Hilaire v Police

[2022] NZHC 490

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-443-29

[2022] NZHC 490

BETWEEN

JUSTIN HILAIRE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 March 2022
Appearances:	J M Woodcock for Appellant J E Bourke for Respondent
Judgment:	17 March 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 17 March 2022 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

HILAIRE v POLICE [2022] NZHC 490 [17 March 2022]

[1]    Justin Hilaire was sentenced  in  the  District  Court  at  New  Plymouth  to  15 months’ imprisonment on three charges of breaching a protection order,1 assault on a person in a family relationship,2 and breaching release conditions.3 He appeals his sentence on the basis it is manifestly excessive.

[2]    Judge Greig took a starting point of nine months’ imprisonment for the assault, breach of release conditions and breaches of the protection order. He increased this by three months to reflect Mr Hilaire’s previous convictions and in apparent recognition that he was at the time of this offending subject to a sentence of intensive supervision and in breach of his release conditions. The Judge then uplifted the sentence by a further nine months’ imprisonment for a further breach of the protection order. From a total starting point of 21 months’ imprisonment, a six-month deduction for Mr Hilaire’s guilty pleas resulted in an end sentence of 15 months’ imprisonment.

[3]    Two grounds of appeal are advanced. First, that the uplift for Mr Hilaire’s previous convictions was excessive. Second, that the uplift for the later offending was too high.

Background

[4]    Mr Hilaire had previously been in a relationship with the victim and had recently been convicted of breaching a protection order, for which he was imprisoned for two months. Contrary to the terms of the protection order and his release conditions, on the morning of 3 October 2021, Mr Hilaire went to the victim’s home. A verbal altercation ensued, and the victim asked Mr Hilaire to leave. Initially he did so but returned a short time later and the argument resumed.

[5]    Later that evening, Mr Hilaire was again asked to leave by the victim. He refused. After having been pushed out the door, Mr Hilaire started banging on the outside windows demanding to be let in. Out of fear, the victim allowed him back into her home. The victim retreated to her bedroom but Mr Hilaire followed. He pushed the victim onto her back before throwing himself on top of her and pinning her down

1      Family Violence Act 2018, ss 90 and 112(1) — maximum penalty three years’ imprisonment.

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

3      Sentencing Act 2002, s 96(1) — maximum penalty one year’s imprisonment.

on the bed. He grabbed her wrists and held them firmly above her head, preventing her from moving. When the victim was able to break free, she called the police.

[6]    Mr Hilaire was arrested and remanded in custody. A condition of his remand was that he not contact the victim. Notwithstanding that obligation or the protection order, on 9 November 2021, Mr Hilaire posted a letter to the victim. Its content was not of a threatening nature but indicated an unwillingness to end the relationship and a refusal to accept the victim did not want to be with him.

Sentencing remarks

[7]    The Judge described the offending as “relatively low level but persistent and unpleasant”. It was noted that Mr Hilaire’s criminal history dated back to 2005 and, while it consisted mostly of alcohol, driving and dishonesty offending, there had been recent instances of family violence. The pre-sentence report exhibited Mr Hilaire’s failure to take responsibility for his actions and his propensity to blame the victim. Mr Hilaire’s tendency to make impulsive decisions regarding the victim and to breach release conditions, combined with his apparent inability to accept the victim’s wishes to have nothing further to do with him, were viewed as putting him at high risk of reoffending and posing a risk to this particular woman.

[8]    Mr Hilaire’s drug and alcohol difficulties, and his mental health issues, including ADHD, were acknowledged. However, in the absence of any suitable address being available to him, imprisonment was the only available option.

The appeal

[9]    While it was acknowledged that Mr Hilaire has some previous convictions for violence, Ms Woodcock submitted on his behalf that the uplift of three months for his previous history was excessive. It was noted he only had the one prior conviction for breaching a protection order, which had resulted in a sentence of two months’ imprisonment. It was submitted the uplift was longer than the length of the previous discrete sentence of imprisonment for this earlier offending and, as a result, was disproportionate. In that regard, it was emphasised that an uplift should not amount to double punishment.

[10]   In relation to the nine-month uplift for the November offending, reliance was placed on the approach taken by this Court in White v Police, where Dunningham J found that uplifts for repeated breaches of a protection order were excessive.4 In that case the appellant, while on remand for having breached a protection order, arranged for a text message to be sent to the victim which was followed the next day by two further attempts to contact the victim by phone, and a further text message. The victim later answered a call without realising it was from the appellant. These further breaches while in custody resulted in a six-month uplift. A further three months was also imposed for a third breach which arose when the appellant arranged for his father to email the victim to make arrangements for him to see his child.

[11]   On appeal, the combined nine-month uplift for these further breaches was reduced to one of five months. In doing so, this Court referred to T v Police and Narayan v Police.5 In the former case a three-month uplift was imposed on top of a six-month starting point for two further instances of the appellant writing letters to the victim from prison. In Narayan a three-month uplift was also applied for the further breach of a protection order when the appellant, while on remand, arranged for a person to contact the victim for him and subsequently spoke to her and their children on the telephone.

[12]   Ms Woodcock further submitted that the combined starting point of 21 months’ imprisonment was too great. In support of that submission she contrasted the circumstances of the present offending and the total starting point adopted in this case with that taken in two earlier appeals to this Court. In Woods v Police, Wylie J undertook an analysis of breach of protection order sentences dealt with on appeal.6  It was observed there was no tariff judgment for this type of offending and that sentences for breaching protection orders vary enormously in terms of culpability, degrees of threat, and psychological or physical harm to the protected person. In that case, the appellant was sentenced to two years and three months’ imprisonment for 10 convictions of breaching a protection order and three convictions for trespass.

4      White v Police [2020] NZHC 1535.

5      T v Police [2012] NZHC 1900; and Narayan v Police [2014] NZHC 1241.

6      Woods v Police [2015] NZHC 305.

[13]   The appellant was in a long-term relationship with the victim, which came to an end. He was trespassed but returned to the address in breach of the trespass notice on three occasions. A temporary protection order was issued, which was subsequently breached on three occasions. The appellant was bailed on these charges, however, further breaches occurred, and five further charges were laid. While on remand in custody, he breached the protection order on two further occasions — once by speaking to his son on the phone and another by using an associate to communicate with his family. This resulted in one charge being laid. The final breach occurred when the victim was walking her dog and observed the appellant driving past her four times. She decided to return home after this and found unwanted gifts outside her garage.

[14]   Wylie J considered an appropriate starting point for all the breaches of the protection order to be 18 months’ imprisonment. A discount of two months was adopted for the absence of previous convictions, along with a further two and a half months for guilty pleas. That resulted in a term of imprisonment for the breaches of the protection order of 13 and a half months.

[15]   In Narayan, the appellant appealed concurrent sentences of 11 months’ imprisonment imposed on two charges of breaching a protection order.7 The appellant had separated from his wife of 17 years and, in breach of a protection order, visited the victim’s house with a machete. He told her he wanted to kill himself. When later remanded in custody, the victim received a phone call from a person in prison who asked if she would take a call from the appellant. Subsequent contact was made by the appellant, and a request made to the victim to bring their children to prison to see him. On the appeal, a starting point of 15 months’ imprisonment was considered appropriate for all the breaches.

[16]   In relation to the circumstances of this case, Ms Woodcock emphasised that Mr Hilaire had initially been invited to the address, had effectively spent the day with the victim and was only asked to leave after an argument had developed, suggesting contact was initially consensual. The assault was described as being of a low-level nature and it was submitted the correspondence sent from prison, while representing

7      Narayan v Police, above n 5.

a breach of the protection order, was not threatening in any way and readily traceable to Mr Hilaire.

[17]   Ms Woodcock submitted a global starting point of no more than 12 to 14 months’ imprisonment was warranted. When combined with a 25 per cent discount for Mr Hilaire’s early guilty plea, it was submitted the appropriate end sentence should have been one of between nine to 11 months’ imprisonment.

The respondent’s position

[18]   On behalf of the police, Mr Bourke submitted the starting point of nine months’ imprisonment for the earlier October offending was unimpeachable. However, it was responsibly acknowledged the nine-month uplift for the later breach of the protection order was beyond the range available to the sentencing Judge. By reference to T v Police, it was submitted an uplift of no more than six months’ imprisonment should have been imposed.8 The appellant in that case had sent two threatening letters to the complainant from prison and a further one to the complainant’s employer. A starting point of six months’ imprisonment was applied for the first breach and a three-month uplift (factoring in totality) was applied for the other two breaches. This resulted in a nominal starting point of nine months’ imprisonment. That approach was endorsed by this Court on appeal.  Mr Bourke  accepted  that  the  letter  sent  from  prison  by  Mr Hilaire in this case was not threatening or abusive, but it did demonstrate his fixation with the victim and Mr Hilaire’s continuing disregard for the protection order.

[19]   In relation to the uplift for previous convictions, Mr Bourke submitted the three-month increase was appropriate given Mr Hilaire’s recent convictions for family violence, although it was noted the Judge had applied the incorrect methodology by applying the uplift before the guilty plea credit was deducted from the starting point.9

8      T v Police, above n 5.

9      Citing Moses v R [2020] NZCA 296, [2020] 3 NZLR 583; and R v Stuart [2021] NZCA 539.

Analysis

[20]   As noted by this Court in Woods, breaches of protection orders may range widely in terms of their nature and seriousness.10 Accordingly, the sentences they attract can be diverse. Each case turns on its own facts, with particular attention to be given to the offender’s culpability and the degree of threat and psychological and physical harm to the protected person.11

[21]   There can be no real contest that the starting point of nine months’ imprisonment for the first tranche of offending was appropriate. Indeed, there are grounds to suggest the starting point was light given the persistent and violent, albeit low-level, nature of the incident at the victim’s house.

Three-month uplift

[22]   A particularly concerning aggravating feature of Mr Hilaire’s offending on    3 October was that it represented a repetition of the breach he committed in the previous month for which he was sentenced to two months’ imprisonment. That repeat offending must be viewed as even more serious when regard is had to the fact that not only was Mr Hilaire in breach of his release conditions by contacting the victim, but he was also at the time subject to a sentence of intensive supervision for other earlier, but still relatively very recent, family violence. On 1 September 2021, Mr Hilaire was convicted on three charges of assault on a person in a family relationship and wilful damage in a similar family violence context.

[23]   The approach taken by Judge Greig, in response to that earlier offending, had focussed on Mr Hilaire’s rehabilitation, and a sentence of 18 months’ intensive supervision was imposed. In addressing this aspect of the offending and the background to Mr Hilaire’s previous involvement with the Court, the Judge stated:

[17] I am going to increase [the nine month starting point for the 3 October offending] I am afraid because of your history, because you were on intensive supervision and because you were in breach of your release conditions. I am probably repeating myself there because that is all part of the offending on   3 October, so I increase that by three months. So it is 12 months.

10     Woods v Police, above n 6.

11     Anderson v R [2016] NZCA 346.

[24]   The Judge’s approach tended to conflate aspects of the offending itself, it having occurred when Mr Hilaire was already subject to a sentence for family violence and in breach of his release conditions, with his relevant and recent criminal history, which is an aggravating personal circumstance. However, I consider the Judge was correct to view these factors as significant.

[25]   The appeal against the three-month uplift was focussed on it being excessive or even unnecessary in order to recognise Mr Hilaire’s past offending. However, I consider the Judge was entitled to be concerned that the assault on the victim and the breaches of the protection order represented a continuation of Mr Hilaire’s offending and his failure to respond to previous rehabilitative efforts that left the Court with little choice but to take a more punitive approach. I accept the three-month uplift, if examined solely through the lens of an increased sentence for the prior breach of the protection order that attracted a two-month term of imprisonment, may be seen to be excessive. However, I consider it should more accurately be viewed as recognition of the wider aggravating circumstances of the 3 October offending which could, in any event, have warranted a 12-month starting point.

[26]   Arguably, as submitted by Mr Bourke, the three-month uplift for Mr Hilaire’s previous convictions could be justified on the basis he has six previous convictions for family violence-related offending, four of which he was sentenced for in the month prior to the current offending. But the short point is that the final starting point of 12 months’ imprisonment for the 3 October offending, when assessed on the basis it reflected a continuation of Ms Hilaire’s recent similar offending against the same victim and a complete disregard of court-imposed orders and conditions, cannot be considered excessive.

The nine-month uplift

[27]   As acknowledged by the respondent, the nine-month uplift for the further breach committed whilst Mr Hilaire was in custody was simply too great. While the sending of the letter is indicative of the persistent nature of Mr Hilaire’s offending and his lack of insight that the relationship is at an end, or understanding he must comply with the requirements of the order to which he is subject, the imposition of an

additional term of nine months’ imprisonment, that results in a total sentence of     21 months’ imprisonment, is out of proportion to the gravity of the overall offending. The further breach represents a continuation of Mr Hilaire’s ongoing offending and his disregard for the victim which must be deprecated in strong terms. The Judge was entitled to mark that further offence with a significant uplift. However, as is apparent from the cases reviewed earlier and the approach taken by this Court in like circumstances, nine months was excessive.

[28]   The Judge rightly observed that, while the content of the letter might seem to Mr Hilaire to be harmless, it represented an unwarranted intrusion on the victim’s life at a time when she was entitled to believe she could feel safe from his attentions. As noted by Mr Bourke, it showed persistence and a flagrant disregard for the restrictions with which Mr Hilaire was obliged to comply. However, I consider a four-month uplift would have adequately recognised these considerations. It would also have better accorded with the approach previously taken by this Court in similar circumstances, particularly having regard to the absence of any threats or the content of the letter having no greater sinister overtones beyond the concerns raised regarding Mr Hilaire’s repeat behaviour.

[29]   There is no dispute that Mr Hilaire is entitled to full credit for his guilty pleas. Applying a 25 per cent credit to an adjusted overall starting point of 16 months’ imprisonment results in a 12-month term of imprisonment.

Result

[30]   The appeal is allowed. The sentence of 15 months’ imprisonment is quashed and in its place a sentence of 12 months’ imprisonment is substituted. The imposition of the special release conditions for six months remain undisturbed.