Lane v Police HC Rotorua CRI 2010-463-32

[2010] NZHC 843

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-32

DARYL THOMAS LANE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 and 18 May 2010

Appearances: Mr P T Birks for Appellant

Mr S Walsh for Respondent

Judgment:      18 May 2010

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors:

Crown Solicitor, Rotorua

Counsel:

Mr P T Birks, Rotorua

LANE V NEW ZEALAND POLICE HC ROT CRI-2010-463-32  18 May 2010

[1]      Mr Lane pleaded guilty in the District Court to four charges of breaching a protection order.  On 12 April 2010, His Honour Judge Kerr sentenced Mr Lane to nine months imprisonment and imposed the release conditions recommended in the probation officer’s report.  Mr Lane now appeals to this Court against that sentence on the basis that it was manifestly excessive.

The facts

[2]      The facts that gave rise to Mr Lane’s offending were contained in a summary of facts presented in the District Court, and to which Mr Lane evidently took no exception.  The summary reveals that the complainant in this matter is Mr Lane’s former partner.  They have several children who are also subject to the protection of the protection order.

[3]      A condition of the protection order is that Mr Lane is not to go to, or loiter around, the work or home addresses of the complainant.

[4]      It is clear that issues relating to access to the children loom large following the breakdown of the relationship between Mr Lane and his partner.  These issues are currently the subject of proceedings in the Family Court.

[5]      Three of the charges to which Mr Lane pleaded guilty related to incidents in which, within a two week period in January 2010, Mr Lane sent three text messages to the complainant relating to the children and to the breakdown of the relationship. Then, at about 4 pm on 11 February 2010, Mr Lane went to the Whakarewarewa Village.  The complainant owns a souvenir shop in the Village.  The complainant’s daughter heard Mr Lane’s voice outside the shop and when she peeped out the sliding door, she saw Mr Lane standing about two metres down from the shop talking to another shop owner.

[6]      The daughter went back into the complainant’s shop so that Mr Lane would not see her.  When she peeked out again, however, she saw him standing outside the next shop and heard him yell out “yip this is it”.  Mr Lane then walked back into the neighbouring shop.

[7]      The  Judge  noted  that,  even  though  no  actual  violence  had  occurred,  the breach of a protection order was in itself a form of violence.  The Judge was also concerned that Mr Lane had three previous convictions for breaching the terms of a protection order.  The Judge was in error to some extent in this conclusion, because he noted that Mr Lane had three such previous convictions whereas in fact, he only has two.   In addition, however, he has several convictions for offences involving violence including convictions for assaulting a female.

[8]      For  these  reasons  the  Judge  adopted  a  starting  point  of  18  months imprisonment.  He then reduced that by 50 per cent to reflect the very early pleas of guilty that Mr Lane had entered.  This left him with an end sentence of nine months imprisonment on each charge.

Grounds of appeal

[9]      At  the  commencement  of  the  hearing  before  me,  counsel  for  Mr  Lane submitted that the Judge may have incorrectly stated that the maximum penalty for each offence was a term of two years imprisonment.  He pointed out that Mr Lane was dealt with summarily, and that Judges in the dollars only have the power to deal with indictable offences summarily if the offences are specified in Part 2 of Schedule

1 to the Summary Proceedings Act 1957.  That schedule records that offences under s 49(2) of the Domestic Violence Act 1995 are included.  It makes no reference to s

49(1)(a), which is the section of the Domestic Violence Act 1995 that the charges against Mr Lane were laid under.

[10]     Although I do not propose to determine the issue finally, it would appear to me that the Judge did have jurisdiction under the Schedule.  This is because s 6 of the Summary Proceedings Act 1957 provides the Court with “… summary jurisdiction  in  respect  of  the  indictable  offences  described  in  the  enactments specified in Schedule 1…” to this Act.  Importantly, Schedule 1 refers to the offence of  breaching  a  protection  order  and  it  also  refers  specifically  to  the  Domestic Violence Act 1995

[11]     I  do  not  consider  that  the  fact  that  the  Schedule  contains  an  incorrect reference to s 49(2) rather than s 49(1)(a) operates to vitiate the Judge’s power to deal with Mr Lane summarily.  For that reason I consider that the Judge did have jurisdiction to impose the sentence of up to two years imprisonment.

[12]     It has to be said that the starting point that the Judge adopted was high given the fact that no actual violence or threats of violence had occurred.  Counsel for the respondent frankly conceded that point during the hearing of the appeal.

[13]     I consider, having regard to the overall circumstances of the offending, that a starting point of no more than nine months imprisonment was warranted.   To that starting point, however, there must be an uplift to reflect Mr Lane’s previous convictions for similar offending.   I consider that an uplift of one-third, or three months, would be appropriate.   This brings the end starting point to 12 months imprisonment before taking into account mitigating factors.

[14]     The only mitigating factor that Mr Lane could rely upon was his very early guilty pleas.   In terms of R v Hessell [2009] NZCA 450 these would justify a reduction of one-third, or four months. This leaves the end sentence as being one of eight months imprisonment.

[15]     In itself, a reduction from nine months to eight months may not seem to be particularly significant and it can be argued that the end sentence of nine months imprisonment was not manifestly excessive.  I consider, however, that it is important that the route by which the sentence be ascertained is transparent, particularly given the  fact  that  the  starting  point  adopted  in  the  present  case  may be  relevant  in calculating the starting point adopted in any future similar offending for which Mr Lane may appear for sentence in the future.

[16]     That being the case, I propose to allow the appeal and quash the sentence of imprisonment that the Judge imposed.   In its place I impose a sentence of eight months imprisonment.   That sentence is to be subject to the existing release conditions.

Lang J