Judson v Police

[2018] NZHC 110

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-419-80 [2018] NZHC 110

BETWEEN

MICHAEL JAMES JUDSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	8 February 2018
Counsel:	L Walkington for Appellant T Needham for Respondent
Judgment:	13 February 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 13 February 2018 at 2.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Crown Solicitors, Hamilton

JUDSON v POLICE [2018] NZHC 110 [13 February 2018]

[1]      Mr Judson was sentenced to 3 years six months’ imprisonment on charges of cruelty to an animal, wilful damage, male assaults female (x2), assault with intent to injure, wilfully attempting to pervert the course of justice and threatening to kill. He now appeals against this sentence.

Background

[2]      I adopt the description of the offending made by Judge M L S F Burnett which is not challenged:

[2]       The defendant, you Mr Judson, and the victim are in a relationship and the first offence in time relates to 21 May 2017. You and the victim were at  home. You  have  young  children. Your  six-year-old  was  present. You punched the victim in the back of the head four or five times with enough force that your left hand broke. The victim suffered a large lump on the back of her head and a swollen ear so that is the damage you inflicted on her on that occasion.

[3]       The next charge is cruelty to an animal and male assaults female on 5

June 2017. You again were at home with the victim and a puppy was also present. You placed your hands around the puppy’s throat to pick it up and you carried it this way to the back door where you threw the puppy out. When the victim confronted you about this, you then punched her numerous times on the arm and you inflicted bruising to her arm as a result.

[4]       The next occasion is male assaults female and the wilful damage charge. On 12 June, you punched the victim twice in the back as she was lying in bed. When she tried to get up and get away, you kicked her in the leg and this caused her to fall over. When she put some clothes into her car to leave, you went out to the car and hit it with a broom which left a dent in the car.

[5]       Between 8 and 14 July you spoke to the complainant, coaching her to give an alternative version as to what had occurred so that when she was to give evidence in Court she would not be telling the truth and the accuracy about what you had done to her, but rather give an innocent version about these charges. Also, you thought that she would sign a letter to a Justice of the Peace.

[6]       On 26 July finally you had been remanded in custody and you made a call to the victim which you were not authorised to do. You got another prisoner to call an approved number and then transferred the call to the victim and then you spoke to the victim, telling her that you would kill her and the dog if she let anyone touch her.

[3]      In fixing sentence for this offending, Judge Burnett adopted a 20 month start point for the male assaults female/intent to injure charges. She added 18 months for the perverting the course of justice charge and a further combined 12-month uplift for

the cruelty to animal and wilful damage offending, for previous convictions for domestic violence, and for offending while on release conditions for similar offending. This resulted in a cumulative start point of 50 months. The Judge discounted this start point by 20 per cent for guilty pleas. In the result an end sentence of 3 years six months was imposed.

Jurisdiction

[4]      Section 250(2) of the Criminal Procedure Act 2011 states that I may allow an appeal if for any reason there was an error in sentence imposed on conviction and a different sentence should be imposed. A sentence that is manifestly excessive may be

set aside pursuant to this jurisdiction.   Whether it is manifestly excessive is to be examined in terms of the sentence given, rather than by the process it is reached.1

Grounds of Appeal

[5]      The  grounds  of  appeal  set  out  in  Mr  Sutcliffe’s  written  argument  were succinctly stated:

(a)      The Judge effectively double counted the significance of the fact that Mr Judson offended while subject to release conditions and, in the case of the perverting charge, while on bail;

(b)      The Judge failed to acknowledge the totality principle; and

(c)      A 50-month sentence over reaches the culpability of the offending, having regard to R v Richardson2  and Sharma v R,3  which involved more serious offending. The sentences imposed in those cases were 12 months (which became 6 months’ home detention) and 30 months

respectively.

1      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [31]-[33].

2      R v Richardson [2012] NZHC 1465.

3      Sharma v R [2017] NZHC 2925.

[6]      Ms Walkington, counsel acting on instructions, substantially expanded on these grounds, referring to argument and authorities4 raised in the District Court and further Court of Appeal authority not previously cited in written submissions. In substance, Ms Walkington submits the start points were individually and cumulatively manifestly excessive by reference to these authorities.

[7]      Ms Needham responds:

(a)      The starting point in the range of 2 years three months and 2 years six months could have been adopted, rendering moot the complaint about the uplift of 18 months for the perverting the course of justice.

(b)The Judge was wrong to assume Mr Judson was on bail, but it makes no material difference, because he was in custody at the time.

(c)      The approach taken by the Courts in Sharma and Coombs with comparable, though not identical offending, vindicates the present uplifts. In those cases, start points of 2 years six months were adopted for the perverting the course of justice offending.5

(d)As to prior offending, given Mr Judson has 34 previous convictions and breaches of protection orders, a substantial uplift for this factor alone would have been appropriate.

(e)      The totality principle must have been considered and given the number and nature of the offenses, a stern response was appropriate.

4      Kohu v Police [2013] NZHC 944; R v Richardson, above n 2, Tenakore v Police [2012] NZHC

405;  R  v  McLean  HC  Gisborne  CRI-2003-016-006769, 8  November  2004;  R  v  Gemmell CA257/96, 2 November 1996; R v Hillman CA14/92, 14 May 1992; R v Bishop HC Gisborne CRI-2010-016-2882, 29 July 2011; R v Tamati [2012] NZHC 221; Stevens v Police [2012] NZHC

871; R v Robinson [2007] NZCA 336.

5      I note for completeness that on my reading a start point of 21 and half months was adopted by the District Court Judge in Sharma, but it appears the Judge mixed it in with an uplift for other offending, resulting in a cumulative uplift of 30 months which was approved on appeal.

Assessment

[8]      Given the wide-ranging challenge to the sentence made by Ms Walkington, I

will re-examine the sentence as a whole.

[9]      This appeal concerns a combination of serious offending, including several separate acts of domestic violence, cruelty to animals, a threat to kill and an attempt to pervert the course of justice. The intolerance of the Courts to domestic violence should by now, be well known. The approach recently adopted by Court of Appeal in Goodman is illustrative. The Court stated:

[12]     In our view, a starting point of 28 months was within the available range. We agree with the Judge this was a serious assault involving, as it did, attacks to the head and neck, and, while the victim did not lose consciousness, there was a strong evidential foundation from which the Judge could draw the inference that this would have been a very frightening and alarming incident for her. As submitted by the Crown, generally sentences of between two to three years’ imprisonment for domestic violence offending are not uncommon and a single charge of male assaults female tends to carry a term of imprisonment of between two and 12 months. An effective uplift of four months for the male assaults female charge was not excessive.

[10]     If anything, the facts of the present domestic violent offending are materially more serious overall. While in that case, the offending involved grabbing the complainant by the throat, the totality of the offending was substantially less: a single continuing incident of violence.

[11]     There are, as to be expected, other cases where the facts lend themselves to shorter starting points.6 But the measuring stick is whether the start point was manifestly excessive. In my view, the starting point for the totality of the domestic violence offending adopted by the Judge was, in fact, generous to Mr Judson. A start point in the order of 24 months for the multiple acts of violence, including attacks to

the head and three separate incidents of offending, would not have been out of range.

6      See Kohu v Police [2013] NZHC 944 at [16], R v Richardson, above n 2, at [10]-[11].

[12]     The intolerance of the Courts to perverting the course of justice is similarly well known. Churchman J, with respect, aptly summarised the position in Sharma:7

[26] It is commonly accepted that attempting to pervert the course of justice warrants “moderately lengthy terms of imprisonment”. The Court have held that lower-level offending of this kind warrants a sentence or starting point of between 18 months and 24 months. At the upper end of the scale the Courts have decided that three years is indicative of the severity of the offence.

[13]     As stated by the Court of Appeal in H v R:8

There is a requirement to place the relative seriousness of a particular conviction on a continuum between the least serious (warranting no prison sentence at all) and the most serious (attracting a sentence at or near the maximum of seven years’ imprisonment).

[14]      But I do not apprehend the Court was there suggesting the range identified in

Sharma was wrong in principle. Indeed, the Court endorsed a starting point of at least

18 months in H, a case involving gestures by a defendant at trial directed to a witness who then did not come up to brief. The offending was described by the District Court as opportunistic and unsophisticated offending, destructive of the trial process, with no verbal or direct physical contact and a complainant that was not vulnerable at the time. While the present offending was not destructive of the trial process, it involved premeditated, bald attempts to pervert the course of justice, directed to a complainant who had been subjected to moderately serious domestic violence.9    An 18-month starting point for the present offending was therefore, in my view, within range.

[15]     As Ms Walkington emphasised, there have been lesser sentences handed down for perverting the course of justice.10 Notably, none of these cases cited to the District Court Judge, and now relied upon by Ms Walkington, involved an attempt at perverting the course of justice by getting the complainant to change his or her account.11  In any event, and at the risk of repetition, the threshold issue is whether the

start point was manifestly excessive in this case. And, to be clear, in my view, an

7      Sharma v R, above n 3 at [26]; see also R v Hillman, above n 4, at 4; R v Rakeke HC Auckland

CRI-2009-404-179, 21 August 2009 at [25].

8      H v R [2016] NZCA 101 at [19].

9      Premeditation, as opposed to a spontaneous outburst, has long be recognised as an aggravating factor – see R v Bishop, above n 4, at [11]-[13], [18].

10     R v Bishop, above n 4, at [19]-[20]; R v Tamati, above n 4, at [25]; R v Robinson , above n 4, at

[37]; Stevens v New Zealand Police [2010] NZHC 871 at [12]-[13], [29].

11     Above.

invitation to a victim of domestic violence to pervert the course of justice by a defendant with multiple prior convictions for domestic violent abuse and breach of protection orders, is a serious matter, warranting a clear deterrent sentence. 18 months was justified.

[16]     That  leaves  the  uplifts  for  the  cruelty,  wilful  damage,  the  threat  to  kill offending, breach of release conditions and for Mr Judson’s parlous prior domestic violence history. The cruelty and wilful damage offending forms part of the domestic violence offending. A further uplift for this offending is not necessary. However, the threat to kill is a distinct act of threatened violence warranting a specific response from the Court. It was also a serious, aggravating feature of the assault offending as it forms part of an overall pattern of violence meted out by Mr Judson toward the complainant. A three-month sentence for this was warranted.12

[17]     Finally, Mr Judson’s propensity to act violently toward women, together with his disregard for Court orders (accepting there was no offending while on bail), needed denunciation in clear terms. He has 34 prior convictions, including 4 male assaults female convictions and 10 breaches of protection orders in the period 2014-2016. His last sentence for breach of protection order, one year and two months, failed to deter him.  A four to five month sentence (or about 10% of the cumulative start point) for these matters would not have been unreasonable.13

[18]     It can be seen therefore that the 50-month starting point adopted by the Judge for the combined offending, while harsh, was not manifestly excessive. I also see nothing in the totality point. The sum of the parts in this case does not exceed the totality of the offending.   A stern message was clearly needed, particularly given

Mr Judson’s very recent history of domestic violence offending.14

[19]     The appeal is dismissed.

12     See Toko v R [2017] NZCA 460, at [26].

13     Ripia v R, [2011] NZCA 101 at [10].

14     See R v Hoy CA 63/02, 23 July 2002 at [7].