Johnson v Police

[2012] NZHC 2123

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2012-419-000033 [2012] NZHC 2123

BETWEEN  EDDIE JAMES  JOHNSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 August 2012

Appearances: J S Gurnick and G Prentice for Appellant

J M O'Sullivan for Respondent

Judgment:      22 August 2012

(RESERVED) JUDGMENT OF ANDREWS J

This judgment is delivered by me on 22 August 2012 at 12 noon pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:

Public Defender Northern, DX CX10005, Hamilton [email protected] [email protected]

R G Douch, Crown Solicitor, DX GP20023, Hamilton [email protected]

JOHNSON V NEW ZEALAND POLICE HC HAM CRI 2012-419-000033 [22 August 2012]

Introduction

[1]      The appellant has appealed against a sentence of three years nine months imprisonment imposed by Judge Connell in the District Court at Hamilton on 22

May 2012 (“the sentence”).1

Background

[2]      The appellant was sentenced after he pleaded guilty to charges laid in respect of offences committed on three occasions. Two of these involved assaults against his partner, in respect of whom a final protection order had been issued in the Rotorua District Court on 12 February 1998, while the third was a charge of driving with excess breath alcohol. The facts relating to the charges are set out below.

November 2011 offending

[3]      The appellant pleaded guilty to one charge of assault with intent to injure and one charge of breach of a protection order.

[4]      The appellant was getting ready for work in the early hours of the morning of

14 November 2011, and was not able to find his keys.   He woke the victim, demanding to know where the keys were.   The victim got out of bed to help the appellant find the keys.  The appellant kicked the victim in the left side of her ribs. He was wearing his work boots at the time.   The appellant also threw a block of cheese  at  the victim,  hitting her right  thigh.   The victim  suffered  a  “probable” fractured rib, and bruising.

[5]      The victim was able to walk away from the appellant, and went out of the house to help look for the keys.  The appellant followed.  He then located the keys, and locked the door to the house, locking the victim outside.  The appellant got into

his vehicle and left for work.

1      Police v Johnson DC Hamilton CRI-2012-019-357, 23 May 2012.

[6]      The appellant pleaded guilty to one charge of male assaults female,  one charge of breaching a protection order, and one charge of possession of cannabis.

[7]      The appellant was at his home address on 17 January 2012.   The victim arrived home and a verbal argument developed outside the house.   The appellant kicked the victim in the area of her ribs.  This caused her to fall backwards and hit a wooden stump on the ground.  The victim managed to stand up and walk inside the house.  The appellant then grabbed her by her hair and began waving her head back and forth. The victim managed to break free and left the house.

[8]      The victim returned a few hours later.  The appellant kicked her again in the rib area, causing her to fall back and knock over a television set.  The appellant then began verbally abusing the victim.   The victim left the house and went to a neighbour’s house.   The victim suffered bruising and sore ribs as a result of this incident.

[9]      The appellant returned early in the morning of 18 January 2012.  The victim was asleep.   The appellant picked up a can of fly spray and sprayed around the victim for about three seconds, causing her to wake up.   The victim went to a neighbour’s house and called the Police.

[10]     The  Police  attended  at  the  address,  and  after  speaking  to  the  appellant, conducted a search pursuant to s 18(2) of the Misuse of Drugs Act 1975. They found three cannabis plants growing in a bedroom of the house.  The appellant admitted to owning the cannabis plants, but said in relation to the assault that his partner had attacked him.

Excess breath alcohol offending

[11]     On 29 January 2012 the appellant was stopped by Police conducting mobile breath.  The appellant exhibited signs of recent alcohol consumption.  An evidential breath test returned a level of 955 micrograms of alcohol per litre of breath.

[12]     The appellant had two previous convictions (in April 2001 and August 2004) for breaching a protection order; three previous convictions for male assaults female (in April 2001, September 1999, and November 1994); one conviction for common assault (domestic) (in January 1999); and convictions for resisting Police (in April

2001 and August 2000), escaping from Police custody (in January 1998), and assault on Police (in November 1994).

[13]     The  appellant’s  conviction  on  the  charge  of  driving  with  excess  breath alcohol was his sixth such conviction.  The appellant also had previous convictions for dishonesty offending, and 13 previous convictions for breaching orders of the Court.

[14]     At the time of his sentencing on 22 May 2012, the most serious sentences imposed  for  similar  offending  were  a  sentence  of  three  months  imprisonment imposed in December 1999, on a charge of male assaults female (for offending in September 1999) and a sentence of two months imprisonment imposed at the same time on a charge of driving with excess breath alcohol.2

District Court sentencing

November 2011 offending

[15]     The Judge took the charge of assault with intent to injure (the November

2011 offending) as the lead offence.   He considered this to be serious offending. After noting the maximum term of imprisonment provided for such offending (five years) and referring to the judgment of the Court of Appeal in R v Harris,3 the Judge

adopted a starting point of two years imprisonment.4

2      On that occasion the appellant was also sentenced to six months imprisonment on a charge of burglary. The sentence appears to have been cumulative upon the other sentences, resulting in an effective sentence of nine months imprisonment.

3      R v Harris [2008] NZCA 528.

4 Sentence, at [8].

[16]     The  Judge  then  applied  an  uplift  of  six  months  to  take  account  of  the appellant’s previous convictions, to arrive at an adjusted starting point of two years six months.   The Judge then applied a discount of ten months (one third) for the appellant’s guilty plea (which was acknowledged to have been made at an early stage) to arrive at an end sentence of 20 months imprisonment.5

[17]     For the breach of the protection order in the November 2011 offending, the Judge  adopted  a  starting  point  of  eight  months  imprisonment,  then  allowed  a discount of two months (25 per cent) for the appellant’s guilty plea.   The Judge ordered that the resulting sentence of six months imprisonment was to be served

concurrently with the sentence of 20 months imprisonment.6

January 2012 offending

[18]     The Judge adopted a starting point of 12 months imprisonment on the charge of male assaults female, for which the maximum available sentence is imprisonment for two years.  The Judge then applied an uplift of six months to take account of the appellant’s previous convictions, to reach an adjusted starting point of 18 months imprisonment.  The Judge allowed a discount of five months (approximately 28 per cent) for the appellant’s guilty plea,  to arrive at an end sentence of 13 months imprisonment, which the Judge ordered to be served cumulatively upon the sentence

of 20 months imprisonment imposed for the lead offending.7

[19]     For the breach of the protection order in the January 2012 offending the Judge adopted a starting point of nine months imprisonment, and allowed a discount of three months imprisonment (one third) for the appellant’s guilty plea.  The Judge directed that this sentence be served concurrently with the sentence of 13 months

imprisonment.8

5 At [9].

6 At [10].

7 At [11].

8 At [12].

[20]   For the charge of possessing cannabis the appellant was convicted and discharged.9

Excess breath alcohol offending

[21]     The maximum available penalty on conviction for driving with excess breath alcohol is imprisonment for two years, plus a mandatory disqualification of not less than one year.  The Judge noted that this was the appellant’s sixth such conviction, and adopted a starting point of 18 months imprisonment.  The Judge then allowed a discount of six months for the appellant’s guilty plea and “to take account of the principle of totality”, to arrive at an end sentence of 12 months imprisonment, which he ordered to be cumulative upon the male assaults female sentence.  The Judge also disqualified the appellant from holding or obtaining a drivers licence for two years,

and imposed an indefinite disqualification.10

[22]     The overall sentence of imprisonment imposed was, therefore, 20 months (for the November 2011 offending), plus 13 months (for the January 2012 offending), plus 12 months (for the excess breath alcohol charge); that is, three years nine months imprisonment.

Appeal

[23]     The appellant’s appeal was on the grounds that:

(a)       the two year starting point for the lead offending (assault with intent to injure) was manifestly excessive;

(b)      the total uplift applied for the appellant’s previous convictions (12

months) was manifestly excessive; and

(c)       the Judge failed to have sufficient regard for the totality principle when he imposed a cumulative sentence of 13 months imprisonment

on the male assaults female charge.

9 At [14].

10     At [13] – [14].

[24]     The appellant did not challenge the Judge’s decision to impose cumulative sentences for the two assault charges but, as noted above, challenged the Judge’s application of the totality principle when doing so.  The appellant did not raise any issue as to the sentence imposed for the excess breath alcohol offending, or to the fact that that sentence is cumulative upon the sentences for the assault offending.

Was the two year starting point for the sentence for assault with intent to injure manifestly excessive?

Submissions

[25]     For  the  appellant,  Mr  Gurnick  submitted  that  the  starting  point  for  this offending should have been 12 months rather than two years.   In support of that submission, he referred to the judgments in R v McRoy,11 Taingahue v Police,12   Teka

v Police,13  Te Whata v Police,14  and Finiki v Police,15  in each of which starting

points adopted in the District Court were reduced on appeal.  He submitted that when the facts of the present case are compared with those authorities, it can be seen that a starting point of 12 months was appropriate for the appellant’s offending.

[26]     For the respondent, Ms O'Sullivan submitted that the starting point adopted by the Judge was appropriate.  She submitted that the Judge appropriately referred to the  judgment  of  the  Court  of Appeal  in  Harris,16   which,  although  setting  out guidelines for the sentences for the offence of injuring with intent to injure, is of assistance in fixing a starting point for the lesser offence of assault with intent to injure.

[27]     Ms O'Sullivan submitted that when fixing the starting point for the lead offending, the Judge took into account both the circumstances of the assault, and the fact that the appellant was breaching a protection order.  That is, she submitted that the starting point for the lead offending incorporated an uplift for the breach of the

order.  Ms O'Sullivan then referred to appellate judgments relating to sentencing for

11     R v McRoy CA261/06, 12 October 2006.

12     Taingahue v Police HC Wellington CRI-2009-485-75, 17 August 2009.

13     Teka v Police HC Auckland CRI-2009-404-253, 7 September 2009.

14     Te Whata v Police HC Auckland CRI-2011-404-135, 1 August 2011.

15     Finiki v Police HC Christchurch CRI-2011-409-38, 3 June 2011.

16     Above, n3.

breaches of a protection order, and  assault with intent to injure, or where both offences were present:  R v Nathan,17 R v Tucker,18 R v Ruru,19 Hayward v Police,20

Tenboom v Police,21 and Teka v Police.22

[28]     Ms  O'Sullivan  submitted  that  it  is  always  possible  to  find  sentencing judgments which support either side of an appeal, but when the circumstances of the appellant’s offending, the extent of the injury suffered, and the fact that the appellant was breaching a protection order are taken into account, a starting point of 12 months would be manifestly inadequate, and a starting point of two years was within the available range.

Discussion

[29]     As is obvious from the above summary of counsel’s submissions,  I was referred to a large number of decisions relating to sentencing for assault with intent to injure.   On appeal, this Court’s task is to assess whether the starting point was within the available range for the offending.  That assessment requires consideration of the nature and extent of the injury caused to the victim, the offender’s intent, and of “the effect that any additional aggravating and mitigating features have on the

seriousness of the conduct and the criminality involved”.23

[30]     It is neither necessary, nor helpful, to enter into a minute dissection of the facts and circumstances of previous cases.  In the present case, it is apparent from the facts set out by the Judge that:

(a)       The victim was the appellant’s partner.

17     R v Nathan CA209/06, 29 November 2006.

18     R v Tucker CA330/07, 6 May 2008.

19     R v Ruru CA164/04, 30 August 2004.

20     Hayward v Police HC Wanganui CRI-2008-483-1, 22 February 2008.

21     Tenboom v Police HC Hamilton CRI-2007-419-15, 7 February 2007.

22     Above, n13.

23     Harris, above n3 at [11].

(b)      The victim had the benefit of a protection order against the appellant.

A protection  order  “is  to  ensure  that  the  recipient  is  secure  and inviolate”.24

(c)      The appellant’s offending against the victim comprised kicking her in the left side of the ribs.  At the time he was wearing work boots.  He also threw a block of cheese at her, hitting her right side.

(d)      The victim was treated at a medical centre for her injuries.    She

suffered a “probable” fractured rib, and bruising.

[31]     It is apparent from the Judge’s sentencing notes that no uplift was given for the breach of the protection order, although a concurrent sentence was imposed for that breach.  In Nathan,25   the Court of Appeal accepted a submission that “repeated breaches of protection orders calls for a condign sentencing response”.  In Tucker,26 the Court of Appeal upheld a sentence of 12 months imprisonment for breach of a

protection order.

[32]     I accept Ms O'Sullivan’s submission that an uplift could have been applied to the starting point for the charge of assault with intent to injure, to account for the totality of the offending covered by the concurrent sentences.   Alternatively, the breach of the protection order could certainly be regarded as a serious aggravating feature of the appellant’s offending.

[33]     Having  had  regard  to  all  of  the  circumstances  of  the  appellant,  and  his offending, I am not satisfied that the starting point of two years imprisonment for sentencing on the charge of assault with intent to injure was excessive, let alone

manifestly excessive.

24     See R v Cartwright CA175/02, 28 August 2002 at [21].

25 Above, n 17 at [25].

26     Above, n 18.

Were the uplifts for the appellant’s previous convictions manifestly excessive?

Submissions

[34]     As noted earlier, the Judge applied an uplift of six months to the starting points  for  sentencing  on  each  of  the  charges  of  assault  with  intent  to  injure (November 2011), and male assaults female, (January 2012).

[35]     Mr Gurnick submitted that the overall effect was that an uplift of 12 months imprisonment   was   applied   to   the   combined   starting   point   of   three   years imprisonment, to take account of the appellant’s previous convictions.  Mr Gurnick submitted that, as the most recent of the appellant’s previous assault convictions was in 2001, and the most recent of his convictions for breaching protection orders was in 2004, the previous convictions were too historic to justify any uplift, at all.  He further submitted that, in the event that an uplift was required, it should be no more than three months, in all.

[36]     Ms  O'Sullivan  submitted  that  the  uplift  of  (effectively)  one  third  of  the starting point for the two charges of assault was justified, when looked at against:

(a)       the  appellant’s  pattern  of  previous  offending,  including  previous offending against the same victim;

(b)      the discounts given for the appellant’s guilty pleas; and

(c)       the  fact  that  the  appellant  was  convicted  and  discharged  on  the cannabis charge.

[37]     Ms O’Sullivan further submitted that the discounts for the appellant’s guilty pleas were in fact generous, in light of the fact that the guilty pleas were not entered until the appellant’s fourth appearance in Court.

Discussion

[38]     In any sentencing, the current offending must be the primary consideration. However,  previous  convictions  may  be  taken  into  account  as  an  indicator  of character  and  culpability,  because  they  show  the  need  for  a  greater  deterrent response, and as an indicator of a risk of re-offending.   The type, frequency, and seriousness of the previous convictions, and the length of time that has elapsed since the last conviction, will affect the weight to be given to the previous convictions.27

[39]     Previous convictions may be treated as aggravating personal features, leading to an uplift from the starting point, or as a component of the starting point, as being relevant to the assessment of what sentence is required to meet the purposes of deterrence and community protection, and to the assessment of the offender’s culpability, pursuant to ss 7 and 8 of the Sentencing Act. As the authors of Adams on Criminal Law – Sentencing observe, “whichever approach is taken, care must be

taken to avoid double counting”.28   Other than to note that the appellant had previous

convictions for assault and “driving while drunk”,29  the Judge did not give any reasons for applying an uplift of six months to the starting points for each of the November 2011 and January 2012 assault charges.   Having reviewed the previous convictions, I accept Mr Gurnick’s submission that the uplifts are manifestly excessive and, in being applied to each of the two starting points, appear to involve an element of double counting.

[40]     However,  I  do  not  accept  Mr  Gurnick’s  submission  that  no  uplift  was required, at all.  While the previous assault convictions were some years ago, they indicate a pattern of violent offending against the appellant’s partner, and indicate the need for a deterrent sentence.   An uplift was required for that purpose.   Having regard to the appellant’s offending, and the previous convictions, a total uplift of six

months on the starting points for the charges of assault was appropriate.

27     See Bruce Robertson (ed) Adams on Criminal Law – Sentencing (looseleaf ed, Brookers) at

[SA9.15].

28     At [SAC 2].

29 Sentence, at [6].

Did the Judge fail to have regard to the totality principle?

Submissions

[41]    While Mr Gurnick acknowledged that the Judge was entitled to impose cumulative sentences for the November 2011 offending, the January 2012 offending, and the excess breath alcohol charge, he submitted that the Judge failed to have regard to s 85(2) of the Sentencing Act.     He submitted that the total period of imprisonment imposed was wholly out of proportion to the appellant’s overall offending.

[42]     Ms O'Sullivan submitted that the Judge’s approach of imposing cumulative sentences for the separate incidents of offending was appropriate.   She further submitted that when the end sentences imposed are considered as a whole, the total sentence was within the available range, and is not manifestly excessive.

Discussion

[43]     The appellant was sentenced on three quite separate incidents of offending, for  which  cumulative  sentences  were  appropriate,  under  ss 83  and  84  of  the Sentencing Act.  Section 85(2) of the Act provides that where cumulative sentences are imposed, they “must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

[44]     In R v Xie the Court of Appeal said:30

[16]      The  fundamental  tenet  of  the  totality  principle  is  that  the  final sentence must reflect ‘the totality of the offending’.  How the total sentence is made up has never been important.  We cite what this Court said in R v Williams, (Court of Appeal, CA79/00, 90/00 and 91/00, 31 May 2000) at para [11]:

“We reject the argument that there is a particular way in which total sentences must be put together in respect of multiple offending.  The issue is what is an appropriate total sentence for the various charges which have been admitted or proved.  How that is constructed in the particular  circumstances  is  a  matter  of  individual  discretion  and

30     R v Xie [2007] 2 NZLR 240, at [16] – [18].

assessment.  Sometimes there is advantage in imposing cumulative sentences on some or all of the charges, whereas others are more appropriately dealt with by one major sentence which subsumes all matters, with concurrent sentences imposed.”

[17]     That passage from Williams was cited with approval in R v Barker, (Court of Appeal, CA57/01, 30 July 2001).  In that case this Court, at para [10] reiterated the key principles when sentencing for multiple offending:

(a)       With multiple offences the sentence must reflect the totality of the offending.

(b)      In respect of multiple offences, this Court will not insist that the total sentence be arrived at in any particular way.

(c)       The  total  sentence  must  represent  the  overall  criminality  of  the offending and the offender.

[18]     Those principles survive the enactment of the Sentencing Act and, indeed, are endorsed by it.  Having endorsed it, Parliament then goes on in ss 84  and  85  to  describe  when  concurrent  sentences  and  cumulative sentences “are generally appropriate”.  The guidelines do not have the effect of  trumping  the  central  principle  of  sentencing  for  multiple  offending, namely that the total sentence must represent the overall criminality of the offending and the offender.

[45]     The appellant’s sentence comprised three cumulative sentences leading to an end sentence of three years nine months imprisonment.  I have found, above, that the uplifts  applied  to  the  starting  points  for  the  November  2011  and  January 2012 offending were manifestly excessive, and that a total uplift of six months (which I consider should have been imposed on the starting point for the November 2011 offending, only) was appropriate.  That would lead to a total sentence of three years three months imprisonment,   made up of 20 months (November 2011 offending), seven months (January 2012 offending), and 12 months (excess breath alcohol offending).

[46]     Looked at in totality, is a sentence of three years three months imprisonment appropriate, and in proportion to the gravity of the appellant’s overall offending?  I am satisfied that it is.  The offending reflected in the two assault charges was serious and had the particular aggravating features referred to earlier.31     That offending

required appropriate deterrent sentences.   The breath alcohol offending, being the

31 Above, at [30].

appellant’s sixth such conviction, was also serious offending, and also required an appropriate deterrent sentence.

[47]     In  the circumstances,  I am  satisfied  that  a  sentence of  three  years three months imprisonment is not wholly out of proportion to the gravity of the appellant’s overall offending.

Result

[48]     The appellant’s appeal against sentence is allowed, in that the sentence of 13 months imprisonment imposed on the charge of male assaults female is quashed, and a sentence of seven months imprisonment imposed in its place.  In all other respects,

the sentences imposed in the District Court are confirmed.

Andrews  J