Gardner v Police

[2020] NZHC 2169

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2020-454-14

[2020] NZHC 2169

MATTHEW LANCE GARDNER

v

NEW ZEALAND POLICE

Hearing:

25 August 2020

Appearances:

G M Stone for the Appellant

D R Davies and T Bagnall for the Respondent

Judgment:

25 August 2020

JUDGMENT OF COOKE J

[1]        Mr Gardner was sentenced to two years and three and a half months’ imprisonment in respect of a range of violent offences:1

(a)Two charges of assault on a person in a family relationship,2

(b)Assault on a child,3

(c)Three charges of wilful damage,4 and

1      New Zealand Police v Gardner [2020] NZDC 11639.

2      Crimes Act 1961, s 194A, maximum penalty two years’ imprisonment.

3      Section 194(a), maximum penalty two years’ imprisonment.

4      Summary Offences Act 1981, s 11(1)(a), maximum penalty three months’ imprisonment or $2,000 fine.

GARDNER v NEW ZEALAND POLICE [2020] NZHC 2169 [25 August 2020]

(d)One charge of intimidation.5

[2]        Mr Gardner appeals his sentence on the grounds the starting point was too high, and that credit should have been given for remorse and time spent on electronically monitored bail.

Factual background

[3]        The primary victim is the appellant’s ex-partner. The two had been in a relationship for approximately one year and had lived together at an address in Palmerston North along with the victim’s three children aged 4, 7 and 9. The victim was pregnant at the time of the offending.

[4]        The first set of offending occurred in October 2019. At around 7.30 pm on Saturday 5 October 2019 Mr Gardner was an address in Palmerston North. Also present was the victim and her three young children. Mr Gardner and the victim began arguing over relationship issues and the use of a vehicle at the address. The victim took the keys for the vehicle and hid them in an attempt to prevent Mr Gardner from driving after consuming alcohol.

[5]        Mr Gardner became upset that the victim had hidden the keys and followed her around the house. He snatched her phone from her hands and smashed the phone against a wall. The victim attempted to pick up the phone but Mr Gardner pushed her onto a bed. She repeatedly attempted to stand up but he continually pushed her back onto the bed. Mr Gardner pinned her arms down and yelled at her to return the keys. She told him to let her go and attempted to push him off her. As he did this he punched her in the left thigh.

[6]        Mr Gardner then proceeded to repeatedly kick the victim’s daughter’s bedroom door. This caused the child the wake up and begin crying. The victim went into the bedroom to console her daughter but was followed by Mr Gardner, who continued to yell at her to give her back her keys. He told her to leave and shortly after she left on foot with her children and notified police after arriving at a family member’s address.

5      Section 21(1)(a), maximum penalty three months’ imprisonment or $2,000 fine.

[7]        As a result of the assault the victim suffered swelling, bruising and scratches to her arms and legs and bruising to her toe.

[8]        The second set of offending occurred the following month. At around 8 pm on Friday 8 November 2019 Mr Gardner was at the victim’s home address. Mr Gardner was intoxicated and began talking about harming himself. He spoke about trying to cut himself with a piece of broken oil wax burner. He punched the kitchen cupboard door, leaving a hole.

[9]        At around 1 pm the next day Mr Gardner was drinking at the victim’s address while she was out. She returned to the home address and confronted him about his drinking. Mr Gardner yelled at the victim about it being her fault that he was drunk. The victim then tried to retrieve her belongings from the bedroom so she could leave the address. He then shut her bedroom door, preventing her from leaving. She asked him to move but he refused. She attempted to climb out the window but Mr Gardner came up behind her and closed it. She succeeded in pushing out the window, climbed out and ran to the back of the address. In response Mr Gardner kicked the bedroom window causing it to smash.

[10]      The victim returned to the house to get her belongings. He grabbed her by the arms and walked to her bedroom, despite her wrestling with him to stop. A neighbour then came to the address and took the victim away. Mr Gardner continued to smash items at the address, creating a hole in a kitchen cupboard and smashing the side door window.

[11]The victim received two small grazes from the incident.

[12]      The third, and most serious, set of offending occurred in January 2020 while Mr Gardner was on bail. At around 8 pm on Wednesday 29 January 2020 Mr Gardner went to the victim’s address in Palmerston North, despite having active bail conditions not to be there. Her three children were present in the house at the time. By this time the victim was 38 weeks’ pregnant.

[13]      An argument started between Mr Gardner and the victim. Mr Gardner then pushed the victim into a hot water closet. The argument escalated and he punched the

victim three times in the chest and head with a closed fist. He pushed her to the floor and held her there with an arm across her throat with enough pressure for her to become frightened that he would choke her. He then got up off the floor and kicked her in the stomach.

[14]      The argument continued, with both parties yelling at each other. Mr Gardner again approached the victim and held her with a hand around his throat. The argument woke the children who came out of their rooms. Mr Gardner started to yell at the nine year old victim, telling him to go back to his room. Mr Gardner followed him into the bedroom and placed a blanket over the child’s head, punching him three times around the head area with a closed fist.

[15]      As a result the victim received bruising and minor lacerations to her neck area as well as bruising to her arms and chest. She was required to go to hospital to check on the condition of her pregnancy. The nine year old victim received a minor laceration to the inside of his lower lip.

Decision under appeal

[16]      The Judge noted she had taken into account the pre-sentence report, summary of facts and the victim impact statements.6 The Judge determined the lead charge was the offending in January against the victim and her son. She considered the assault on the child was very serious and called for a cumulative sentence as it was separate from the offence on the primary victim.7

[17]      The Judge adopted a starting point of 14 months’ imprisonment on the lead charge of assault against the primary victim. She did so as there were a number of aggravating factors: intimidation, punches to the head, and the fact that Mr Gardner was on bail at the time. The assault on the child also had a number of aggravating features given his age, and the abuse of trust. For that assault a starting point of 12 months’ imprisonment was taken, cumulative on the first assault charge. The Judge then uplifted by two months to recognise there was a breach of bail twice in a short period and offending against the same victim. Whilst the Judge said she was uplifting

6      New Zealand Police v Gardner, above n 1, at [2].

7 At [6].

by two months for offending on bail, the actual uplift she gave was four months. Whilst that might have involved two months for each offence, that is not the uplift she explained. After 25 per cent discount for guilty plea, that amounted to an end sentence of one year, 11 months’ imprisonment.

[18]      Turning to the other charges, the Judge determined a total of six months imprisonment cumulative on the assault charges was appropriate, but after 25 per cent discount that amounted to an effective three and a half month uplift. Added to the lead charge that resulted in an end sentence of two years and three and a half months’ imprisonment.

[19]      Finally, the Judge noted that home detention was unavailable but even if it had been, Mr Gardner was not an appropriate candidate for home detention and the totality of the offending required a full time custodial sentence.

Approach to appeal

[20]      This is a first appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250, the 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.

[21]      A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court re-exercise the discretion.8 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.9 An appeal court should not engage in mere “tinkering”.10 The Court of Appeal has accepted, however that there may be cases where “what has

8      B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].

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

10 Bull v Police [2019] NZHC 1720 at [21]; Ripia v R [2011] NZCA 101 at [15]; Knedler v Commissioner of  Inland  Revenue [2017]  NZHC  2888; (2017)  28  NZTC  23-044 at  [16];  and Larkin v Ministry of Social Development [2015] NZHC 680 at [26].

gone wrong as such as to require correction albeit the sentence imposed is within range”.11

Analysis

[22]      Mr Stone for the appellant submits the total effective starting point of 26 months’ imprisonment was out of step with similar authorities. Mr Stone submits the total starting point on the lead charges should have been in the range of 15 to 18 months’ imprisonment, with an uplift of no more than three months to recognise the breach of bail.

[23]      Mr Stone further submits the lead charge of assault on a person should attract a starting point of twelve months’ imprisonment. There were no lasting injuries and the references to the harm caused to the victim’s unborn child should carry little weight where there is no expert evidence of the harm referred to.

[24]      In my view the Judge’s assessment of the starting point on this charge was within range. The offending was prolonged and involved a number of aggravating factors:

(a)The offending involved violence in the home, a place where the victim and her family should have been safe. As the Court of Appeal recently emphasised, violence in the home in itself is an aggravating factor due to the inherent vulnerability of the victim and breach of intangible trust.12

(b)The victim was also made particularly vulnerable due to the late stages of her pregnancy. Her other young children were also present at the home at the time of the offending — realistically there was no way the victim could run or escape.

(c)While the attack did not result in lasting injuries, the mental distress would have been significant. In the course of the assault Mr Gardner

11     Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].

12     Solicitor-General v Hutchison [2018] NZCA 162, [2018] 1 NZLR 420 at [27].

held his arm across her throat with enough pressure to make her think he would choke her — I agree with the District Court Judge that this type of assault is designed to inflict fear and intimidation. There was no serious injury but there was the potential for it given the assault involved several punches to the chest and head. The kick to the stomach can be regarded as having particular potential to cause serious harm given the victim was in the late stages of pregnancy.

[25]      I accept that there is a potential difficulty with taking into account actual harm to the unborn child in the absence of any medical or other expert evidence.13 The Judge was concerned that the mother’s adrenaline rush could have harmed the brain of the unborn child. That may well be a valid concern, but it does not arise specifically from the kick to the stomach, and may well arise for all offending against pregnant mothers. But it is nevertheless relevant that the defendant assaulted the victim in this way knowing that she was pregnant.

[26]      There is no tariff for assault offending. The starting point of 14 months’ imprisonment appears to be at the upper end, but in line with the authorities referred to by counsel:

(a)Waitai v R:14 The appellant was sentenced to one charge of male assaults female. The victim was Mr Waitai’s pregnant partner and the offending took place at his home while he was on bail. An argument had ensued and Mr Waitai had told her to leave, but then prevented her from leaving. He threw an object at her back with force. He then placed her in a choke hold on three separate times in quick succession, each time squeezing her neck so she could not breathe for several seconds. After he placed her in a headlock and pushed her to the ground. The District Court Judge adopted a starting point of 18 months’ imprisonment. On appeal to the High Court the Judge reduced the starting point to 12 months’ imprisonment to “achieve relativity” with the existing case law.15

13     New Zealand Police v Gardner, above n 1, at [4].

14     Waitai v R [2014] NZHC 2116.

15 At [27].

(b)Wilson v New Zealand Police:16 The appellant in that case pleaded guilty to charges of male assaults female, assault with intent to injure, threatening to kill and breach of protection order. Mr Wilson punched his pregnant partner in the face. A week or so later Mr Wilson invited his partner over to where he was staying. An argument broke out and Mr Wilson struck her face and grabbed her around the throat to the point she was unable to breathe. Later in custody Mr Wilson threatened to kill his partner and himself. The sentencing Judge had grouped the charges together but taken the assault with intent as the lead charge. A global starting point of 15 months’ imprisonment was taken. After discounts the end sentence was 11 months. On appeal the High Court Judge noted the appellant’s record did not display a propensity for violence and his more recent history was relatively clean. The Judge determined it was appropriate to not uplift the starting point for propensity and take a starting point of 12 months’ imprisonment.

(c)R v Richardson:17 The 19 year old appellant was sentenced on charges of male assaults female, assault with intent to injure and threatening to kill. The victim was the accused’s pregnant partner and the offending took place in front of their 10 month old child. The appellant punched the victim in the stomach and flew into a rage, smashing items. He threatened to kill her and punched her multiple times in the side of her stomach and continued to attack her arms and legs. There were no serious injuries. The Judge adopted a starting point of 12 months’ imprisonment.

[27]      By itself I consider the starting point of 14 months was reasonably open to the Judge given the comparable cases, even if stern.

[28]      The Judge then imposed a further 12 months’ imprisonment for the assault on a child charge, cumulative on the 14 month starting point. Mr Stone submits the assault on a child charge should have justified an uplift of no more than six months’

16     Wilson v New Zealand Police:

17     R v Richardson [2012] NZHC 1465.

imprisonment, citing Kawhena v New Zealand Police.18 Mr Bagnall for the Police submits that the 12 month uplift, while stern, must be viewed in context. It was not a reaction to an argument with a child, but callous physical abuse of a vulnerable victim with an element of detention given he covered him with the blanket before delivering the blows.

[29]      It was available to the Judge to treat this further assault upon the child as separate offending and impose a cumulative sentence under s 84 of the Sentencing Act 2002. It is an understandable reaction to the distinct feature of the offending, notwithstanding that it took place in the same course of events. But when doing so it would also be appropriate for the Judge to consider totality. That is not something the Judge did. The failure to mention it is not an error in itself, but the fact that there were a series of uplifts without considering totality means that a stern sentence has the capacity to be manifestly excessive.19

[30]      It is also relevant that the Judge appears to have possibly made an arithmetical error in the calculation of the sentence. The 14 months for the assault, the 12 months for the assault on a child, the six month uplift for the other offences, and the two month uplift for offending on bail calculate to 34 months. The 25 per cent discount (8.5 months) then comes down to 25.5 months rather than 27.5 months.20

[31]      If the approach adopted by the Judge was followed and the 12 month sentence was imposed as a cumulative sentence, it seems to me a discount of six months for totality would have been appropriate. I am satisfied that dealing with the offences cumulatively without taking into account totality, and then adding further uplifts for further offending and for offending while on bail, including what appears to be a two month error, has led to an ultimate end sentence that is above the available range.

[32]      The particular sentencing methodology adopted by the Judge is largely immaterial given the focus on the end sentence. In the present case adopting a starting point on the lead offence, and then applying uplifts for the other offending would have been an alternative approach even though one of those offences involved a different

18     Kawhena v New Zealand Police [2014] NZHC 908.

19     See Kite v R [2018] NZCA 485 at [20]–[21].

20     If the Judge intended to impose two sets of two months for offending on bail the calculations still do not quite add up.

victim. It was still offending that either involved the same course of events, or the same victim. It is a simpler approach, and it is the approach I will adopt below when determining the appropriate sentence.

[33]      Before dealing with the consequences in terms of the sentence that should be imposed I deal first with two other discrete points that have been raised.

Remorse

[34]      Mr Stone submits Mr Gardner was entitled to a further discount for remorse of approximately 10 per cent.

[35]      Where there is tangible evidence of genuine remorse a discount of around five to eight per cent may be appropriate.21 The pre-sentence report noted Mr Gardner expressed deep remorse for the offending and sought to enrol in rehabilitative programmes. The District Court Judge considered a discount for remorse but did not accept Mr Gardner’s remorse was genuine. I consider she was entitled to draw that conclusion and it was open to her to not give a discount for remorse.

Credit for EM bail

[36]      The Crown accept that the District Court Judge failed to give credit for time served on EM bail and didn’t appear to consider that. Time spent on EM bail must be taken into account as a mitigating factor but any discount is not an arithmetic exercise

— it depends on the restrictiveness of the conditions.22 Counsel have now made inquiries and say that approximately six weeks was spent on EM bail. I do not think that any specific reduction is needed for this given the short period.

Result

[37]      I consider the appeal ought to be allowed and the sentence of two years, three months’ imprisonment substituted with a sentence of one year, nine months’ imprisonment calculated as follows:

21     See for example McArthur v R [2013] NZCA 600 at [13]–[14] and Rowles v R [2016] NZCA 208 at [18]

22     Sentencing Act 2002, s 9(2)(h) and 9(3A). See also Longman v New Zealand Police [2017] NZHC 2928.

(a)14 month starting point imposed for the offence of assault on a person in a family relationship,

(b)A separate uplift of six months for the second lead offence of assault on a child (which could have involved a separate cumulative sentence of 12 months for this office, but only if accompanied by a discount of six months for totality)

(c)Uplift of six months for the other five charges of wilful damage, intimidation and the other assault charge,

(d)An uplift of two months to reflect the fact that the offending was committed while on bail.

(e)A discount of 25 per cent for the guilty pleas.

[38]In terms of the formal sentences for the offences the outcome is:

(a)On the charge of assault on a person in a family relationship (CRN 20054000509), one year and nine months’ imprisonment.

(b)On the charge of assault on a child, nine months’ imprisonment to be served concurrently.

(c)On the other charge of assault on a person in a family relationship (CRN 19054004013), six months’ imprisonment to be served concurrently.

(d)On the charges of intimidation and wilful damage, the appellant is convicted and discharged.

Home detention?

[39]      Mr Stone submits the Court ought to consider the possibility of home detention as the end sentence is under two years.

[40]      There was a potential for home detention given it was recommended in the PAC report on the basis it “would enable the seamless continuity of the rehabilitative programmes Mr Gardner has started, and taking into account Mr Gardner’s ability to comply with a community based sentence”. The Judge thought, however, that she would not have imposed home detention even if it had been available because the totality of the offending required a full time custodial sentence.

[41]      I am not prepared to interfere with the Judge’s assessment on this point. Any continuity has also now been intercepted by the amount of time Mr Gardner has already spent in custody. It seems to me that the correct step is to now specify release conditions that will assist rehabilitation on his release from the short term sentence. I accordingly impose the special release conditions recommended in the PAC report.

Result

[42]      The appeal is allowed and a sentence of one year nine months’ imprisonment is substituted as specified in [38] above. The following special release conditions will apply until the sentence expiry date:

(a)To attend and complete an appropriate family violence programme to the satisfaction of a Probation Officer. This specific details of the appropriate programme shall be determined by a Probation Officer.

(b)To attend and complete an appropriate alcohol and drug programme to the satisfaction of a Probation Officer. This specific details of the appropriate programme shall be determined by a Probation Officer.

(c)To attend and complete such counselling/treatment/programmes as directed by a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.

Cooke J