Jackson v Police

[2019] NZHC 281

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-000070

[2019] NZHC 281

BETWEEN

CAJUN POUTU JACKSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	21 February 2019
Appearances:	R Quin for the Appellant B Vaili for the Respondent
Judgment:	21 February 2019

ORAL JUDGMENT OF HINTON J

Counsel/Solicitors:

Rob Quin, Barrister, Hamilton Almao Douch, Hamilton

JACKSON v NEW ZEALAND POLICE [2019] NZHC 281 [21 February 2019]

Introduction

[1]    Mr Jackson appeals the sentence of Judge Burnett in the Hamilton District Court, given on 21 December 2018.1

[2]    He pleaded guilty to one charge of breaching a protection order.2 The complainant in this matter is Mr Jackson’s  former  partner,  with  whom  he  has four children.

[3]    Mr Jackson breached the order by removing two of their children from their grandmother’s house without informing the complainant and not returning them for several days, this amounting to psychological abuse of the complainant.

[4]    Judge Burnett sentenced Mr Jackson to 16 months’ imprisonment. Mr Jackson appeals on the basis the starting point was too high and/or the uplift the Judge applied was “double counting”. Mr Jackson says this resulted in a sentence that was manifestly excessive.

Background

[5]    The complainant has a parenting order giving her custody of the children. That order stipulated that Mr Jackson was to have only supervised access. The protection order was made after Mr Jackson assaulted the complainant and took two of their children in 2015.

[6]    On 7 July 2018, the complainant dropped the children at their grandmother’s house, during which it seems Mr Jackson was to have access to the children. The complainant told her not to let him have any unsupervised access.

[7]    On 11 July 2018, the complainant became aware that Mr Jackson had two of the children with him. She was afraid for them given Mr Jackson’s history, leading to the terms of the parenting order.

1      Police v Jackson [2018] NZDC 26963.

2      Domestic Violence Act 1995, ss 19(1)(d), 49(1)(b) and 49(3).

[8]    Both the complainant and members of Mr Jackson’s family attempted to contact Mr Jackson to find out where he and the children were. They could not contact him. She then contacted the Police.

[9]    On the morning of 12 July 2018, Mr Jackson called the complainant and verbally abused her, as he had discovered she had contacted the Police. The complainant told him the children needed to be returned to their grandmother’s house. He did not react well and verbally abused her further. She still did not know where the children were.

[10]   Mr Jackson eventually returned the children to their grandmother’s on the evening of 14 July 2018.

Proceedings and judgment in the District Court

[11]   Mr Jackson appeared in the Hamilton District Court on 16 July 2018 in respect of one charge of breaching a protection order between 11 July and 14 July 2018. No plea was entered and he was remanded on bail to appear on 1 August 2018.

[12]   On 25 July 2018, Mr Jackson was arrested for breaching his bail conditions. He was re-admitted to bail.

[13]   On 1 August 2018, Mr Jackson’s attendance was excused, a plea of not guilty was entered and  trial  by  jury  elected.  He  was  further  remanded  to  appear  on 16 October 2018 for case review hearing.

[14]   On 8 August 2018, Mr Jackson breached his bail conditions. He was remanded in custody while the address he proffered was checked.

[15]   On 9, 10 and 13 August 2018, Mr Jackson appeared and each time he was remanded in custody as the proposed bail address check had not been completed.

[16]On 14 August 2018, Mr Jackson was re-admitted to bail.

[17]   On 31 August  2018,  his  case  review  hearing  date  was  rescheduled  to  19 September 2018 at 2.15 pm for a Police case review hearing.

[18]   On 19 September 2018, Mr Jackson failed to appear and a warrant to arrest was issued.

[19]   On 2 November 2018, Mr Jackson was arrested and remanded in custody by consent.

[20]   On 7 November 2018, Mr Jackson entered a guilty plea to the charge of breaching a protection order and was subsequently remanded in custody pending sentence.

[21]   On 21 December 2018, Judge Burnett held that Mr Jackson’s actions amounted to a plain case of psychological abuse and a breach of the protection order.

[22]   The Judge considered, this being the fifth breach of a protection order, and given the circumstances of the breach, the appropriate starting point was between   12 and 16 months’ imprisonment. She settled on a starting point of 14 months. The Judge then applied an uplift of six months to account for Mr Jackson’s previous history.

[23]   The Judge noted that his previous history included the four previous breaches of the protection order, (two in 2015, and another two in 2010) as well as three convictions for wilful damage, three for male assaults female, and one for assaults with intent to injure, all of which were for family violence-related offending. In respect of each of these charges, Mr Jackson had been sentenced to terms of imprisonment, albeit brief terms in the case of each of the protection orders.

[24]   Judge Burnett allowed a discount of 20 per cent for a guilty plea at the first case management conference, coming to a final sentence of 16 months’ imprisonment.

[25]   The Judge considered this was the least restrictive outcome available. She did not consider a sentence involving electronic monitoring would be suitable, noting  Mr Jackson had eight convictions for breaching release conditions or

community-based sentences. She also noted that Mr Jackson had not consented to electronic monitoring being considered, in any event.

Approach on appeal

[26]   Under the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.3

[27]   In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.4 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.5

[28]   The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.6 The focus is on the end result, rather than the process by which the sentence was reached.7

[29]   In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).8 In any other case, the Court must dismiss the appeal.9

Submissions

[30]   Counsel for the appellant, Mr Quin, argues two points. First, he says in written submissions that the starting point Judge Burnett took was too high. In oral submissions, he acknowledges that the starting point was possibly open to the Judge, but he says that the uplift the Judge applied for previous convictions was double counting. He says that Judge Burnett took Mr Jackson’s history into account when she set the starting point and again when she allowed for the uplift.

3      Criminal Procedure Act 2011, s 250(2).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

5      Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].

6      Tutakangahau v R, at [36].

7 At [36].

8 At [36].

9      Criminal Procedure Act 2011, s 250(3).

[31]Both counsel have referred me to case law.

[32]   In Turner v Police, the appellant breached a protection order by sending a text to his former partner.10 Mr Turner had 11 previous convictions for breaching protection orders. While the breach itself was not as serious as a physical assault, in the sentencing Judge’s view, “anyone with any basic understanding of the dynamics of domestic violence would know that it is as damaging as a physical assault to complainants of violence”.

[33]   On appeal, Brewer J reduced the starting point to 14 to 15 months' imprisonment, noting the offending was not malicious and that Mr Turner was “slowing down” in his offending.

[34]   In Carlyon v Police, the appellant was sentenced on two breaches of a protection order.11 The appellant twice entered the complainant’s house without her invitation and refused to leave while verbally abusing her. The sentencing Judge took a starting point of 18 months, with an uplift of six months for the appellant’s previous history.

[35]   Venning J held that the starting point was appropriate, considering the appellant’s prior history of breaching protection orders. He noted, however, that when applying an uplift for previous offending, a Judge must be careful not to double count the defendant’s convictions for breaching protection orders.

[36]   The appellant had what  Venning  J  described  as  “an  appalling  record  of 56 convictions for assault and trespass”. Venning J considered the uplift of six months was, however, too high when taken together with the starting point. He reduced the uplift to three months.

[37]   In Wratt v Police, the appellant was sentenced for two breaches of a protection order.12 The appellant had a history of offending towards the complainant and had breached the order on three separate occasions. For some unexplained reason, it seems

10     Turner v Police [2017] NZHC 1113.

11     Carlyon v Police [2017] NZHC 2526.

12     Wratt v Police [2018] NZHC 2477.

the appellant was living with the complainant in 2015. He would constantly interrogate her about contact she had with other people. This was the first breach. The second occurred while on EM bail for the first, when he sent her 100 text messages in a short period of time. The sentencing Judge took a starting point of 12 months’ imprisonment, which was upheld on appeal by Cull J.

[38]   Mr Quin also directed my attention to Cull J’s review of other breach of protection order cases in Wratt.13 I have also examined and considered these cases, but do not feel the need to reproduce them here.

[39]   Regarding the uplift, Mr Quin, I think,  accepts  that some adjustment  for  Mr Jackson’s criminal history is appropriate, but he submits that six months, in combination with the 14-month starting point, is manifestly excessive. He says this is double counting the previous breaches of the protection order.

[40]   The respondent submits the uplift is appropriate in light of Mr Jackson’s previous history for family violence-related offending and otherwise.

Discussion

[41]   After examining the cases referred to me, I can only conclude that sentences for breaches of protection orders vary to a large extent. Comparing one case to another is difficult, because this sort of offending is always highly contextual.

[42]   While one set of facts may look less severe compared to another, it may be that the offending in one, while a minor breach in or of itself, is significant in the context of the history between the defendant and the complainant.

[43]   It is for this reason that, when sentencing for breach of protection orders, prior convictions for breaches of protection orders are integral to the assessment of the gravity of the index offending and I cite here Carlyon v Police, Crean v Police and Mitchell v R.14

13 At [28].

14     Carlyon v Police [2017] NZHC 2526 at [20]; and Crean v Police [2015] NZHC 3203 at [16]. See also Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498 at [12].

[44]This also means it will be difficult to compare cases.

[45]   This case is somewhat different to those referred to me, in that the breach of the order is indirect. It involved, at least initially, Mr Jackson’s taking the children from their grandmother’s without the complainant’s consent, rather than direct contact with the complainant. He subsequently called and verbally abused her.

[46]   I agree with Judge Burnett, however, that the taking of the children in itself is clear psychological abuse. Given Mr Jackson’s previous history and his not telling the complainant where they were for a number of days, her distress and anxiety would have been significant.

[47]   I also consider this was deliberate, as he seems to have intentionally not contacted anyone until he heard of the Police being involved.

[48]   The Crown submits the fact Mr Jackson breached a parenting order is an additional aggravating feature of this offending, and I agree. I understand Mr Jackson was not charged in relation to that offending.

[49]   I also take into account Mr Jackson’s four prior breaches of a protection order, although I acknowledge that these were some time ago, being two each in 2015 and 2010.

[50]   Taking into account the offending, its context, and Mr Jackson’s prior breach history, I consider that the starting point of 14 months was somewhat stern, but not out of range.

[51]I move now to consider the uplift for previous convictions.

[52]   In cases of breaching a protection order, I agree with Mr Quin, a Judge must be careful to avoid the spectre of double counting when considering an uplift for previous offending. This is because previous breaches of protection orders are also relevant to the starting point, as I said earlier.

[53]   Leaving the breaches of the protection order aside, in terms of serious offending, Mr Jackson has three convictions for male assaults female, three convictions for wilful damage, and one for assaulting with intent to injure. All of these were family violence-related offending. As I have said, in respect of each, Mr Jackson was sentenced to terms of imprisonment.

[54]   The most recent term of imprisonment was in 2015 where Mr Jackson was sentenced as follows:

(a)Two breaches of protection order – eight months’ imprisonment.

(b)Male assaults female – six months’ imprisonment (concurrent).

(c)Unlawfully takes a motor vehicle – six months’ imprisonment (concurrent).

(d)Driving with excess breath alcohol – seven months’ imprisonment (concurrent).

[55]   As Ms Vaili submitted, in total Mr Jackson has 29 previous convictions and eight breaches of sentence as well as breaches of Court orders.

[56]   I do not have any information or record of any family violence-related call-outs regarding Mr Jackson. I regard it as somewhat unsatisfactory that this information was apparently not put before the District Court because I consider it can be significant in decisions such as this. Family violence case histories are seldom fully reflected in the standard criminal record.

[57]   In any event, considering Mr Jackson’s criminal history, leaving aside his breaches of protection orders, the uplift was again stern, but I consider it was within the range available to Judge Burnett.

Conclusion

[58]   I therefore concur with the sentence reached by the Judge and dismiss the appeal.

[59]   I would add, having read this file carefully, that one of Mr Jackson’s biggest problems is his inability to comply with Court orders, which he refers to as being “set up to fail”. In small part, he may be right, but not in large part. I am sure his children need him in their lives, and vice versa. He should try harder next time he comes out of prison to stay out.

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Hinton J