JAMES LOUIS MACEWAN AND NEW ZEALAND POLICE
[2019] NZHC 3320
•13 December 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-000428
[2019] NZHC 3320
BETWEEN JAMES LOUIS MACEWAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 December 2019 Appearances:
A Spika and G Vear for the Appellant
K Tuiali and A Masters for the Respondent
Judgment:
13 December 2019
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Friday, 13 December 2019 at 4.00 pm
Registrar/Deputy Registrar
Solicitors / Counsel:
Public Defence Service, Auckland
Meredith Connell (Office of the Crown Solicitor), Auckland
MACEWAN v NEW ZEALAND POLICE [2019] NZHC 3320 [13 December 2019]
[1] On 19 March 2019, James Louis MacEwan pleaded guilty to one charge of male assaults female. He subsequently pleaded guilty to two charges of failing to answer District Court bail.
[2] On 30 September 2019, he was sentenced to 10 months’ imprisonment on the charge of male assaults female. He was convicted and discharged on the two charges of failing to answer District Court bail. Mr MacEwan now appeals against the sentence of 10 months’ imprisonment.
Facts of offending
[3] Mr MacEwan and the victim were in a relationship. At the time of the offending, they lived together in Morningside. The offending occurred at around 7:45 pm on 26 November 2018. The victim was asleep in her downstairs room. Mr MacEwan launched an unprovoked attack on her, whipping her multiple times with a piece of clothing to her face. The victim woke up and fled to a neighbouring flat.
[4] Mr MacEwan followed her to the flat and began knocking on the door. After about 30 minutes, the victim returned to their flat to speak with him. He became aggressive towards the victim again. She attempted to leave, but he placed her in a head lock. He dragged her to the floor and held her in the head lock for about two minutes.
[5] The victim bit Mr MacEwan and again attempted to leave, but he blocked her escape.
[6] In her Victim Impact Statement, the victim writes that she has had enough. She says that Mr MacEwan has always treated her poorly, and that he needs to understand that he cannot do this anymore.
Decision on appeal
[7] Mr MacEwan appeared before Judge Ronayne for sentence on 30 September 2019.1
1 Police v MacEwan [2019] NZDC 19467.
[8] Judge Ronayne identified the aggravating factors as being a serious, ongoing, persistent assault on a vulnerable victim. He noted the continued detention of the victim. He also noted that the attack was to the victim’s head.
[9] Judge Ronayne adopted a starting point of nine months’ imprisonment for the male assaults female charge. He considered that Mr MacEwan’s remorse was late and unbelievable, and that he had shown no regard for the process involved. In recognition of Mr MacEwan’s “personal behaviour throughout this matter and the delays that that has occasioned”, as well as his criminal history, he added an uplift of three months’ imprisonment.
[10] A discount of two months was applied for Mr MacEwan’s guilty plea and so the end sentence imposed was 10 months’ imprisonment.
Submissions
[11] Mr Spika advances three grounds of appeal. He submits that Judge Ronayne erred in adopting a manifestly excessive starting point, applying an uplift that was too high, and failing to provide credit for remorse.
[12] In relation to the starting point, Mr Spika draws attention to Wawatai v Police, and Police v Vuetaki.2 He submits that Mr MacEwan’s offending is comparable in gravity to the offending in those cases. He draws attention to the starting point of seven months’ imprisonment adopted in Wawatai, and the community work sentence imposed in Vuetaki. Accordingly, he submits that an appropriate starting point would have been six months’ imprisonment.
[13] On the issue of uplift, Mr Spika submits that an uplift for the appellant’s breaches of bail conditions, failures to appear, and prior convictions was inappropriate. He submits that the breaches caused no delay to the proceeding. In relation to the failures to appear, Mr Spika notes that Mr MacEwan was convicted and discharged for those offences. He submits that at most, those charges may be worthy of a one month uplift.
2 Wawatai v Police [2015] NZHC 406; Police v Vuetaki [2016] NZHC 2515.
[14] He also submits that Mr MacEwan has no relevant violent convictions. Accordingly, he submits that no uplift for Mr MacEwan’s criminal history was appropriate.
[15] Finally, Mr Spika submits that Mr MacEwan has displayed genuine remorse. In support he points to the Provision of Advice to Courts (PAC) report, as well as a letter which Mr MacEwan provided to the court. He submits that a discount of one month was appropriate.
[16] Accordingly, he submits that an end sentence of four to five months’ imprisonment would have been appropriate.
[17] The Crown submits that the sentence imposed was well within the acceptable range. The Crown submits that Mr MacEwan’s offending was akin to offending in Kelly v R, and in Parsons v Police, where a nine month starting point on a male assaults female charge was adopted.3 The Crown submits that the cases referred to by the appellant are distinguishable, and that Mr MacEwan’s offending warrants a higher starting point than was adopted in Wawatai and in Vuetaki.
[18] On the issue of uplift the Crown submits that three months was stern, but within an acceptable range. The Crown draws attention to Mr MacEwan’s failure to answer bail on three occasions, and that he had been arrested and brought before the court for breaching bail on eight other occasions. The Crown acknowledges that these breaches did not delay the proceeding, but submits the appellant’s failure to appear did. The Crown acknowledges that Mr MacEwan has no prior violent convictions, but submits that he does have convictions from 2017, which justify a modest uplift to reflect the principle of deterrence against future offending.
[19] The Crown also submits that Judge Ronayne was right to refuse to give a discount for remorse. The Crown draws attention to the judge’s comments, describing the letter supposedly demonstrating remorse as “late”, and “unbelievable”. The Crown submits that on evaluation of all the circumstances; the breaches of bail and
3 Kelly v R [2018] NZCA 347; Parsons v Police [2018] NZHC 2214.
the comments to the PAC report writer, that Mr MacEwan showed little genuine remorse. Accordingly, no discount for remorse was available.
Decision
Approach on appeal
[20] The appeal is brought under s 250 of the Criminal Procedure Act 2011. It provides:
250 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section
(2)The first appeal court must allow the appeal is satisfied that–
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
(3)The first appeal court must dismiss the appeal in any other case.
[21] An appeal court must allow an appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should have been imposed. Whether a sentence is manifestly excessive is examined in terms of the end sentence reached, rather than through the process by which it was reached.4
Personal circumstances and reports
[22] Mr MacEwan is a 36 year old man, of Tuhoe descent on his father’s side and Scottish on his mother’s. He has a limited criminal history of 32 convictions. Possession of methamphetamine or drug utensils features. As do failures to appear and breaches of community work. This is his first conviction for violent offending.
[23] A PAC report has been provided. It is dated 23 September 2019. The writer assesses him as having a medium risk of re-offending based on the number and frequency of his previous offences.
4 Tutakangahau v R [2014] NZCA 279 at [36].
[24] In his interview with the writer, Mr MacEwan described the victim as a violent woman and said that he was defending himself. He had said that at one stage she threw a glass vase at him and came at him with a knife. Later in the interview he had said that he was not proud of himself, and that he believes “women should be placed on a pedestal and a man has no right to do what I did, whatever the provocation”.
[25] The writer noted that Mr MacEwan’s offending related factors were entitlement and methamphetamine. Mr MacEwan indicated to the writer that he has been unemployed for the last few years. He believes that this is due to his intermittent drug problems. He also indicated that his father, who lives in Australia, has terminal cancer. This, he says, is what caused him to begin using methamphetamine recently.
Analysis
[26] There is no guideline judgment for male assaults female cases. Each must be considered on its own facts.5
[27] The first case which Mr Spika draws attention to is Wawatai v Police.6 Mr Wawatai had been convicted of one charge of male assaults female. The offending arose from an incident at Mr Wawatai’s house with his partner. He had been drunk. During an argument, he punched his partner in the face with a closed fist. One of his family members was present, and tried unsuccessfully to take him aside. Mr Wawatai attempted unsuccessfully to land further punches. His partner suffered a blood nose and swelling. Courtney J considered that an appropriate starting point would have been seven months’ imprisonment.
[28] Mr Spika also draws attention to Police v Vuetaki.7 Mr Vuetaki had also been convicted of male assaults female. He and his wife had been arguing at their home. The victim had been holding their nine-month old daughter. Mr Vuetaki pushed a wooden highchair which struck the victim’ feet. He then advanced on her, yelling at her. He slapped her on her left cheek and ear, then grabbed their daughter from her.
5 Kelly v R [2018] NZCA 347 at [10].
6 Wawatai v Police [2015] NZHC 406.
7 Police v Vuetaki [2016] NZHC 2515.
This caused the victim to fall to the ground. He clipped her on the back of the head with his open hand.
[29] The two continued their argument in the bathroom. The victim slapped Mr Vuetaki on his face. He then slapped her. After more arguing, the victim attempted to leave the address. Mr Vuetaki grabbed her left wrist, pushed her into some bushes and restrained her for a short period of time until she accepted his apology. When they went back home, he clipped her on the head once more. The sentenced imposed at first instance was 130 hours’ community work, which was not disturbed on appeal.
[30] I do not consider this case to be particularly helpful. First, that it was a prosecutor’s appeal. A prosecutor’s appeal requires circumstances which are more compelling than those which might justify a reduction.8 Second, even with this in mind, Gendall J still considered the appeal to be a “finely balanced one”,9 later agreeing with counsel that the sentence was “merciful”.10 It is also important to note the unique personal circumstances of Mr Vuetaki, in that he was to be imminently deported back to Fiji away from his family.
[31] The first case relied upon by the Crown is R v Kelly.11 Mr Kelly had been charged with a raft of violent offences against his partner. Included were two charges of male assaults female. Mr Kelly had been arguing with his partner. He headbutted her. The victim left, and later returned expecting an apology. Instead, she was again headbutted, apparently twice as hard as the previous one. The victim stated that she “saw stars”. The sentencing judge adopted a starting point of nine years’ imprisonment each on the male assaults female charges. On appeal, Mr Kelly argued that the starting points adopted on the male assaults female charges was too high. The Court of Appeal dismissed the appeal, remarking that he was fortunate to have the headbutts charged as male assaults female, and note the potential for a headbutt to cause serious injury, particularly when the assailant is much larger than the victim.12
8 R v Wihapi [1976] 1 NZLR 422 (CA).
9 Police v Vuetaki [2016] NZHC 2515at [10].
10 At [21].
11 Kelly v R [2018] NZCA 347.
12 At [11].
[32] The Crown also refers to Goodman v R.13 Mr Goodman was convicted of assault with intent to injure and male assaults female. The charges arose out of an argument which Mr Goodman had with his partner. He grabbed her around the throat and threw her across the room. When she tried to get to her feet he pushed her over. This assault continued until he pushed her outside. This gave rise to the first charge. The second arose from what happened outside. Mr Goodman pushed her, knocking her over. He then kicked her to the shoulder. The victim fled to the car and attempted to call the police. Mr Goodman tried to get into the car. The sentencing judge dealt with the male assaults female charge through a 12-month uplift, which was reduced for totality. The sentence was not disturbed on appeal. However, whether the 12- month uplift would have been appropriate was not discussed.
[33] Finally, the Crown refers to Parsons v Police.14 Mr Parsons was sentenced on three charges of male assaults female. The victim was Mr Parsons’ partner.
[34] At the time of the first attack, the victim was asleep in her bed. Mr Parsons woke her up, and eventually began verbally abusing her. The victim tried to leave. Mr Parsons pushed her in the chest, causing her to fall backwards. He punched her in the jaw, causing her to fall back against a wall. He then grabbed her arm causing her to drop her keys. The victim fled the room. When she came back to get her keys, Mr Parsons punched her in the face, knocking her to the floor. This attracted a starting point of nine months’ imprisonment.
[35] About a month later, the two were on a public street. They began to argue. They struggled over an EFTPOS card, and the victim fell to the ground. When she got up, Mr Parsons punched her once in the head, causing her to fall back to the ground. This attracted a starting point of six months’ imprisonment.
[36] The third assault was four days later. The two were on a trip to Wanaka from Dunedin. On the way back to Dunedin they visited an Information Centre to use the internet. They had an argument. The victim hit Mr Parsons. He retaliated by pinning
13 Goodman v R [2016] NZCA 64.
14 Parsons v Police [2018] NZHC 2214.
her against a wall and striking her with a closed fist. She broke free and fled to a neighbouring business. This attracted a starting point of nine months’ imprisonment.
[37] On appeal, Mander J considered that the starting points taken could be considered generous. He did not consider that the overall sentence should be disturbed, and dismissed the appeal.
[38] Considered alongside the cited cases, I consider an appropriate starting point for Mr MacEwan’s offending would have been seven months’ imprisonment. His offending was about on par with that of Mr Wawatai, but less serious than that of Mr Kelly and Mr Parsons, which incurred a nine-month starting point.
[39] It is important to note that Mr MacEwan’s offending began with whipping her face with a piece of clothing. This is less serious than closed fist punches to the face, and headbutts, to which counsel refer. Whilst I acknowledge that holding of the victim in a headlock is serious, I do not consider that this was a particularly brutal attack. This is reflected in the minimal injuries to the complainant. That warrants recognition and is immediately a point of distinction from Messrs Wawatai, Kelly and Parsons.
[40] However, the prolonged nature of Mr MacEwan’s attack also warrants recognition. His persistence in following her after she had originally left would have been a frightening ordeal for the victim. Despite the comparative lack of brutality, I consider that this factor justified a starting point equivalent to that imposed on Mr Wawatai.
[41] On the issue of uplift, I also agree with Mr Spika. Judge Ronayne uplifted the sentence by three months, on a starting point of nine months, to reflect Mr MacEwan’s personal behaviour; delays that had occasioned, and his prior criminal history.
[42] I do not consider an uplift was warranted for MacEwan’s personal behaviour and delays. Judge Ronayne imposed the uplift under s 9(1)(k) of the Sentencing Act 2002. Although Mr MacEwan breached his bail conditions on numerous occasions, there was very little delay in the disposition of the proceedings. On 8 January 2019, he failed to appear, but was arrested three weeks later and brought before the Court.
There was also a delay of one week when he came to Court on 27 August 2019, but chose to leave before his case was called. He was arrested on 3 September 2019 and remanded in custody for sentence on 30 September 2019. Judge Ronayne convicted and discharged Mr MacEwan on two charges of failing to appear.
[43] Mr MacEwan does not have a relevant criminal history. This is his first conviction for violent offending. What he has, are convictions for breaches of supervision orders, community work, and failures to answer bail. He has a few convictions for dishonesty offences. Most worryingly are the convictions relating to the possession of methamphetamine. But these do not justify an uplift for deterrent purposes. What this suggests is that violent offending is out of character for Mr MacEwan. I therefore do not consider that his criminal history warranted an uplift.
[44] On the issue of genuine remorse, I consider that Judge Ronayne’s assessment should not be disturbed. He was in a better position to assess how Mr MacEwan reacted. I agree that the letter presented by Mr MacEwan, when seen in the context of his previous statements, could be seen as manipulative at worst and late at best. I consider it was open to Judge Ronayne to refuse a discount for remorse.
[45] In summary, I consider that the starting point adopted in the District Court was too high. Additionally, an uplift was not warranted.
[46] The appropriate starting point was seven months’ imprisonment. With the lowered starting point, the removal of the uplift, and the 15 per cent discount for the guilty plea, the appropriate end sentence is six months’ imprisonment.
Result
[47]The appeal is allowed.
[48] The District Court sentence is quashed. In its place, I impose a sentence of six months’ imprisonment on the charge of male assaults female.
Woolford J
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