Haynes v Police
[2022] NZHC 950
•6 May 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-82 [2022] NZHC 950
BETWEEN JAYDEN HAYNES
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 May 2022 Appearances:
SP Dickson for the Appellant
FJ McKechnie and WN Fotherby for the Respondent
Judgment:
6 May 2022
JUDGMENT OF GORDON J
This judgment is delivered by me on 6 May 2022 at 11:30 am.
.....................................................
Registrar / Deputy Registrar
Counsel: Sarah Dickson, Henderson, Auckland Solicitors: Meredith Connell, Crown Solicitor, Auckland
HAYNES v NEW ZEALAND POLICE [2022] NZHC 950 [6 May 2022]
Introduction
[1] The appellant, Jayden Haynes appeals against a sentence of 13 months’ imprisonment on the following charges in respect of which he pleaded guilty in the District Court at Waitakere:
(a)Threatening to kill;1
(b)Breach of release conditions (x 2);2 and
(c)Driving while suspended (third or subsequent).3
[2] Mr Haynes appeals on the ground that the sentence is manifestly excessive. Ms Dickson, for Mr Haynes, submits that the Judge erred in adopting a global starting point of 14 months’ imprisonment, and that eight months would have been more appropriate.
[3] Alternatively, Ms Dickson submits that the Judge could have adopted a starting point of seven months’ imprisonment on the lead charge of threatening to kill, with an uplift of one month for the driving while suspended (third or subsequent) charge. She submits that the breach of release conditions charges would not have attracted a further uplift in this context.
[4] Ms Dickson submits further that the uplift of two and a half months for Mr Haynes’ history of offending was too high, because Mr Haynes’ previous violence towards the complainant was also recognised as an aggravating factor on the charge of threatening to kill.
[5] Ms McKechnie, for the respondent, submits that Mr Haynes cannot demonstrate the sentence imposed is manifestly excessive. His sentence is consistent with comparable authorities and the Court should dismiss his appeal.
1 Crimes Act 1961, s 306(1)(a): maximum penalty seven years’ imprisonment.
2 Sentencing Act 2002, s 96(1): maximum penalty one year’s imprisonment, or $2,000 fine.
3 Land Transport Act 1998, s 32(1)(c) and (4): maximum penalty two years’ imprisonment, or
$6,000 fine.
Factual background
[6] Mr Haynes and the victim were in a relationship with a history of family violence. The current charges arose while Mr Haynes was subject to release conditions after serving a sentence of imprisonment for a serious assault on the victim in 2020.
Threat to kill
[7] On 28 November 2021, three months after Mr Haynes had been released from prison, the victim ended her relationship with him via a text message. Mr Haynes responded several hours later with the following message: “If you don’t return the ring, you will end up in a drain”.
[8]The next day, Mr Haynes sent two further messages to the victim:
(a)“Right now I could watch you die and just stare in your eyes and smile as you pass”.
(b)“I would breathe a sigh of relief as I felt your presence leave”.
[9] The summary of facts records that the victim was terrified of Mr Haynes and feared for her life. In her victim impact statement the victim said she feared for her life due to the threats made by Mr Haynes. She said she believed he was capable of following through with his threats due to his previous attacks on her.
Breach of release conditions
[10] On 26 August 2020, Mr Haynes seriously assaulted the victim. During the assault he hit her, dragged her inside by the hair when she ran outside to get help, stomped on her head and strangled her until she coughed up blood. While applying pressure to the victim’s neck, Mr Haynes told her he was going to kill her.
[11] On 14 May 2021, Judge Mathers sentenced Mr Haynes to two years’ imprisonment for the 2020 offending.
[12]On 25 August 2021, Mr Haynes was released with the following conditions:
(a)Not to contact the victim.
(b)To report to his probation officer.
[13] As detailed above, Mr Haynes was in contact with the victim in November 2021. He also failed to report to his probation officer.
Driving while suspended
[14] On 30 November 2021, the Police stopped Mr Haynes due to the manner of his driving. Police checks revealed he was a suspended driver and there was a warrant for his arrest.
District Court decision
[15]Judge Jelaš sentenced Mr Haynes in the District Court on 3 March 2022.4
[16]The end sentence of 13 months’ imprisonment was arrived at as follows:
(a)A global starting point on all charges of 14 months’ imprisonment;
(b)A discount of 25 per cent (three-and-a-half months) for an early guilty plea; and
(c)An uplift of two-and-a-half months for prior convictions.
[17] The Judge adopted a starting point of 14 months’ imprisonment after identifying five aggravating factors in relation to the charge of threatening to kill:5
(a)the threats were not necessarily spontaneous, given the delay between the victim’s ‘break up’ message and the responses;
(b)the threats not only implied an intention to kill, but were deliberately callous and aimed at causing emotional harm to the victim;
4 Police v Haynes [2022] NZDC 4359.
5 At [19]–[28].
(c)the history of previous violence against the victim indicated Mr Haynes was capable of carrying out his threats, and counterbalanced the lack of specificity in the threats;
(d)the threats caused the victim significant harm (she was convinced he would kill her and was suffering from trauma) ̶ a letter from her GP confirmed a post-traumatic stress diagnosis; and
(e)the threats were made in breach of release conditions.
[18] No additional uplift was imposed for the breach of release conditions charges. The Judge noted that the starting point “reflects those breaches as an aggravating factor of the threat to kill charge”.6
[19]No further uplift was imposed for the charge of driving while disqualified.7
[20] The Judge gave a discount of 25 per cent (or three-and-a-half months) for Mr Haynes’ early guilty plea.8
[21] Judge Jelaš considered an uplift of two-and-a-half months was warranted for Mr Haynes’ “significant” history of prior offending.9
[22]When declining home detention, Judge Jelaš observed:10
… there is a need to deter and denounce and to protect others from Mr Haynes. Mr Haynes has this significant history of family harm offending and other violence offences and now has a significant history of offending against the same victim. This offence occurred while he was subject to release conditions and has occurred fairly soon after his release.
Approach on appeal
[23] Appeals against sentence may be brought as of right under s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that
6 At [30].
7 At [31].
8 At [32].
9 At [34].
10 At [36].
Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the sentence and that a different sentence should be imposed.11 The Court of Appeal has confirmed that a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.12 This Court will therefore only intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and cannot be justified by the relevant sentencing principles.13
[24] If an appeal is allowed, this Court will substitute a sentence in accordance with the sentencing principles in the Sentencing Act 2002.
Submissions
Appellant’s submissions
[25] Ms Dickson submits that the Judge erred in adopting a global starting point of 14 months’ imprisonment. Ms Dickson submits that a global starting point of eight months’ imprisonment is more appropriate and that this represents a significant difference.
[26] Alternatively, Ms Dickson submits that the Judge could have set a starting point of seven months’ imprisonment on the lead charge of threatening to kill, with a one-month uplift for the driving while suspended (third or subsequent) charge. She submits that no further uplift for the breach of release conditions charges would have been appropriate. This methodology would also have resulted in a sentence of eight months.
[27] Ms Dickson accepts that breach of release conditions, previous convictions for violence against the victim, and the effect on the victim, are appropriate aggravating factors.
11 Criminal Procedure Act 2011, s 250(2) and (3).
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
13 Ripia v R [2011] NZCA 101 at [15].
[28] However, Ms Dickson submits that the Judge erred in finding the threats were not necessarily spontaneous. While it is accepted that the break up message was sent at 6.40 pm on 28 November 2021, and the second and third messages from Mr Haynes were sent at around 10.30 am the next day, Ms Dickson submits that Mr Haynes’ threats were a spontaneous, immature (Mr Haynes was 26 years old at the time), emotion-driven response to the victim ending their relationship, and part of an ongoing conversation including back and forth communication between Mr Haynes and the victim over the evening and morning.
[29] Ms Dickson acknowledges that the language surrounding the threats was cruel. However, she submits that the Judge double-counted this aspect of the offending because the Judge also counted the effect on the victim as an aggravating factor. She further submits the threats lacked specificity.
[30] Ms Dickson submits that an uplift of two-and-a-half months for Mr Haynes’ history of offending is too high, considering Mr Haynes’ previous violence towards the complainant was also identified as an aggravating factor on the charge of threatening to kill. Ms Dickson submits that if this Court accepts the submissions on behalf of Mr Haynes and lowers the starting point, a proportionate uplift of one month for Mr Haynes’ previous history would be appropriate.
[31] In summary, Ms Dickson submits that an appropriate global starting point is one of eight months’ imprisonment, with a 25 per cent guilty plea discount and an uplift of one month for previous convictions. This would result in an end sentence of seven months’ imprisonment (including fines being remitted as per the Judge’s decision).
Respondent’s submissions
[32] Ms McKechnie submits the Court should dismiss this appeal because Mr Haynes has not demonstrated that the sentence was manifestly excessive when compared to relevant authorities.
[33] In summary, Ms McKechnie submits that an end sentence of 13 months’ imprisonment is within the available range, particularly taking into account the high
level of culpability associated with the threatening to kill charge. The focus on appeal is whether the end sentence is within the available range. She submits that Judge Jelaš did not make any error that warrants tinkering with the sentence.
Discussion
Case law on threatening to kill
[34] There are no sentencing tariffs for a charge of threatening to kill. The Court of Appeal has commented that “[i]t is difficult to discern any consistent pattern in sentences on charges of threatening to kill”.14 However, comparison with recent case law will ensure consistency with sentencing for similar offending.15
[35] In Faaleaga v R, the Court of Appeal identified the key factors for culpability on a charge of threatening to kill as follows:16
… premeditation (the degree to which the threats were planned or calculated), the nature and frequency of the threats, any link to earlier actual violence, whether the object of the threat has public office, the ability of the offender to effect the threat and the allied question of the actual danger to the victim.
[36] The Court in Faaleaga indicated that it would have imposed a starting point of eight to nine months’ imprisonment, rather than the 10 months imposed by the sentencing judge. The offender sent a letter from prison threatening to kill certain family members (whom he believed had made complaints against his brother). The Court held that the threats were made spontaneously and were a “reflection of immediate anger” rather than a “campaign to terrorise”.17 The offender immediately regretted his actions and attempted to stop the letter from being sent. The threat was not linked to any earlier violence and was made in circumstances where it was obvious it could not be acted upon for many years. These factors put the offending “towards the lesser end” of the spectrum.18
14 Faaleaga v R [2011] NZCA 495 at [9].
15 Sentencing Act, s 8(e).
16 Faaleaga v R, above n 14, at [11].
17 At [13].
18 At [16].
[37] The appellant relies on Burchell v R, Richmond v Police and O’Connor v Police.19
[38] In Burchell v R, the Court of Appeal considered a starting point of eight months was excessive and adopted a starting point of four months’ imprisonment. The offender told a probation officer that:20
… he had had enough… He knew where the police officer lived… while… he had no intention of going to this officer’s house… if he saw him again he would kill him.
The police officer in question was not present at the time and the threats were spontaneous. This placed the offending at the lower end of the spectrum of threats to kill police officers.
[39] In Richmond v Police, a starting point of nine months’ imprisonment was undisturbed on appeal to the High Court.21 The offender sent various messages to his former partner threatening to kill her, during a custody dispute over their children. The messages read:22
SLUTT MUTT BITCH CANT WAIT UNTIL YOU DIE FUCK I WANTED 2 SMOKE YOU AT UR WORK ANY WAY LATERS SLUT EVERY BODY NUKS YOU ARE AN SMUK THE P 2 GOT THE FUCKN CHEEK
Kunt have fucked me right up in the head bitch you ganna get whats coming to you bitch slut hangi pants whore dead bitch walking
I coming for yah
[40] The offending was aggravated by the reference to the victim’s place of work, which indicated a specific plan of harm and knowledge of her whereabouts. The threats were pre-meditated and made directly to the victim over a period of seven days. However, there was no history of actual violence against the victim and the judge accepted that “the absence of an immediate ability to effect the threats reduced the level of harm caused”.23
19 Burchell v R [2010] NZCA 314; Richmond v Police [2019] NZHC 2001; O’Connor v Police HC Wellington CRI-2008-485-13, 17 April 2008.
20 Burchell v R, above n 19, at [6].
21 Richmond v Police, above n 19.
22 At [6].
23 At [29].
[41] In O’Connor v Police,24 the High Court considered a sentence of 12 months’ imprisonment might have been expected for a charge of threatening to kill (cumulative on a sentence for breaches of a protection order). The threats were made verbally, in the context of a domestic assault. The offender said, “I hate you, I’m going to kill you bitch” and told the victim he would take her to the Hutt River, hang her there and then kill himself. The offending occurred in breach of a protection order, 19 days after the offender was released from prison, having served a sentence for previous violent offending against the same victim. The offender visited the victim’s home late at night and forced the door when she closed it on him. He then assaulted her, attempted to smother her, damaged her property, including breaking her reading glasses, and said he would only leave if he could take the couple’s three-year-old daughter with him, which the victim refused to allow. There were young children in the house, who were woken by the assault. The victim was upset, crying, and fearful for her safety. As well as threatening to kill, the appellant was charged with breach of a protection order, and male assaults female. The total end sentence, upon conviction on all charges, was two and a half years.
[42]The respondent refers the Court to R v McVeagh and Blair v Police.25
[43] In R v McVeagh the Court of Appeal held that a sentence of 15 months’ imprisonment was not excessive, where a mentally ill offender sent a letter from prison threatening to kill a former member of Parliament. The appellant had a criminal history including prior convictions for possession of a firearm and threatening to kill. The safety of the community was a primary consideration.
[44] In Blair v Police the District Court Judge adopted a global starting point of 18 months’ imprisonment on charges of threatening to kill, intentional damage (unrelated), assault on a police officer and resisting arrest. The latter two charges arose when the Police spoke to the offender about the alleged threat to kill. The High Court held that a starting point of 12 months’ imprisonment was appropriate for that group of charges.26 The offender threatened to kill his partner during an argument over the
24 O’Connor v Police, above n 19.
25 R v McVeagh CA 140/94, 4 August 1994; Blair v Police HC Dunedin CRI-2010-412-10, 3 May 2010.
26 Blair v Police, above n 25, at [19].
phone. He told her that if she called the Police, he would shoot her, her mother, her father and her brother in the head and then burn down her house and smash every window in her mother’s house. The couple had a two-year-old child at the time. He also texted her threatening to kill her. The Court considered that the threat was “somewhat implausible” and accepted the appellant’s contention that he did not mean to carry the threat through. He had no previous convictions for violence.27
Analysis
[45] All but one of the culpability factors identified by the Court of Appeal in Faaleaga v R are present in Mr Haynes’ case. First, the threats were premeditated. I do not accept the submission that they were spontaneous given that they continued into a second day. They were calculated to instil fear of actual violence, repeated over the course of two days, linked to earlier actual violence for which Mr Haynes had been imprisoned, and made in circumstances in which the victim knew Mr Haynes was capable of such violence.
[46] As to the specificity of the threats, the Judge noted Ms Dickson’s submission (repeated in this Court) that the lack of detail about when or where such threats would be carried out detracts from their seriousness. The Judge said that she accepted such an assessment would be available in some cases, but in this case she did not accept the submission given the serious history of violence upon the victim.28 I agree with that analysis.
[47] In my view, Burchell v R and R v McVeagh do not assist the Court’s assessment. Both concern threats to kill a person in public office; there was no history of violence against the specified target of the threats, and no immediate opportunity to carry out the threats.
[48] Threats to kill which are made in the context of an intimate relationship, particularly where there is a history of actual domestic violence, raise special concerns for the Court. A female victim, who is the current or former sexual partner of the
27 At [16].
28 Police v Haynes, above n 4, at [24].
person making the threats, is both physically and psychologically vulnerable. The aggressor will know her home address, place of work, friends and family. There may be children involved. He will know how to frighten her, and which types of threats are likely to be most effective. If there is a history of actual violence against the victim, the threats will be very real. Where the threats are made in breach of a protection order or non-contact conditions, those court orders will often indicate a long-standing pattern of fear and intimidation. Mr Haynes’ offending falls squarely into this category of offending.
[49] In comparison with the cases concerning intimate partner violence, I consider that two factors are critical to the assessment of culpability in this context: whether the offender had (a) a history of significant violence against the victim and (b) an immediate ability to carry out the threat. Both factors are germane to the likelihood of the threat actually being carried out, and thereby the psychological effect on the victim.
[50] There are important parallels between this case and O’Connor: a history of serious domestic violence against the victim resulting in a sentence of imprisonment, recent release from prison, a relationship break up initiated by the victim, and the breach of court orders put in place to protect the victim. However, the threat to kill in O’Connor was made during a physical confrontation between the offender and the victim, in circumstances where the offender had the immediate ability to carry out the threat in some way.
[51] In O’Connor, the offender told his partner (during an extended physical confrontation in her home) that he would kill her by hanging her at the Hutt River, and then kill himself. The offender’s threats appear to have been spontaneous, desperate and included a suicide threat. As noted, the offender had recently been released from prison, having served a sentence of imprisonment for serious assault on the victim, and was in breach of a protection order. As noted above, the High Court considered a cumulative sentence of 12 months’ imprisonment would have been appropriate for the threatening to kill charge. The District Court Judge had taken a starting point of between 15 and 18 months’ imprisonment on the charge of threatening to kill, before
discounting it to 12 months to reflect the guilty plea.29 Therefore, the appropriate starting point was actually higher than the sentence considered appropriate on appeal.
[52] Like Mr Haynes, the offenders in Richmond and Blair threatened to kill their partners or former partners via telephone or text messages, in circumstances where “the absence of an immediate ability to effect the threats reduced the level of harm caused”.30 All the offenders used aggressive, intimidating language, calculated to frighten their female victims. However, although the offenders in Richmond and Blair verbally abused and psychologically intimidated their partners, there was no history of physical violence towards the victim in either case, and no previous convictions for violence.
[53] In Richmond, the offender told his former partner (during a custody dispute) that he couldn’t wait until she died, wanted to kill her at her place of work, that she was a “dead bitch walking” and he was coming for her. The offender used extremely offensive and degrading language, and sent the messages over a period of seven days (implying pre-meditation). As noted, the impact of the threats was mitigated by the lack of any history of actual violence against the victim. A starting point of nine months was left undisturbed on appeal.
[54] In Blair, the offender told his partner (during a heated argument) that if she called the Police, he would shoot her dead along with three of her close family members. The Court found that the impact of the threat was mitigated by its spontaneity, implausibility, context of high stress in relation to Police, and the fact that the offender had no previous convictions for violence. On appeal a starting point of 12 months for the charge of threatening to kill and other charges was considered appropriate.
[55] In comparison, Mr Haynes told his victim (via text messages) that she would “end up in a drain” if she didn’t return a ring to him. The next day he wrote:
Right now I could watch you die and just stare in your eyes and smile as you pass.
29 O’Connor v Police, above n 19, at [13].
30 Richmond v Police, above n 19, at [29].
I would breathe a sigh of relief as I felt your presence leave.
[56] In my view, Mr Haynes’ threats were more manipulative and sinister than those made in the comparator cases. Mr Haynes explicitly stated that he would take pleasure in killing the victim and enjoy watching her die. The threats are malicious, vengeful and calculated to cause extreme psychological distress. I agree with the finding of Judge Jelaš that the lapse of time between the victim’s message breaking off her relationship with Mr Haynes and the two messages sent the following day, indicates that the threats were not spontaneous or reactive.
[57] I do not accept Ms Dickson’s submission that the sentencing judge double- counted the callousness of Mr Haynes’ language because she also counted the effect on the victim as an aggravating factor. Judge Jelaš considered a range of factors before arriving at a global starting point. These factors are necessarily inter-related. There is no suggestion in the Judge’s sentencing remarks that double-counting inadvertently occurred.
Was the starting point manifestly excessive?
[58] Given the above analysis, I find that the global starting point of 14 months imposed on Mr Haynes for all four charges is not manifestly excessive. The starting point incorporated two breach of release conditions and one driving while disqualified (third or subsequent) charge as well as the charge of threatening to kill. Mr Haynes’ offending sits comfortably between O’Connor and Blair. In O’Connor the starting point would presumably have been in excess of the indicated appropriate end sentence of 12 months’ imprisonment on the threatening to kill charge alone. In Blair, although a starting point of 12 months included other charges (as is the case here), the aggravating factors that exist in this case were not present in Blair.
[59] I accept that the absence of an immediate ability to carry out the threats reduced the level of harm caused in this case. However, as observed by Duffy J in Richmond, the fact that the threats were made electronically does not detract from their seriousness, particularly in circumstances where the victim knows that the person making the threats is capable of carrying them out because of a history of actual
violence.31 Mr Haynes was at liberty at the time the messages were sent, and the victim was very well aware of his capacity for actual violence against her, having previously survived an assault and attempted strangulation. I am satisfied that the sentence imposed by Judge Jelaš was appropriate and within the available range.
Uplift
[60] This Court is concerned with the end sentence. I have determined that the end sentence was within the available range. In those circumstances it is not strictly necessary to consider the uplift but I do so briefly.
[61] I do not accept the suggestion that there was a double counting of Mr Haynes’ previous convictions as a consequence of the Judge having earlier taken into account Mr Haynes’ 2020 offending against the victim. Mr Haynes has an additional 80 prior convictions and notations, a number of them involving family violence, over and above the convictions for the 2020 offending. While the uplift was a significant one (just under 20 per cent of Mr Haynes’ end sentence), in all the circumstances I accept it was proportionate.
Result
[62]The appeal is dismissed.
Gordon J
31 Richmond v Police, above n 19, at [35].
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