KYLE JAMES CRAIG AND NEW ZEALAND POLICE

[2024] NZHC 2589

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2024-425-30

[2024] NZHC 2589

BETWEEN

KYLE JAMES CRAIG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

9 September 2024

Appearances:

Appellant in person

S N McKenzie for Respondent

Judgment:

9 September 2024

JUDGMENT OF OSBORNE J

Introduction

[1]    Kyle Craig (36 years of age) was convicted, upon his guilty pleas, on three charges of breaching a protection order (PO),1 one of procuring cannabis2 and one of failing to assist with a computer search.3 Mr Craig was sentenced on the PO breaches to 16 months’ imprisonment by Judge Harvey.4 On the remaining two charges he was sentenced to one month’s imprisonment (to be served concurrently). He appeals, in terms of his notice of appeal, both his convictions and his sentence. He requires an extension of time for his appeal.

1      Family Violence Act 2018, ss 90(a)–(b), 9 and 112(1)(a)—maximum penalty three years’ imprisonment.

2      Misuse of Drugs Act 1975, ss 7(1)(a) and (2)—maximum penalty three months’ imprisonment.

3      Search and Surveillance Act 2012, s 178—maximum penalty three months’ imprisonment.

4      Police v Craig [2024] NZDC 1030.

CRAIG v NEW ZEALAND POLICE [2024] NZHC 2589 [9 September 2024]

The offending

The protection order

[2]    On 10 February 2022, a temporary protection order under the Family Violence Act 2018 was made, and was served on Mr Craig the next day. The first victim in this matter (“X”) was the applicant for the order. The second victim Y, (X’s daughter), was also protected by the order.5 X and Mr Craig have been separated for over two years. X has two children living with her. (A final protection order was ultimately made on 17 June 2024).

PO Breach 1

[3]    On 13 September 2023, Mr Craig posted court documents pertaining to the order on social media, tagging family and associates of X in the post.6 X received multiple messages regarding the post.

PO Breach 2

[4]    On 21 October 2023, X was alerted to another post made by Mr Craig that targeted Y. The post tagged Y’s biological father and made distressing claims as to her parentage and family relationships.

PO Breach 3

[5]    On 23 October 2023, Mr Craig attempted to contact Y three times, by messaging and calling her. A part of Mr Craig’s message reads: “…the only gesture I can offer is risking prison (if youse call the cops coz of this) to tell you this and ask how are you?”.

The other offences

[6]    On 27 October 2023, police located Mr Craig at an Invercargill address with two grams of cannabis in his possession. While in custody, he refused to give particulars to unlock his device when requested.

5      Family Violence Act, ss 8, 86 and 87.

6      Tagging on Facebook shows the tagged person’s friends and family the content as well.

Mr Craig’s guilty pleas

[7]    Mr Craig was charged with five offences and, represented by counsel, pleaded guilty to all.

Principles on appeal

[8]    Section 232(5) of the Criminal Procedure Act 2011 allows an appeal against conviction to be brought following guilty pleas. The Court of Appeal’s statement in R v Merrilees is pertinent:7

It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.

[9]    Appellants must prove a miscarriage of justice will result if the conviction is not overturned. Such appeals have been restricted to four categories:8

(a)where an appellant did not appreciate the nature of, or did not intend to plead guilty to, the charge;

(b)where, on the admitted facts, an appellant could not in law have been convicted of the offence charged;

(c)where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law; and

(d)where counsel errs in the advice given as to the non-availability of certain defences or potential outcomes.

7      R v Merrilees [2009] NZCA 59 at [35].

8      R v Le Page [2005] 2 NZLR 845 (CA) at [17]–[19]; Richmond v R [2016] NZCA 41 at [17]–[18].

[10]   An appeal proceeds by way of rehearing and this Court is required to form a view of the facts.9 If this Court reaches a different view on the evidence and finds error, the appeal must be allowed.10 The onus is on the appellant to show that an error occurred.

[11]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act and must be determined in accordance with s 250. An appeal against sentence will be successful if this Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.11 A court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.12 When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.13

District Court decision

[12]   The summary of facts on which Mr Craig pleaded guilty referred incorrectly to a “final protection order” made on 1 July 2023.

[13]   The Judge, in sentencing Mr Craig, emphasised the “dreadful damage” inflicted on the victims by Mr Craig’s actions.14 The Judge quoted from the victim impact statements in which X referred to her psychological harm and explained she had “a lot of anxiety” and a diminished social circle by virtue of Mr Craig’s online conduct. Y felt shame and embarrassment when Mr Craig spread false information about her online. She described his harassment as “never-ending”.

[14]   The Judge reviewed Mr Craig’s record of offending. He noted a previous sentence of imprisonment (in January 2023) for seven PO breaches and two further PO breaches committed in May 2023. The Judge could also have referred to five

9      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]–[32].

10 At [38].

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

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at [15].

13     Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].

14     Police v Craig, above n 4, at [7].

domestic violence offences over the same period for family violence offending. The Judge identified that Mr Craig’s offending was “simply ongoing”.15 While acknowledging that Mr Craig suffers from autism, the Judge found that a sentence of imprisonment was again necessary.

[15]   The Judge adopted a starting point of 18 months’ imprisonment, uplifted by six months for Mr Craig’s prior convictions. He observed he could alternatively, by taking all the factors into account, have selected a starting point of two years. He then gave Mr Craig credit for his guilty plea and his being affected by autism, arriving at a sentence (implicitly a total credit of eight months or 33 per cent) of 16 months’ imprisonment.

Submissions

Appellant’s submissions

[16]   Mr Craig’s issue with his convictions relates only to the three PO breaches. He notes the Judge’s reference to the final protection order (1 July 2023), as recorded in the summary of facts, saying “it does not exist”.

[17]   Mr Craig also appeals against his sentence on the PO breaches. He appeals the sentence of imprisonment, asking what is the “point” of it, noting staffing shortages and overpopulation, as well as his autism. Finally, citing the New Zealand Bill of Rights Act 1990, Mr Craig claims the uplift imposed by the Judge was “contrary to the principle of double jeopardy”. Mr Craig has focussed his oral submissions this morning on the first issue, the entry of convictions in relation to his three PO breaches.

Analysis

Extension of time

[18]    The appellant is self-represented. The Crown accepts there is no prejudice in granting an extension of time. I find it just to grant leave to appeal out of time.

15     Police v Craig, above n 4, at [10].

Conviction

[19]   The respondent’s written submissions filed by Mr Brownlie appropriately addressed this matter. The temporary protection order remained in force at the time of Mr Craig’s September and October 2023 offending. The error in the summary of facts referring to a final order dated 1 July 2023 is immaterial. Mr Craig was, as a matter of law and of fact, guilty of the offences to which he pleaded guilty.

[20]   In his oral submissions this morning, Mr Craig has emphasised to me his view that he has grounds to challenge the basis upon which the temporary protection order was made in the Family Court by reason of what he submits were irregularities in the documents filed in support of the application in that Court. I have explained to Mr Craig in the course of his submissions that this Court is obliged to treat as regular a vested order of the Family Court absent that order being affected by an appeal brought in relation to the Family Court orders. This is not the context for this Court to review alleged errors or irregularities in the application made to the Family Court.

Sentence

[21]   I deal with this matter although Mr Craig has not addressed this in detail in his oral submissions to me. Protection order offending varies in circumstance — starting points are difficult to assess. The maximum penalty for a breach is three years’ imprisonment. In light of the several cases I have reviewed,16 the repeated targeting of two victims, and the relationship of this offending to Mr Craig’s past offending,17 I consider the two years’ starting point was within range, albeit at the top of the range.

[22]   The uplift imposed does not constitute double jeopardy — the relevance of previous convictions in setting starting points was identified by the Court of Appeal in the case to which Ms McKenzie referred, Orchard v R:18

[39] Previous convictions are relevant as an indicator of character and culpability, all because they show the need for a greater deterrent response, or as an indicator of risk of re-offending. Uplifts for previous convictions should be considered responses to a defendant’s criminal history.

16     Jackson v Police [2019] NZHC 281; Turner v Police [2017] NZHC 1113; Carlyon v Police [2017] NZHC 2526; Wratt v Police [2018] NZHC 2477.

17     Family Violence Act, s 112(3).

18     Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [39].

[23]   Although the Judge did not give discrete percentage figures, it appears a full 25% discount was allowed for the guilty plea, as well as an eight per cent credit for Mr Craig’s autism. Higher discounts can and have been given for mental illness factors.19 The level of appropriate discounts must depend on the information before the Court. Here, as the Judge found, some account could be taken of Mr Craig’s autism as a mitigating factor.20 But it remained clear the three sets of offending were concerted and deliberate attempts to cause harm to X and Y, and with full appreciation of the consequences, following a well-established pattern of Mr Craig ignoring Court orders. The Judge’s allowance for Mr Craig’s autism was, in my view, appropriate.

[24]   Ms McKenzie’s submissions accurately summarised the nature of the discretion to commute a sentence of imprisonment to home detention. Mr Craig has emphasised today he no longer pursues submissions in that regard. The Judge considered submissions from Mr Craig’s counsel on that issue in any event. The Judge correctly referred to the probation officer’s recommendation of imprisonment, against the background of Mr Craig’s sentence of imprisonment for similar offending previously and the continued nature of his offending. The need for the protection of X and Y, when the existence of protection orders had failed to constrain Mr Craig, had to be at the forefront — leading the Judge correctly to observe: “I am not prepared to risk home detention because I do not want further breaches of this order. The victims have suffered enough.”21 These factors fully justified the Judge’s decision to impose a term of imprisonment.

Outcome

[25]The time in which to appeal is extended.

[26]The appeal is dismissed.

Osborne J

Solicitors:

Crown Solicitor, Invercargill

Copy to : K J Craig (self-represented)

19     L v R [2019] NZCA 676 at [48]–[49].

20     Police v Craig, above n 4, at [11].

21 At [12].