Iyer v New Zealand Police

[2017] NZHC 353

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-000039 [2017] NZHC 353

BETWEEN

JOHNATHAN ELI IYER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 March 2017
Appearances:	S Turner for Appellant R D Smith for Crown
Judgment:	7 March 2017
Reissued:	8 March 2017

JUDGMENT OF DUNNINGHAM J

[1]      On 18 November 2016, Mr Iyer was sentenced to two years and one month’s imprisonment for a charge of breaching a protection order.  He was also sentenced to two months’ imprisonment on each of two charges for wilful damage, to be served concurrently.

[2]      Mr Iyer now appeals his sentence.   He submits that Judge Crosbie made errors of principle resulting in a manifestly excessive term of imprisonment because the Judge:

(a)       did not correctly apply s 8(e) Sentencing Act 2002 and adopted a starting point that was too high given the case law;

(b)failed  to  consider  circumstances  relating  to  the  offender  when applying s 8(d);

IYER v NEW ZEALAND POLICE [2017] NZHC 353 [7 March 2017]

(c)       misapplied s 9(1)(j) (relating to Mr Iyer’s previous criminal history);

(d)failed to properly consider the totality of the offending in accordance with s 85; and

(e)       erroneously imposed a four month uplift for the two charges of wilful damage (contrary to s 84).

Background

[3]      On 6 December 2011, Mr Iyer was made subject to a final protection order preventing him from contact with the victim and her son.  It appears Mr Iyer and his victim had been in an off-on relationship which had, again, broken up about two to three weeks before the incidents which gave rise to these charges occurred.

[4]      On 21 September 2016, the victim was at home with her son when the appellant arrived uninvited very early in the morning.  Mr Iyer appeared intoxicated and was holding a can of beer.  Despite being told to leave repeatedly, he entered the house.  He insisted on talking to the victim despite her protestations, and he ignored her continued requests for him to leave.

[5]      Mr Iyer picked up a stereo from inside the house and threw it out the door onto the lawn, causing it to break.  The victim’s son was awoken by this so she sat with him and called police.  She heard banging noises continue outside the property and checked for the appellant after they stopped.  She did not see him but discovered that her car windscreen had been smashed and there was a large brick on the front of the car.

[6]      In explanation, Mr Iyer explained to police that he had been invited to pick up his belongings and that the stereo was his.

Sentencing in the District Court

[7]      Mr  Iyer  pleaded  guilty  to  the  three  charges  and  was  sentenced  on

18 November 2016.

[8]      The Judge noted a number of aggravating features of this offending.  These included that the appellant had no right to be at the house, he arrived in the very early hours of the morning, he was drunk, he was aggressive, he was asked to leave and he did not, he was violent in throwing the stereo, there was a child present, and he continued to be violent after leaving the house.

[9]      The Judge went on to consider the cases of Bartlett v Police,1 Tetau v Police,2 and Mitchell v R.3   He found that due to the aggravating factors of this incident, and Mr Iyer’s history of past breaches, that this offending was of a more serious nature than in those cases.   In particular, he notes that this was the sixth breach of the

protection order in relation to this complainant, but Mr Iyer’s seventeenth breach of a protection order since 1997.  Mr Iyer also had other convictions which indicated that he had difficulty complying with sentences of the Court.  For this reason, noting that Parliament had increased the maximum penalty for breach of a protection order from two to three years, the Judge held that this was an “extraordinary case”, warranting a starting  point  of  two  and  half  years’ imprisonment.    He  then  uplifted  that  by four months  for  the  two  wilful  damage  charges  and  applied  the  full  credit  of

25 per cent for the appellant’s early guilty plea.  This resulted in an end sentence of two years and one month’s imprisonment.

Principles of appeal

[10]     Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4   It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not

justified by the relevant sentencing principles.5    The focus is on the end sentence

1      Bartlett v Police [2016] NZHC 850.

2      Tetau v Police [2015] NZHC 1284. The Judge referred to the case as “Tito v Police” but this was in error.

3      Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498.

4      Criminal Procedure Act 2011, ss 250(2) and 250(3).

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

rather than the specific process by which the judge reached it.6   The appellate court will not intervene when the sentence is within the range that can properly be justified by established sentencing principles.7

Analysis

Appropriateness of starting point

[11]     There is no tariff judgment for breaches of protection orders, given that they vary enormously in culpability, and in the degree of the threat posed to the protected person.8   The maximum period of imprisonment for a breach of a protection order is

three years.9   As the Judge noted, this was raised from two years in 2013 and shows

that Parliament views this as a serious offence.

[12]     An important factor in this offending is the number of past convictions the appellant has for breaching protection orders.   He has 17 in total, with five being against the current victim.  The Court of Appeal has stated that “repeated breaches of protection orders calls for a condign sentencing response”.10

[13]     Mr Turner submitted that the Judge’s adoption of a starting point of two and a half years in this case was out of kilter with the starting points adopted in Bartlett and Mitchell, saying “when the present case is compared with the circumstances in Bartlett, they do not justify the adoption of a starting point over twice as high as that found in Bartlett”.

[14]     In Bartlett v Police, the appellant went to the victim’s work and verbally abused her.   He left, however, thirty minutes later he telephoned her at work and continued to abuse her.  Thirteen days later he sent an email to her.  These were the ninth and tenth breaches over a period of two years.  The Judge adopted a 14 month starting point.  However, I consider that the present case is more serious than Bartlett

as the particular breach occurred in the very early hours of the morning, he acted in a

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

7      Larkin v Ministry of Development [2015] NZHC 680 at [26].

8      Woods v Police [2015] NZHC 305 at [35] and [37].

9      Domestic Violence Act 1995, s 49(3).

10     R v Nathan CA209/06, 29 November 2006 at [25].

threatening manner with a child present, and he damaged property.   Furthermore, there was a more extensive history of breaches in the present case than in Bartlett.

[15]     In Mitchell v R, which was decided when the maximum penalty for a breach was two years, a starting point of 18 months was adopted.  In that case, the defendant left two abusive phone messages an hour before she arrived at the victim’s house close to midnight.  She brought a tyre iron with her and proceeded to walk around the house, smashing most of the accessible windows.   She smashed a large glass panel on the front door which allowed her to enter the house.   Once inside she proceeded to threaten the victim.   In the five years since the protection order had been obtained, there had been nine previous breaches.

[16]     While the appellant accepts that the 18 months starting point was adopted in the light of the then maximum penalty of two years, and would need to be adjusted accordingly, Mr Turner submitted that the offending in Mitchell was more serious than in the present case, because of the use of the weapon, the premeditation, the extent of the loss, the short time which had elapsed since there had been similar offending and the seriousness of the intentional damage charge.

[17]     While the Judge considered the present case to be of a more serious nature which justified a higher starting point than in Mitchell, I think the distinction is a fine one.  They are both extremely serious cases which justified sentences towards the upper end of the sentencing band.  In Mitchell the starting point was 75 per cent of the maximum sentence and in this case it was 83 per cent of the maximum sentence. Both starting points, in my view, fairly reflected the gravity of the offending but in particular, the level of recidivism in Mr Iyer’s case.

[18]     The respondent also relied on the decision in Tetau v Police, where a starting point of two years’ imprisonment was adopted.  Mr Tetau was being sentenced for breach of a protection order and an assault on a separate person.  The breach was Mr Tetau’s eleventh in respect of that order.  In that case Mr Tetau was originally on the property with the victim’s consent, but there was a failure to leave when asked. In reviewing relevant cases on appeal, the Court in Tetau referred to Mitchell and noted “the willingness of the Courts to impose substantial starting points in relation

to breach of protection order recidivism”.11   Therefore, despite the “minor” nature of the breaches, a starting point of two years’ imprisonment was appropriate to reflect the totality of the offending for which Mr Tetau was for sentence.

[19]     In my view, given the wide range of aggravating features that the Judge identified, and the long history of recidivism in respect of breaches of protection orders, a starting point of two years six months was justified.   I take particular account of the fact that the experienced District Court Judge recorded “it is an extraordinary case and frankly [in my] 15 years on the bench I have not seen anyone with as many breaches.  Something needs to be done with you from a rehabilitative perspective”.

[20]     In light of other case law, and taking account of s 8(d) of the Sentencing Act 2002 which requires judges to impose a penalty near to the maximum prescribed for the offence “if the offending is near to the most serious of cases for which that penalty is prescribed”, the starting point of two and a half years was warranted.  This ground of appeal fails.

Application of ss 8(d) and 9(1)(j)

[21]     The appellant submits that the Judge did not pay regard to the two year gap in Mr Iyer’s offending for breaches of the protection order, and this was contrary to the principles in ss 8(d) and 9(1)(j) of the Sentencing Act 2002.

[22]     In  my  view,  the  Judge  did,  at  least  implicitly,  take  account  of  gaps  in offending.  He noted that “the number of convictions also needs to be set against the period of (sic) which they were incurred” and he did note that the 17 convictions were incurred over “a considerable period of time”.   However, it is clear that the sheer number of breaches was the predominant consideration and, in my view, the Judge correctly focused on that, particularly when six of those were in respect of the same protection order which had been imposed in 2011.  The gap of two years in offending was a relatively modest one, and appears likely explained by a period of

reconciliation between the appellant and his victim during that time.  However, as

11     Tetau v Police, above n 2, at [34].

soon as the relationship broke down again, there was a reversion to defiance of the protection order.

[23]     I am satisfied the Judge was entitled to consider that this break in offending did not detract from the need to impose a sentence at the upper end of the available penalty.

Totality

[24]     The appellant’s submissions suggest that the Judge considered totality at the wrong stage of the sentencing process, when he said:

As to starting point, in my view, that needs on a totality to be two and a half years’ imprisonment.  It is approaching the maximum.  There needs to be an uplift of four months with wilful damage before giving you credit for your guilty plea of 25 per cent.

Mr Turner submitted that the Judge’s consideration of the totality of the offending should have been undertaken after consideration of all aggravating and mitigating features and, by adding a further four months’ prison was inconsistent with the correct application of s 85.

[25]     I do not consider that the Judge’s use of the word “totality” at this point was intended to constitute his consideration of the appropriateness of the overall sentence under s 85.   It is clear from reading the judgment it is used simply to explain the length of the starting point.

[26]     For this reason I am not satisfied that there was an error in principle by considering totality at the wrong juncture in sentencing.

Uplift for wilful damage

[27]   The final criticism of the Judge’s sentencing exercise is that the Judge effectively imposed  cumulative sentences  for  the two  wilful  damage  charges  to arrive at an uplift of four months to the sentence.   The appellant says that this is inconsistent with s 84, which provides that concurrent sentences of imprisonment are generally appropriate where an offender is being sentenced for offences of a similar

kind and where they are a “connected series of offences”.  Furthermore, there was a degree of double counting of the wilful damage charges in the way the Judge sentenced Mr Iyer.

[28]     In my view, this is the only ground which has some merit.   It appears that there  has  been  a  double  counting  in  respect  of  the  offending  involving  wilful damage.  While the Judge has complied with s 84 in that he has imposed the two months sentence for each charge of wilful damage concurrently with the sentence for breach of the protection order, he has also, in my view, taken account of this aspect of the offending in setting the starting point, but then also reflected it, to the full extent of the cumulative sentences he would have imposed, by uplifting the sentence by four months.

[29]     The fact that he took account of this element of the offending in setting the starting point is made clear in his discussion of aggravating features.  He refers to his actions of “picking up the stereo and throwing it at the door” which he described as an aggravating feature of violence and aggression.   He also refers to the damage caused by the violence.  Those factors were included in justifying the two and a half year starting point.  In my view, it was unnecessary therefore to apply a further uplift for those aspects of the offending, and the Judge was in error to do so.

[30]     That being the case, the sentence before applying the 25 per cent discount for guilty plea would remain at two and a half years. After the deduction for guilty plea, it would reduce to one year 10 months and two weeks’ imprisonment, rather than two years one month’s imprisonment.  That is a modest adjustment of two and a half months and borders on “tinkering” with the sentence.   However, it is not so insubstantial as to not be a meaningful difference.

[31]     Accordingly, the appeal is allowed.  The sentence of two years one month’s imprisonment is quashed and a sentence of one year 10 months and two weeks is substituted.

[32]     The  concurrent  sentences  in  respect  of  the  two  wilful  damages  charges remain unaltered.

Solicitors:

S Turner, Barrister, Dunedin

RPB Law, Dunedin

Addendum

As Mr Iyer is now subject to a short term of imprisonment then, pursuant to s 93(2) of the Sentencing Act 2002, he is subject to the standard conditions in s 14(1) of the Parole Act 2002 until the sentence expiry date unless the Court specifies a different date.

For the avoidance of doubt, I see no need to impose a different date, nor do I see the need  to  impose  any special  conditions  on  the offender  under  s  93(2)(b)  of  the Sentencing Act.