Duff v Police

[2019] NZHC 3118

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-86

[2019] NZHC 3118

IN THE MATTER

of an appeal against conviction and sentence

BETWEEN

NEVILLE MARK DUFF

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

1 November 2019

Counsel:

EJ Forster for appellant

G Banuelos for respondent

Judgment:

28 November 2019

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 28 November 2019 at 3:00 pm.

Registrar/Deputy Registrar

Date………

Solicitors:           Gordon Pilditch, Rotorua To:           E Forster, Hastings

Duff v New Zealand Police [2019] NZHC 3118 [28 November 2019]

[1]Mr Duff pleaded guilty to the following charges:

(a)Burglary in February 2019;

(b)Disorderly behaviour and contravening a protection order on 17 May 2019;

(c)Trespass and assault on a person in a family relationship on 16 June 2019;

(d)Male assaults female and contravening a protection order on 17 June 2019;

(e)Driving dangerously, male assaults female, possession of an offensive weapon, speaking threateningly, wilful damage, and contravening a protection order on 23 June 2019.

[2]        He was sentenced by Judge Hollister-Jones to two years nine months’ imprisonment in relation to all the above charges.1 He now appeals that sentence as manifestly excessive.

[3]I first summarise the facts concerning Mr Duff’s offending.

Offending

Burglary

[4]        Mr Duff went to a local counselling office, broke the rear door to gain access, and took a 40-inch television from the wall. It was valued at approximately $1,000. While Mr Duff was there he made himself something to eat.

17 May 2019

[5]        Mr Duff’s partner and the two children he has with her have a protection order against him. On 16 May 2019, he went to the childcare centre where one of his

1      Police v Duff [2019] NZDC 1727.

children was being cared for and attempted to uplift his child, but was unsuccessful. The next day he returned. One of the staff members told him he was not permitted on the premises and asked him to leave. He then charged at the staff member yelling “I will come over there and smash your fucking face”, and lunged at her (although did not hit her). Mr Duff left after members of the public intervened, but returned briefly later that day to pace up and down the footpath outside.

16 June 2019

[6]        Mr Duff had been previously trespassed from his sister’s address. He nonetheless went to her address on 16 June 2019. Although she asked him to leave, he ignored her. Mr Duff became aggressive towards his sister, pushing her, then punching her in the ear and then the nose. He proceeded to punch her three to four more times to the head area with closed fists. She suffered minor injuries, including a bleeding nose.

17 June 2019

[7]As noted above, Mr Duff’s partner has a protection order against him.

[8]        Notwithstanding this, on 17 June 2019, he arrived unannounced at her address, took leftover food off the table, picked up their one-year old child, and walked out the front door. Mr Duff’s partner was upset by this and ran after him asking for the child to be returned. Mr Duff then turned towards her, threw the food at her, then punched her once to the left side of the head. The victim’s mother took the child from Mr Duff and asked him to leave. He became verbally abusive to members of the family but eventually left the address.

23 June 2019

[9]        Mr Duff’s partner was staying with a family member. Mr Duff arrived at the address and entered the room where his partner was sleeping with their children. He told his three-year old son he was “wasted”. When Mr Duff’s partner told him to leave, he punched her once to the left side of her head. She screamed for help and

attempted to call the Police, but Mr Duff pushed her against the wall, grabbed the phone, and smashed it. She ran next door to her aunt’s property for safety.

[10]      Mr Duff then pulled panels of the fence between the two properties and threw them at the aunt’s property. He also threw an empty bottle at the property, breaking a window. He then kicked the front door, causing damage to the lock.

[11]      Mr Duff then put his three-year old son in his vehicle and drove around doing skids and donuts. The aunt went to seek help and upon arriving back at the address, she was spotted by Mr Duff who drove straight at her. The car got stuck on the curb and stopped about five feet away from her. Mr Duff got out of the car, and asked her “where’s your partner I will waste him”. He then grabbed a knife from his car, threatened “I’ll fuck you up bitch” and spat in her face, before driving off.

District Court judgment

[12]      The District Court Judge acknowledged that given the number of incidents, “the sentencing exercise is not straightforward”.2 He referred to the multiple victims, and considered it particularly aggravating that there had been family violence offending in front of Mr Duff’s children.3 The Judge started with the burglary charge, imposing a start point of 12 months.

[13]      He considered the 16/17 May offending (the incident at the childcare centre) involved serious threats to the staff member, and “would have affected the whole day- care” as well as Mr Duff’s son.4 He considered a start point of six months was appropriate. Turning to the offending against Mr Duff’s sister on 16 June, he took a start point of eight months. He also took a start point of eight months for the offending against Mr Duff’s partner on 17 June, noting that while it was not of a serious nature it involved Mr Duff’s child and a breach of a protection order.

2      Police v Duff [2019] NZDC 1727 at [15].

3 At [11].

4 At [16].

[14]      The Judge then turned to the 23 June offending.5 He considered it was aggravated by the presence of multiple victims, the danger to Mr Duff’s child, and the serious potential harm involved in the use of a knife while Mr Duff was agitated. He recorded “there was a high potential for violence either from the motor vehicle or from the knife” and took a start point of 14 months.

[15]      The Judge considered the burglary, the day-care offending, and the 16 June offending against Mr Duff’s sister, were not connected, so sentencing for these should be on a cumulative basis. He considered the final two incidents, both involving his partner as a primary victim, and “a day apart”,6 should be considered on a concurrent basis. The Judge substituted the eight and 14 month sentences he otherwise would have imposed with a combined start point for 16 months, which he described as “a significant reduction, and effectively is the totality reduction”.7 This produced a total start point across all offending of 42 months, or three years six months’ imprisonment.

[16]      The Judge then uplifted this by four months to take into account Mr Duff’s previous offending. He noted in particular that Mr Duff had four prior convictions for assaulting his partner between 2015 and 2018, as well as an earlier history of violent offending and breach of protection orders.

[17]      The Judge nonetheless acknowledged Mr Duff’s letter of remorse, and provided a two-month discount, as well as a 25 per cent discount for guilty plea. This produced an end sentence of two years, nine months’ imprisonment.

Personal circumstances

[18]      Mr Duff is 41 years of age. He has over 50 previous convictions, involving a mixture of violence (including family violence), breaching protection orders and dishonesty offending. He has offended relatively consistently over the years and has received a number of previous sentences of imprisonment. Where there are gaps in

5      Although I note the Judge records this offending happened “the next day”, the summaries of facts record it was in fact about a week after the 17 June assault against his partner.

6      Again, it appears this was a misconception.

7      Police v Duff, above n 2, at [21].

the offending, at least some of that time will have been when Mr Duff has been in prison.

[19]      The summary of facts in relation to the 17 June 2019 offending notes there have been 23 previous family harm incidents between Mr Duff and his partner, the primary victim on that occasion.

[20]      Mr Duff denied aspects of the offending when interviewed by the Provision of Advice to Courts (PAC) report writer, in particular driving straight at his partner’s aunt. He also told the report writer he was under the influence of substances at the time of the offence.

[21]      The report records Mr Duff is involved in gangs (although had previously denied a gang affiliation), and opined his violence was driven by an impulsive nature and sense of entitlement. The report considers his risk of reoffending and harm is high given his extensive history of violent offending, including a propensity for violence against intimate partners.

Appellant submissions

[22]      The primary issue Mr Forster, counsel for Mr Duff, takes on appeal is the lack of an adequate reduction to consider the totality of the offending. The Judge only considered totality as between the two sets of offences against Mr Duff’s partner. Mr Forster submits that there should also have been a consideration of totality more generally.

[23]      Mr Forster suggests that all the offending, other than the burglary, warranted a start point of around 12 to 18 months’ imprisonment. He submits had the Judge considered totality, he likely would have uplifted only 12 months from the 12-month start point for the burglary charge, and applied only a three-month uplift for prior convictions. Applying a guilty plea discount, this would result in a sentence of 20 months’ imprisonment; significantly lower than the sentence the Judge arrived at.

Respondent submissions

[24]      Ms Banuelos for the Crown responds that whether the end sentence is manifestly excessive, rather than how it was constructed, is the crucial question on appeal. She submits a totality adjustment is not an automatic exercise and is only needed where the sum of the individual sentences is wholly out of proportion to the offending. Here, she accepts that the Judge did not (expressly) address totality overall, but says the Judge in fact adopted relatively generous start points for each set of offending, such that no adjustment beyond that already allowed for by the Judge was needed.

[25]      She highlights that the Judge effectively imposed a two year, six month sentence for the entirety of the offending other than the burglary, which considering it took place over four episodes, involved multiple victims, and a large number of charges, was justified. Ms Banuelos cites cases such as Hamilton v Police, where a start point of 12 months’ imprisonment was adopted for a single episode involving male assaults female and breach of a protection order offending. There, Mr Hamilton had pushed the victim into a wall.8 Ms Banuelos suggests the punching involved in the present case makes each of Mr Duff’s assaults more serious than in that case.

[26]      She further notes the four-month uplift for previous offending was relatively lenient in light of Mr Duff’s parlous criminal history, which includes 12 male assaults female convictions and 10 previous convictions for breaching protection orders.

Approach on appeal

[27]      Appeals against sentence are governed by s 250 of the Criminal Procedure Act 2011:

8      Hamilton v Police [2014] NZHC 2698. In this case, the appellant refused to leave the victim’s address, pulled apart her cell phone when she tried to call Police, and pushed her against the wall. The 12 months start point was arrived at through an eight month start point for the breach of protection order, then a four-month uplift for the assault.

250     First appeal court to determine appeal

(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)The first appeal court must allow the appeal if satisfied that—

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

(3)The first appeal court must dismiss the appeal in any other case.

[28]      An appeal will be successful only if the appellant can point to an error, either intrinsic to the Judge's reasoning, or because of additional material submitted on the appeal which vitiates the sentencing decision of the Court below.9 Unless there is a material error in sentence, for example, leading to a sentence that is manifestly excessive, manifestly inadequate, or wrong in principle, an appellate court will not intervene.10

Evaluation

[29]      I start by noting that when adopting an aggregate start point for the offending on 17 and 23 June 2019 of 16 months, rather than start points of eight and 14 months on each charge respectively, the Judge stated this is “effectively the totality reduction”. It is not clear whether the Judge meant this to be an assessment of totality across all the offending, or only as between the last two charges. For present purposes, I will proceed on the basis that it related to those two charges only, though this is perhaps somewhat generous to the appellant.

[30]      I now turn to consider whether the end sentence arrived at is manifestly excessive. I do so by assessing what sentences could properly have been imposed for the offending, to consider whether, even without assessing totality, the end sentence was outside the range available to the Judge.

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [29]-[31].

10     At [32]-[35].

[31]      I have preferred to adopt the offending on 23 June 2019 as the “lead” offending, it being the most serious in nature, despite the burglary charge attracting a longer maximum penalty.

[32]      The following cases provide some assistance in setting the start point for that offending:

(a)Goodman v R:11 Mr Goodman was convicted of assault with intent to injure and male assaults female. He had grabbed his partner around the throat and threw her across the room (the assault with intent). He then pushed her outside. On the porch he pushed her, then kicked her with such force she fell to the ground. The victim had a cut to the forehead, redness, and soreness. The District Court Judge took a start point of two years on the assault with intent, with an uplift of 12 months for the male assaults female charge. After adjustments for totality, the start point was 28 months. The Court of Appeal upheld the start point, agreeing it was a serious assault involving attacks to the head and neck and would have been frightening.

(b)Bolton v Police:12 This case involved two incidents of violence against the appellant’s partner (both male assaults female), several weeks apart. On the first, the appellant threw her against wall, held her by her throat, and punched her twice in the face. On the second, the appellant kicked the victim four times and smashed her property. The District Court Judge took a starting point of 15 months on first incident (after prior convictions and guilty plea, 14 months). On the second incident, the Judge took a starting point of 18 months (an aggravating feature of the second was the proximity to the first). Overall, the Judge opted for a cumulative sentence of 29 months, reduced by three months for totality. Gendall J upheld the sentence on appeal.

11     Goodman v R [2016] NZCA 64.

12     Bolton v Police [2016] NZHC 1297.

(c)Soper v Police:13 Mr Soper had just been released from prison for offending against same victim, his partner. He was convicted of common assault and male assaults female. During the first assault, Mr Soper straddled the victim, and pushed on her chest (she was injured at time). During the second assault, two days later, he straddled the victim and punched her in the face three times. The District Court adopted start points of 4 months on the common assault and 15 months on the male assaults female charge. The High Court allowed the appeal. The Court considered a start point of 12 months on the male assaults female charge was more appropriate, with a three-month uplift to reflect totality.

(d)Brewer J summarised the Court’s approach to male assaults female offending in Wati v R:14

[18] As to the male assaults female charges, I note there is no tariff for this offence. For single offences, a sentence of imprisonment can range from two months to 12 months' imprisonment. It is never easy to fix a starting point in cases involving domestic violence because the circumstances of cases vary so widely and sentencing Judges must work within a range available to them for multiple offences. In general, Courts have imposed sentences of around two to three years' imprisonment on charges involving domestic violence. One of the factors taken into account when fixing a starting point is the period over which the violence was inflicted.

[33]      Given the above, I consider a start point of around 16 months, if not more, would have been appropriate – this case is more serious than the assaults in Soper. I accept there is less violence than Goodman (as reflected in the fact Mr Duff’s most serious assault charge is male assaults female rather than assault with intent), and this offending relates to only one episode rather than the multiple episodes in Bolton. Nonetheless, Mr Duff punched his partner to the head, pushed her against a wall, and the offending gave rise to a greater potential for more serious harm, given Mr Duff drove a car directly at his partner’s aunt and had a knife. Also, the offending is aggravated by children being present, with one of them placed at particular risk by

13     Soper v Police [2014] NZHC 2536.

14     Wati v R [2015] NZHC 2064.

being in the vehicle during Mr Duff’s dangerous driving. It also occurred in the context of breaching a protection order. Viewed in this context, I consider the start point adopted by the Judge for the 23 June offending was, if anything, somewhat generous.

[34]      From a 16 month available start point, an uplift is warranted for the other episodes of domestic violence/protection order type offending. Although it is not necessarily wrong to impose cumulative sentences for each episode, I consider the offending is of a similar kind and part of a connected series of offences so as to warrant an uplift rather than separate cumulative sentences.15 In other words, it is part of a continued pattern of violence/intimidation against family members – although there are multiple victims, there is some crossover between the incidents (for example, a pattern of offending against his children on 17 May, 17 June, 23 June; similarly both the 17 June and 23 June offending involved Mr Duff’s partner and her extended family).

[35]      An uplift of 12 months is appropriate to cover the remainder of the violence offending. While this may seem stern, I note all the offending occurred in breach of a Court order (whether a protection order or a trespass order). The 16 June offending (against Mr Duff’s sister) involved repeated punches to the head.

[36]      There is no issue taken on the appeal with the 12 month cumulative sentence for the burglary.

[37]      Taking  a start point of 16 months on the 23 June offending, uplifting by     12 months for the other violence offending, then adding a 12 month cumulative sentence for burglary, produces a start point of 40 months, or three years four months’ imprisonment.

[38]      Turning then to consider totality, a small reduction may be warranted to ensure that the cumulative burglary sentence does not produce a total period of imprisonment out of all proportion to the gravity of the overall offending.16 In my view, any such

15     Sentencing Act 2002, s 84.

16     Section 85(2).

reduction should be relatively limited, because in fixing a 12 month uplift for the balance of the offending (i.e. other than that on 23 June), some allowance for totality has already been made. A reduction of three months would have been appropriate. This brings the sentence to three years, one month.

[39]      Once he had fixed the start point, the Judge uplifted the sentence by four months to reflect previous convictions, and then discounted by two months for remorse. I do not consider these inappropriate (particularly given Mr Duff’s extensive history of similar offending), and a separate discount for remorse could be argued to be generous. By applying this uplift and discount, a sentence of three years, three months’ imprisonment is reached. Applying a 25 per cent guilty plea discount (rounded up to 10 months) produces an end sentence of 29 months’ imprisonment, or two years, five months.

[40]      Standing back and looking at this sentence against the overall offending, I consider this appropriate. A much lesser sentence (approaching the territory in which home detention could be considered), as argued for by Mr Forster, would in my view, be inadequate. Putting aside the burglary, the remaining offending demonstrates a disturbing pattern of offending by Mr Duff against family members, and in particular his partner, a willingness to involve his children in that offending, and a disregard for court orders.

[41]      I nonetheless record the comments by Mr Duff recorded in the PAC report that he wants to try to address the causes of his offending, which appears to include substance abuse, gives some hope for his rehabilitative prospects. Presumably Mr Duff will be willing and able to attend any relevant programmes while he is serving his sentence.

Result

[42]      While the end sentence I have arrived at is not very significantly less than that adopted by the Judge, it is more than what might be considered “tinkering”.

[43]      The appeal is accordingly allowed. The sentence of two years, nine months’ imprisonment is quashed, and replaced with a sentence of two years, five months’ imprisonment. This is to be allocated across the various charges as follows:

(a)On the 23 June offending:

(i)On the breach of protection order charge, one year, nine months’ imprisonment;

(ii)On the male assaults female charge, eight months’ imprisonment, to be served concurrently;

(iii)On the possession of an offensive weapon charge, six months’ imprisonment, to be served concurrently;

(iv)On the wilful damage charge, one month imprisonment, to be served concurrently; and

(v)On the driving dangerously charge, one month imprisonment, to be served concurrently. Mr Duff is disqualified from holding or obtaining a driver license for 6 months.

(b)On the 17 June offending:

(i)On the breach of protection order charge, eight months’ imprisonment, to be served concurrently; and

(ii)On the male assaults female charge, six months’ imprisonment, to be served concurrently.

(c)On the 16 June offending:

(i)On the assault on a person in a family relationship charge, eight months’ imprisonment, to be served concurrently; and

(ii)On the wilful trespass charge, one month imprisonment, to be served concurrently.

(d)On the 17 May breach of protection order charge, six months’ imprisonment, to be served concurrently.

(e)On the burglary charge, eight months’ imprisonment, to be served cumulatively.

Fitzgerald J