Heaford v Police

[2024] NZHC 421

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2024-442-004

[2024] NZHC 421

BETWEEN

SLOAN THOR HEAFORD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

28 February 2024

Appearances:

R W Ord for Appellant

J T Vuataki for Respondent

Judgment:

1 March 2024

JUDGMENT OF GRAU J

[Sentence appeal]

Introduction

[1]    Mr Heaford appeals against his sentence of 17 months’ imprisonment (with leave to apply for home detention) imposed on 16 January 2024 on the following charges that arose from two separate incidents:1

(a)From events that occurred on 13 August 2023: assault with intent to injure, threatening to kill and assault on a person in a family relationship.2

1      Police v Heaford [2024] NZDC 785; the sentence was imposed with standard and special conditions, each to extend six months beyond the sentence expiry date, and with conditions as recommended by Community Probation.

2      Crimes Act 1961, ss 193 (maximum penalty of three years’ imprisonment), 306 (maximum penalty of seven years’ imprisonment) and 194A (maximum penalty of two years’ imprisonment) respectively.

HEAFORD v NEW ZEALAND POLICE [2024] NZHC 421 [1 March 2024]

(b)For events that occurred on 17 October 2023 (while on bail for the August charges): driving with excess blood alcohol and driving whilst forbidden.3

[2]    Mr Heaford appeals his sentence on the grounds that it was manifestly excessive. He says the starting point was too high and the reduction for personal mitigating factors was too low, in particular, that there should have been a modest Zhang discount.4

Background to the offending

The events of 13 August 2023

[3]    The following background to the 13 August offending is taken from the summary of facts that formed the basis of Mr Heaford’s guilty pleas.

[4]    As to the assault with intent to injure charge, at about 8:30 pm on 13 August 2023, Mr Heaford was at home with the victim, his partner. It was a new relationship of less than a month’s duration. She was lying in bed eating ice cream when he entered the room in an angry and agitated state over something she had said earlier as well as over her eating habits.

[5]    Mr Heaford stood over the victim and grabbed her head, forcing it backwards into the wall behind her. He then knocked her head back a number of times and headbutted her forehead. Mr Heaford then leaned in, bit her cheek and pulled the victim off the bed, tearing her pants. She tried to fight back but he threw her into the wardrobe doors and banged her head on the walls and furniture. Mr Heaford then stood over the victim, rubbed her face into the ice cream she had been eating, and began belittling her.

[6]    Mr Heaford told the victim more than once that he would kill her. He then walked away and the victim threw herself out of the bedroom window fearing for her

3      Land Transport Act 1998, ss 56(2) (maximum penalty of three months’ imprisonment or a fine of

$4,500, court must order disqualification for six months or more) and 52(1)(c) (maximum penalty of a $10,000 fine) respectively.

4      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

life. She ran into the street, yelling for help. These facts are the basis of the threatening to kill charge.

[7]    Mr Heaford chased the victim, grabbed her by the neck and tried to pull her back into the house saying, “Shut up. Come back inside”. These facts are the basis of the assault in a family relationship charge.

[8]    Neighbours heard the calls for help and came outside. Mr Heaford retreated back to the house and the victim called the Police. The victim’s clothes were stained from ice-cream, her pants were torn, and she had bruising and soreness all over her head. In his explanation Mr Heaford said he was drunk and only remembered arguing.

The events of 17 October 2023

[9]    While he was on bail, Mr Heaford was driving in Motueka. He was forbidden from  driving  at  the  time.  He  was  stopped  with  a  blood  alcohol  reading  of  257 milligrams of alcohol per 100 millilitres of blood.

Sentencing decision under appeal

[10]   The Judge described the assault with intent to injure charge as serious because it involved multiple applications of force with an aspect of “ritual humiliation” by Mr Heaford’s actions of rubbing the victim’s face in ice cream while belittling and verbally abusing her.5 His Honour saw the threat to kill as an aggravating factor of the assault because he said it was “part of the ritualistic humiliation at the end of that assault,” and then the assaults continued when the victim tried to escape.6 His Honour took a starting point of 25 months for all of the offending.

[11]   His Honour then gave a three-month uplift for Mr Heaford’s prior history of family violence, leading to an adjusted starting point of 28 months. A full guilty plea discount of 25 per cent was applied, along with a further four-month discount for

5      Police v Heaford, above n 1, at [17].

6 At [19].

Mr Heaford’s willingness to do something about his drug and alcohol issues, the willingness of his whānau to support him, and Mr Heaford’s expressed remorse.7

[12]   The reductions led to an end sentence of 17 months’ imprisonment.8 The sentence was imposed on the lead charge of assault with intent to injure with concurrent sentences of six months on the threat to kill charge, and three months on the assault charge.9 The Judge also granted leave for Mr Heaford to apply for home detention, given Mr Heaford’s drug and alcohol issues and his willingness to rehabilitate. However, his Honour said leave to apply for home detention was to a residential treatment centre, not to “home” in the usual sense.10

[13]   The sentences on the driving charges were a conviction and discharge on the driving whilst forbidden charge and one month’s imprisonment on the excess blood alcohol charge, to be served concurrently. Mr Heaford was also disqualified from driving for nine months.11

Approach on a sentence appeal

[14]   Sentence appeals are governed by s 250 of the Criminal Procedure Act 2011. A first appeal court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.

[15]   When considering whether a different sentence should be imposed, the court will have regard to the end sentence, rather than the process by which it was reached. It is appropriate for the court to intervene where the sentence being appealed is “manifestly excessive” and is not justified by the relevant sentencing principles.12 It must be shown that there has been an error made by the sentencing Judge.13 The court

7 At [23].

8 At [24].

9 At [26].

10 At [25].

11 At [26(d)–(e)]–[27].

12     Tutakangahau v R [2014] NZCA 279 at [32]-[35].

13     Tutakangahau v R, above n 12, at [27].

cannot ‘tinker’ with a sentence imposed where that end sentence is nevertheless in range.14

Positions of the parties

Mr Heaford

[16]   Although he accepts the Judge’s  assessment of  the offending, Mr Ord for  Mr Heaford submits that the Judge erred in setting a starting point that was too high. He submits, as he did at sentencing, that a starting point of 20 months’ imprisonment would be appropriate. Mr Ord also says that the Judge gave insufficient reductions for remorse, acceptance of responsibility, and addiction issues. He submits that an end sentence of around 14–15 months should be reached, with leave for Mr Heaford to apply for home detention to his parents’ address.

The Crown

[17]   Mr Vuataki for the Crown submitted that the Judge’s overall starting point was available to him. He says a sentence of 17 months’ imprisonment would have been available to the Judge on the assault with intent charge if it stood alone, adapting the relevant factors from Nuku v R,15 and an uplift to reflect the additional charges was appropriate. So too was the uplift for Mr Heaford’s prior offending. There was limited information to suggest Mr Heaford’s issues with alcohol were causatively linked to the offending. Lastly, in terms of home detention, Mr Vuataki submitted that if home detention was to be contemplated, nothing less than placement in full time residential treatment would be appropriate.

Discussion

Was the starting point too high?

[18]   The Crown did not provide any comparator cases, instead relying on an assessment of the aggravating factors in relation to the assault with intent to injure charge, placing it into the applicable sentencing band in the guideline decision of

14     R v Boyd (2004) 21 CRNZ 169 at [38].

15     Nuku v R [2012] NZCA 584.

Nuku v R, but without regard to the lower maximum penalty on the charge Mr Heaford was being sentenced on. Nor did it assist to compare the end sentences imposed concurrently for the other charges with the starting points that could have been imposed for those charges on a stand-alone basis. The Judge, as was appropriate, selected a starting point that reflected the overall offending. Accordingly, I have made my own comparison with other cases, although that is not straightforward given the range of circumstances in which family violence occurs. For example:

(a)Goodman v R:16 Mr Goodman plead guilty to charges of assault with intent to injure and male assaults female. Mr Goodman grabbed his partner around the neck and threw her across the room. As she tried to get up, he continued to knock her over, he headbutted her and pushed her outside. When she tried to escape, he continued to physically abuse her. She took refuge in her car and tried to call 111 as Mr Goodman endeavoured to get into the car. The Court of Appeal considered the starting point of 28 months (being 24 months for the assault with intent to injure charge with a four-month uplift for the male assaults female charge) was within an available range. The Court noted that, although the victim did not lose consciousness, this was a serious assault involving attacks to the head and neck, and that, generally, sentences of between two to three years’ imprisonment for domestic violence offending are not uncommon.

(b)Downes v Police:17 Mr Downes pleaded guilty following a sentencing indication to a charge of assault with intent to injure. Mr Downes and his partner were at his partner’s flat drinking. He assaulted her over a period of over two hours, delivering several blows to her head. She refused to be taken to hospital after a flatmate heard the assault and reported it to the Police. However, she was seen to have blood coming from her ear, swollen fingers, a large wound above her eye and swelling to her face.  The  sentencing  Judge  identified  a  starting  point  of  20 months for the assault. The identified aggravating factors were the

16     Goodman v R [2016] NZCA 64.

17     Downes v Police [2016] NZHC 2580.

attack to the head, its prolonged nature, and the vulnerability of the victim. On appeal, Ellis J upheld the starting point, describing it as stern but not manifestly excessive.

[19]   I have also had regard to Marsh v Police,18  given Mr Ord’s  reliance on it.  Mr Marsh pleaded guilty to charges of assault with intent to injure, threatening to cause grievous bodily harm and possession of an offensive weapon. The complainant was drinking with his partner when he became angry and threatened to kill himself. He opened a pocketknife and, after holding it to his neck, pointed it to the complainant. He said he wanted to use the knife on her.  He then punched her in the head, rendering her unconscious. An end sentence of 20 months was substituted for 26 months on appeal. However, there is no reference in the decision to a starting point for the assault with intent to injure charge (although it appears that a three-year starting point had been adopted at sentencing on the threatening charge as the lead charge). The case is, therefore, not a particularly useful one for comparison.

[20]Mr Heaford’s offending is broadly comparable to the two useful comparators:

(a)With regard to Goodman v R, I note that the offending in that case did not include a bite, or threats to kill, or degrading aspects. On the other hand, Mr Heaford’s offending did not include the serious aspects of strangulation present in Goodman. The subsequent assault in Goodman, when the victim was attempting to escape, also appears to have been more serious than Mr Heaford’s attempts to pull the victim back into the house.

(b)With regard to Downes v R, the assault in that case appeared to have been considerably more prolonged, and it resulted in significantly greater injury to the victim. But there were no repeated threats to kill, degrading aspects, or a subsequent assault in the context of the victim attempting to escape.

18     Marsh v Police HC Invercargill CRI-2008-425-16, 1 July 2008.

[21]   By comparison with those cases, in my view, the starting point of 25 months was on the high side. I consider that an appropriate starting point range was between 22–24 months’ imprisonment to reflect the totality of the offending in this case. Although that is a fairly  modest  difference,  I  consider  that  a  starting  point  of  25 months, is slightly out of an available range.

Was the uplift for previous convictions excessive?

[22]   Mr Heaford has a modest history of previous family violence convictions. He was sentenced in 2022 to three months’ imprisonment on charges of assault with intent to injure, two charges of assault on a person in a family relationship, and one charge of “other threat act”, all arising from offending in July 2020. That sentence was the result of a review of a sentence of 100 hours of community work and nine months’ supervision.

[23]   In my view, it was appropriate to uplift the starting point in this case given the relatively recent previous convictions for similar offending. Mr Ord did not suggest otherwise. Nor was the uplift out of proportion to the starting point. However, it was disproportionate to the sentence imposed for the previous offending when it equalled that sentence. In my view, this amounts to double punishment for offending that had originally been dealt with by community-based sentences and then substituted with a short period of imprisonment (inevitably because Mr Heaford did not carry out the requirements of those sentences).

[24]I consider that an appropriate uplift was no greater than one month.

Was the reduction for personal circumstances inadequate?

[25]   The Judge reduced Mr Heaford’s sentence by four months. That amounts to a 16 per cent reduction. In my view, that level of reduction was appropriate. In particular, I do not accept the Judge failed to take Mr Heaford’s addiction issues into account. It is implicit in the Judge’s reference to Mr Heaford’s “willingness to do something about the issues you have got”, later repeated when the Judge granted leave to apply for home detention, that he had taken this factor into account. I consider this level of reduction was appropriate in a global way to take underlying addiction into

account, along with rehabilitative prospects (which are made more promising with family support), and the remorse Mr Heaford expressed for his offending.

Conclusion

[26]   I have found errors in the Judge’s sentencing in this case; involving a starting point that was slightly out of an available range and an uplift for previous convictions that was too high. In light of that conclusion, I need to construct the sentencing exercise again to decide if the end sentence was manifestly excessive.

[27]In my view, the construction of the sentence ought to be as follows:

(a)a global starting point of 24 months’ imprisonment for the August charges (as representing the top of the available range I have identified above and on the basis that this was a serious incident of family violence that required a stern response);

(b)an uplift of one month to reflect Mr Heaford’s previous family violence convictions;

(c)a reduction of 25 per cent for guilty pleas;

(d)a reduction of 16 per cent for personal mitigating factors; and

(e)resulting in an end sentence of 15 months’ imprisonment.

[28]   When compared against a 17-month end sentence, that amounts to a reduction of approximately 12 per cent. I do not consider that reduction amounts to tinkering, particularly given the significant practical  effect  of the reduction  on  a person in  Mr Heaford’s situation, where, in the context of a short-term period of imprisonment, he will be eligible for release one month earlier than he would otherwise have been.19

19     See, for example, Police v Stenning [2023] NZHC 3477.

[29]   Mr Heaford was granted leave to apply for home detention. That course remains available to him. Mr Ord submitted that there is an address available with supportive whānau. That will be a matter for him to advance in the District Court.

Result

[30]The appeal is allowed.

[31]   The sentence of 17 months’ imprisonment is  quashed,  and  a  sentence  of 15 months’ imprisonment is substituted, with leave to apply for home detention.

[32]The sentences on the charges remain, to be served concurrently.

Grau J

Solicitors/Barrister:

Crown Law, Wellington for Respondent R W Ord, Barrister, Nelson for Appellant