk that Mr Downes is being punished twice.   While he does have a number of previous convictions for violent  offending, they span a 30  year period  and  appear to be relatively sporadic.   Moreover, approximately a third of those convictions did not result  in  sentences  of  imprisonment  at  all,  and  all  but  one  of  the  sentences  of

imprisonment were for less than a year.20    On a charge of wounding with intent to

cause grievous bodily harm in 2009, Mr Downes was sentenced to three and a half years’ imprisonment. The victim was a man, not Mr Downes’ intimate partner.

[22]     Further, in the six years since this, his most serious, conviction there has been little in the way of further offending and no offending involving actual violence.21

Mr Downes has not been in jail since 2012 so the absence of offending cannot be fairly said to be the result of his incarceration.  It seems that during that time, he has turned to the Christian Church for support22 although alcohol continues from time to time to override his new-found commitment. And although the PAC report noted his apparent lack of motivation to address his alcohol problem, that seems quite at odds with the very positive report from the Department of Corrections about the steps he

has recently taken in that regard.

[23]     In the above circumstances there is in my view grounds for concluding that the eight month uplift was too high.

[24]     I consider that that conclusion is underscored by certain of the mitigating factors that are personal to Mr Downes.  Although not mentioned in the PAC report there was a letter on the Court file from the Chief Executive of the Ministry of Social Development dated 29 February 2012 in which he:

(a)       acknowledged that Mr Downes experienced significant difficulties in the years he spent in State care at Epuni Boys Home during the 1980s;

20     I include both the “ordinary” and the domestic violence convictions in these figures.

21     There are two 2015 convictions for behaving threateningly, for which he was sentenced to community work.

22     There is a letter of support from a member of his Church who was also a teacher at his children’s

school.

(b)said that the staff at Epuni had failed him unacceptably and noted that a staff member had since been convicted for offending against him; and

(c)      apologised for these failures and referred to a settlement payment that had been made to Mr Downes in compensation for the assaults he had suffered.

[25]     Although there was no expert evidence on the point (and the issue was not explored at all by the PAC writer) it seems to me that there can be little room for debate that these matters have played some part in Mr Downes’ woeful criminal history.  The date of the Chief Executive’s letter necessarily means that the abuse he suffered as a child is unlikely to have been taken into account in the sentences he has previously received.   There must also be a question mark over whether any rehabilitative measures taken to date have focussed on the damage caused to him in this way.  The fact that Mr Downes was abused while in State care also suggests that he had good reason to be wary and disrespectful of State agencies and of authority, and perhaps even that incarceration as an adult in other State institutions may well present particular difficulties for him.   Importantly, there is precedent for giving a sentencing discount on account of such past abuse, even in the absence of the proof

or any formal acknowledgement by the Crown that exists in this case.23

[26]     And lastly, in terms of the separate uplift given by the Judge on the charge of breaching his recent sentence of community work, it must be relevant that during the latter part of that sentence Mr Downes’ long term partner (and mother of his twins, in whose care he was participating) was terminally ill and, indeed, died. While it seems that she returned to stay with her family for the last few months of her life it is impossible not to conclude that these events would have had an understandably negative impact on his compliance with that sentence.  Given those circumstances, and the fact that he completed half of the sentence, I would be unwilling to conclude that his historic unwillingness to yield to authority continues wholly unabated.

Conclusion

[27]     For the reasons given I consider that there was error in the Judge’s sentencing here, involving both too high an uplift for previous offending and failing to recognise the specific and quite unusual personal mitigating factors in Mr Downes’ case.   In light of that conclusion, the Court should conduct the sentencing exercise again to see if the end sentence was manifestly excessive.24

[28]     In my view the sentence should be constructed as follows:

(a)      a starting point of 20 months for assault (while noting that this is at the severe end of the available range);

(b)an uplift of two months to reflect that the offending occurred while Mr Downes was on bail and subject to a community work sentence (22);

(c)       an uplift of two months for other offences (24);

(d)      an uplift of six months for previous convictions (30);

(e)      discount of four months (between 12 and 15 per cent) for personal mitigating factors (26);

(f)       six month (23 per cent) discount for guilty pleas; yielding

(g)      an end sentence of 20 months’ imprisonment.

[29]     In the context of what was a 25 month sentence that constitutes a reduction of

20 per cent.  Such a reduction cannot be regarded as mere tinkering.  It necessarily shows the original sentence was manifestly excessive.

[30]     The   appeal   is   allowed   accordingly.      The   sentence   of   25   months’

imprisonment is quashed and a sentence of 20 months’ imprisonment is substituted.

Accordingly a sentence of home detention is, in principle, available.  The previous addresses  proposed  for  that  purpose  have  not,  however,  been  deemed  suitable. Mr O’Neill and Mr Blaschke were agreed that leave to apply should, instead, be granted.  I agree and so order.

“Rebecca Ellis J”

Solicitors:         Todd Whitehouse, Levin, for Appellant

Ben Vanderkolk & Associates, Palmerston North, for Respondent