KM v Police

[2012] NZHC 3066

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000087 [2012] NZHC 3066

BETWEEN  KM Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         16 November 2012

Counsel:         Appellant in person

M G Sinclair for Respondent

Judgment:      19 November 2012

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 10.00 am on the 19th day of November 2012.

RESERVED JUDGMENT OF COLLINS J

Introduction

[1]      On 17 October 2012 KM was convicted by Judge McKegg of breaching a protection order.  This is an offence under s 49 of the Domestic Violence Act 1995. KM was sentenced to two months’ community detention.  She now appeals both her

conviction and sentence.

KM V NEW ZEALAND POLICE HC WN CRI-2012-485-000087 [19 November 2012]

Background

[2]      A protection order was issued in favour of Mr L on 24 April 2008.  Mr L was formerly in a relationship with KM.   The terms of the protection order prohibited KM entering or remaining on any land or building occupied by Mr L without his consent.  The protection order also made it clear that KM would commit a trespass if she entered onto or into any land or building occupied by Mr L.  On 14 May 2010 the protection order was extended to protect Ms M, who is now Mr L’s partner.  Mr L and Ms M live in Lower Hutt.

[3]      On 3 July 2012 someone went to the door of the address of Mr L and Ms M at about 10.30pm.  During the early stages of the hearing before Judge McKegg it appears that identification was an issue.   However, during the course of the prosecution’s case it emerged that identity was not an issue and that the key question was whether KM had a lawful excuse for being at the address of Mr L and Ms M. KM’s case was that she went to the address to serve court documents and that her intention to serve those documents provided her with lawful authority to be at that address.

Key evidence

[4]      The Crown’s key witness was Ms M.  She gave her evidence from behind a screen.   Ms M told the Court that on the evening of 3 July 2012 KM rang the doorbell to her address.  Ms M said she looked outside through safety glass in the front door and through a spy hole in the door.  Security lights had illuminated the area.  Ms M said she saw KM standing at the front door.  She heard KM’s voice and could describe her clothing.  Ms M said she promptly telephoned the police.

[5]      When cross-examined by the Court’s appointed amicus,1  Ms M’s evidence was:2

1      Judge McKegg appointed an amicus because (1) KM was representing herself and (2)

Section 95(1) of the Evidence Act 2006 would have prevented KM from cross-examining Ms M

directly.

2      Police v KM DC Lower Hutt CRI-2012-032-207, 17 October 2012, Transcript at 29, lines 7-15.

Q.        I put it to you that that is in fact what [KM] said, that she was there to serve Court documents, or words to that effect; she wanted to serve papers or something along those lines, what do you say to that?

A.       Absolutely not

Q.        Okay.  Now, I just want to make it quite clear that the door bell rang once there was some words spoken and then you went off to ring the police, and you say the door bell was run another two times?

A.       I most certainly did not see anything in her hand, and if I had I

would’ve said so.

[6]      A police constable gave evidence that on the night in question after 11.00pm he saw KM walking in a street in Lower Hutt about 24 minutes walk away from the address of Mr L and Ms M.

[7]      KM  gave  evidence.    In  response  to  questions  from  Judge  McKegg  she suggested  that  she was  attempting to  serve “one  lot” of documents.    From  the transcript it appears these documents comprised a notice of application for leave to appeal  to  the  Court  of Appeal  against  a  decision  in  a  family  law  matter3   and “applications to the Family Court”4.

[8]      When cross-examined, KM said she:

(1)went to the address of Ms L and Ms M at about 10.30pm because she thought Mr L would be home at that time;

(2)       accepted she could have served the papers in question on Mr L’s

lawyers but she said they refused to accept service;  and

(3)       accepted she did not leave any papers at the address.

District Court decision

[9]      In  his  judgment  Judge  McKegg  recorded  that  he  was  satisfied  beyond reasonable doubt KM went to the address of Mr L and Ms M in Lower Hutt on

3      Transcript at 42, lins 11-28.

4      Transcript at 43, lines 9-10 and lines 25-33.

3 July  2012  without  reasonable  excuse.    His  Honour  concluded  KM’s  actions constituted a breach of the protection order.   He accordingly convicted KM and sentenced her to two months’ community detention.

Grounds of appeal

[10]     KM has advanced four grounds of appeal.

First ground of appeal

[11]     The first ground of appeal is that the District Court Judge should have refused

the prosecution’s application for Ms M to give her evidence from behind a screen.

[12]     The essence of KM’s submission on this point is that the decision to allow Ms M to give her evidence from behind a screen caused unfair prejudice to KM.  She says that the Judge’s decision on this issue implied that she had been violent towards KM in the past and made her feel “like [she] had been convicted from the start”.

[13]     In my assessment Judge McKegg was correct in allowing Ms M to give her evidence from behind a screen.   The history of animosity between KM and Mr L provided sufficient foundation to engage s 103(3)(d)5, (f),6 (g)7 of the Evidence Act

2006.   In considering the application Judge McKegg needed to have regard to the views of Ms M and the need to minimise the stress of her giving her evidence.8

[14]     In ruling that Ms M could give her evidence from behind a screen Judge McKegg made it clear that his order was designed to reduce the stress to Ms M of her giving evidence.  He also said that his ruling was:9

... no reflection on [KM’s] behaviour, or anything else, nor does it suggest that the witness is someone who needs protection, it is a neutral fact in the trial and will remain so from beginning to end.

5      The witness’s fear of intimidation.

6      The nature of the proceedings.

7      The nature of the evidence of witnesses was to give.

8      Evidence Act 2006, s 103(4)(d)(i), R v O [2012] NZCA 475.

9      Transcript at 5, lines 31-33.

Second ground of appeal

[16]   KM’s second ground of appeal is that Judge McKegg should not have uncritically accepted the identification  evidence given  by Ms  M  and  the police constable, both of whom identified KM.

[17]     There may have been some basis for this ground of appeal had identification been an issue after all evidence had been heard.  However, that was not the position. KM’s case was that she was lawfully present at the front door of Mr L and Ms M’s address in Lower Hutt at the time in question.  Accordingly it did not matter that Judge  McKegg  admitted  identification  evidence  from  Ms  M  and  the  police constable.  Thus, this was not a case in which ss 45 and 46 of the Evidence Act 2006 were engaged.

[18]     Accordingly, KM’s second ground of appeal must be dismissed.

Third ground of appeal

[19]     The  third  ground  of  appeal  is  that  Judge  McKegg  was  wrong  to  have

dismissed KM’s “s 347”10 application at the end of the prosecution case.

[20]     This ground of appeal related to KM’s second ground of appeal.  She submits that the evidence identifying her should not have been accepted and if that evidence had been put to one side the case against her should have been dismissed at the conclusion of the prosecution case.

[21]     In my assessment Judge McKegg was correct when he declined to dismiss the prosecution case at the conclusion of its case.  By that stage identification was not an issue.   The case by that stage had evolved into the issue of whether the prosecution could prove that KM did not have a lawful excuse for being at the address of Mr L and Ms M’s address.

Fourth ground of appeal

[23]     The fourth ground of appeal is that Judge McKegg was wrong to conclude the prosecution had proven beyond reasonable doubt KM breached the protection order. There are three inter-related aspects to this ground of appeal:

(1)Mr L gave KM an implied licence to access his property to serve court documents when he instructed his lawyers to refuse to accept service  from  her.    KM  submits  that  serving  court  documents  as “lawful business” within the meaning of Robson v Hallett;11

(2)The fact that general appeal provisions exist in the Domestic Violence Act shows that  facilitating an appeal, by serving documents, is  a specifically sanctioned activity under the Act and therefore provides legitimate reason to enter the property of someone for whose benefit a protection order has been issued;

(3)There were no express or implied indications that KM was not to enter the property.   There were no warning signs or notices issued under the Trespass Act 1980.

[24]     In my judgement Judge McKegg was right in his ultimate conclusion.  Judge McKegg was sceptical about KM’s suggestion she went to the address of Mr L and Ms M to serve court documents.

[25]     More importantly, however, KM knew that there was a protection order in place barring her from going to the address of Mr L and Ms M.   There was no express or implied consent given by either Mr L or Ms M for KM to go to their home.  Judge McKegg rightly concluded that KM did not go to the address of Mr L

and Ms M for “lawful business” of the kind described in Robson v Hallet,12 or Police

11     Robson v Hallett [1967] 2 QB 939.

12     Where police officers went to premises during the execution of their duties.

v McDonald.13   KM must have appreciated that if she did have Court documents that needed to be served on Mr L then service could have been achieved in a number of ways that did not involve her going to Mr L’s home.  For example, KM could have arranged for anyone else to effect service of the documents.

[26]     The fact that appeals may be conducted pursuant to the Domestic Violence Act 1995 does not translate to authority being given to KM to go to the address of Mr L and Ms M without their prior consent.  The appeals provisions in the Domestic Violence Act 1995 do not serve to effectively negate a protection order.

[27]     There was no need for any form of warning or notice to be issued against KM under the Trespass Act 1980.  The terms of the protection order made it very clear that a breach of the protection order would constitute a trespass.  KM was aware of the terms of the protection order.  She knew that she was barred from going to the address of Mr L and Ms M.

[28]     For these reasons I am bound to conclude that there is no merit in KM’s

fourth ground of appeal.

Sentence appeal

[29]     KM submits that the sentence of two months’ community detention  was

manifestly excessive.

[30]     The basis of this submission appears to be:

(1)      On 20 March 2012 KM was sentenced to three months’ community

detention by Judge Mill. That sentence ended on 19 June 2012.

(2)      On 2 July 2012 KM was again sentenced by Judge Mill to a further

four months’ community detention.

(3)       As a consequence, the provisions of s 69D of the Sentencing Act 2002 applied.  Section 69D provides:

69D     Concurrent    and    cumulative    sentences    of community detention

(1)       If   a   court   imposes   a   sentence   of   community detention on an offender who is already subject to a sentence  of  community  detention,  the  sentences must be served concurrently unless the court directs that they are to be served cumulatively.

(2)       If   a   court   imposes   cumulative   sentences   of community   detention   or   imposes   1   or   more sentences  of  community  detention  on an  offender who is already serving a sentence of community detention, the total term of the sentences of community detention must not be more than 6 months.

...

[31]     KM submits that as the maximum sentence of community detention which could be imposed was only two months Judge McKegg erred when he imposed what was in effect the maximum sentence of community detention that was available.

[32]     KM  also  submits  that  Judge  McKegg  did  not  consider  the  effect  of community detention on her which involves a 7.00pm to 7.00am curfew which she says prevents her from visiting the cemetery which her parents are buried or the accident site where her mother was tragically killed in December 2011.

[33]     In my assessment, if KM’s appeal against sentence was solely confined to the length of the sentence of community detention imposed by Judge McKegg then I would have dismissed this aspect of her appeal.  However, during the course of the hearing it emerged that there was in fact another basis for KM’S appeal against the sentence imposed by Judge McKegg.  During the course of the hearing KM raised an issue concerning compliance with s 67C(2) of the Sentencing Act 2002.  That section provides:

69C     Guidance on use of sentence of community detention

..

(2)      A court may sentence an offender to community detention if—

(a)      the court is satisfied that—

(i)       the proposed curfew address is suitable;  and

(ii)      the relevant occupants (as defined in section 26A(4))

of the proposed curfew address—

(A)      understand the conditions of the curfew that will apply to the offender; and

(B)      consent  to  the  offender  remaining  at  the address in accordance with the curfew;  and

(C)      have been informed that they may withdraw their consent, at any time, to the offender serving the sentence at the curfew address; and

(iii)     the   offender   has   been   made   aware   of   and understands all the conditions that will apply during the sentence and he or she agrees to comply with them;  and

(b)      the  proposed  curfew  address  is  in  an  area  in  which  a community detention scheme is operated by the chief executive of the Department of Corrections.

[34]     KM explained that no report was prepared before Judge McKegg imposed the sentence of community detention in this case.  Accordingly, there was no attempt made to ascertain if KM agreed to comply with the conditions of a sentence of community detention.

[35]     I can fully understand Judge McKegg’s position.  KM has a long history of engagement with court proceedings.  She has had a number of community detention sentences imposed upon her.  The most recent sentence was imposed the day before she   offended   on   this   particular   occasion.      It   was   therefore   apparent   that Judge McKegg assumed that KM fully understood what was entailed in a sentence of community  detention  and  that  she  would  automatically  agree  to  conditions associated with a sentence of community detention.

[36]     However, in my assessment, even a person in KM’s position needs to agree to comply with conditions that she understands before a sentence of community detention is imposed.

[37]     In view of the failure to comply with the requirements of s 69C(2) of the Sentencing Act  2002  I  am  forced  to  reach  the  conclusion  that  the  sentence  of community detention imposed by Judge McKegg was not imposed lawfully.

[38]     The issue then arises as to what alternative sentence should be imposed. Judge  McKegg  correctly  noted  that  the  sentence  of  two  months’  community detention was lenient in light of KM’s extensive history of criminal offending.  By my calculations she has approximately 140 previous criminal convictions including ten previous convictions for contravening protection orders.   KM appears to have been sentenced to community detention on at least six previous occasions.  Under ordinary circumstances a sentence of imprisonment would have been entirely appropriate.

[39]     In examining this appeal it is apparent to me that KM is an habitual offender with issues that are unlikely to be satisfactorily addressed by the criminal justice system.   For this reason I propose to simply quash the sentence of community detention imposed by Judge McKegg in the hope that KM appreciates that if she should offend again then it is highly likely that she will be sentenced to a significant period of imprisonment.

Conclusion

[40]     The appeal against conviction is dismissed.

[41]     The  appeal  against  sentence  is  allowed.    The  sentence  of  community detention is quashed. No alternative sentence is imposed.

D B Collins J

Solicitors:

Crown Solicitor, Wellington for Respondent