Lawrence v Police
[2015] NZHC 1122
•25 May 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000027 [2015] NZHC 1122
BETWEEN STEVEN SHANE LAWRENCE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 19 May 2015 Appearances:
L L Heah for Appellant
K South for RespondentJudgment:
25 May 2015
JUDGMENT OF DUNNINGHAM J
[1] On 26 March 2015, the appellant, Steven Lawrence, was sentenced to
11 months’ imprisonment for four charges of threatening to kill three politicians.1
His lawyer argues that the starting point for this offending is not imprisonment. Instead, as the pre-sentence report had recommended, community work and supervision to monitor his behaviour, emotional and mental health as well as to support him in maintaining sobriety would have been more appropriate.
[2] Alternatively, if imprisonment is warranted, then the starting point the Judge adopted of 16 months’ imprisonment was manifestly excessive, particularly when regard is had to other cases where threats have been made against persons in public office.
Background to the offending
[3] Mr Lawrence’s circumstances are eloquently described by the author of his
pre-sentence report. He is described as:
1 New Zealand Police v Lawrence [2015] NZDC 5045 at [32].
LAWRENCE v NEW ZEALAND POLICE [2015] NZHC 1122 [25 May 2015]
… a lonely man, with only a cat for company in his one bedroom city council flat … he has no friends, and his only social contact is with his brother. An alcoholic, he resumed drinking after a year’s reported abstinence on Christmas Eve 2014 …
Mr Lawrence is strongly attracted to political discourse and supports left wing politics. He bears a particular animosity to the National party. It appears that his social isolation has caused him to become fixated on the perceived inadequacies of National Party politicians. He is also against any policy which might involve New Zealand in overseas conflicts. These beliefs and attitudes prompted the offending but the catalyst was his intoxication during the offending period.
[4] In his intoxicated state, Mr Lawrence wrote four emails to three different members of the National Party government via email addresses given on the parliamentary website. This facility enables people to send an email to any Member of Parliament by completing an online email form which includes a return email address and a subject line.
[5] On the evening of 11 January 2015, he sent an email to his first victim where he threatened to personally see the victim was pumped “full of bullets” and ending with the line “oh joyous day when you [sic] entrails are spread across the streets I rejoice in your demise”.
[6] Five days later he sent an email to the second victim using the subject line “JeSuis [sic] Une Terroriste”, which translates as “I am a terrorist”, and presumably was intended to echo the slogan adopted by supporters of freedom of speech after the
7 January 2015 massacre at the offices of the French satirical weekly newspaper, Charlie Hebdo, in Paris. In that email the recipient was told:
I will not tolerate this clowns [sic] government that you represent as we have free speech in this country.
The content then degenerated into statements which included:
… we will rejoice when your head sits on the poles … and,
… my brothers in Lebanon will spread you [sic] entrails on the streets.
[7] A little later on the same day, the third victim was emailed criticising the fact that she and the government had:
enabled the US to operate in our fair nation.
but again, degenerating into a threat that:
I intend to hunt you down and see that your head rests on the poles around your house of deceit.
[8] The fourth email was sent the next evening to the same recipient as the second email, asserting:
your government has dis-enfranchised me I am so radicalized against your sham government where our foreign policy is made on the golf course in Hawaii,
but again culminating in threats that:
at your next public appearance I will slit your blasphemous throat and place your head on the poles on your house of deception.
[9] When questioned about the offending, Mr Lawrence admitted sending the emails. By way of explanation he said that he had very strong political ideologies and wanted to warn, not threaten, the victims about being involved in a government which is associated with the United States of America and its policies. He pleaded guilty to all four offences and was sentenced on that basis.
The District Court decision
[10] In addition to the pre-sentencing report from the Department of Corrections and a report from the Canterbury District Health Board on Mr Lawrence’s mental health, the District Court Judge had victim impact statements from two of the recipients of the emails. After outlining the offending itself, Judge MacAskill referred to the victim impact statements, and the effect of the offending. One of the concerns expressed by one of the victims is that:
Each time a threat of this nature is made, we edge closer to restrictions on public interaction with their elected representatives – a look at electorate security today compared to 10 years ago demonstrates how drastically, albeit incrementally, change has occurred.
The victim also said that following receipt of the threat the victim remains:
… very much on guard in most public circumstances. That is an unreasonable position to be in and, it could be argued, compromises the right of access other law abiding citizens should enjoy.
[11] The Judge then referred to Mr Lawrence’s convictions. While Mr Lawrence does not have a significant criminal history, the Judge did note that the convictions included a charge of common assault in 2013, and of behaving threateningly in 2011.
[12] To guide him in sentencing, the Judge then reviewed eight different cases of threats to kill against public service providers, primarily police officers, but also, in the case of R v Adams,2 and Feary v R,3 against Ministers of the Crown. They supported, in his view, a sentence of imprisonment being imposed.
[13] In setting the starting point, several purposes of sentencing, as set out in s 7 of the Sentencing Act 2002, were in focus. They were, denunciation, accountability for offending, deterrence of Mr Lawrence and others, protection of the public and public officials, and rehabilitation.
[14] Judge MacAskill then turned to consider the aggravating features of the offending. First, and importantly, he placed reliance on s 9(1)(h) of the Sentencing Act, by stating:
[26] Under s 9(1) of the Sentencing Act, the Court must take into account aggravating factors that include that the offence was committed partly or wholly because of hostility towards a group of persons who have an enduring common characteristic. In my opinion, a “group” includes politicians who belong to a particular party. If I am wrong about that, that reasoning should be applied by analogy.
[15] Judge MacAskill also considered several other issues “relevant to the issue of the seriousness of … [Mr Lawrence’s] offending”, and listed them as follows:4
(a) The threats were made to persons in public office. (b) The threats were politically motivated.
(c) They were premeditated, at least in the sense that time was taken to prepare them and they were made on different occasions over a short period.
2 R v Adams [1999] 3 NZLR 144.
3 Feary v R [2011] NZCA 235.
4 New Zealand Police v Lawrence, above n 1, at [27].
(d) They were couched in language calculated to give the impression that you were a radicalised and violent person, in an apparent attempt to give the threats additional credibility.
(e) The threats were specific as to how weapons would be used to inflict death.
(f) You conveyed a determination to carry out the threats and to give the impression that they should be taken seriously.
(g) The threats were made directly to the victims. You caused, as I find you intended, a high level of anxiety. The overall intended impact of the threats was to intimidate the victims.
[16] The Judge also placed reliance on the potential chilling effect such threats might have on public access to politicians in New Zealand and the fact that Mr Lawrence, though being intoxicated, had gone to quite some effort over a period of days in sending the emails whilst portraying himself as a radicalised muslim with
a propensity for violence.5 Specifically, before addressing the mechanics of
sentencing, Judge MacAskill stated:
[29] Threats to persons who hold public office must be taken seriously. People should not be discouraged from entering politics or other public office by threats or risk of threats. Nor should their policies and decision making be influenced by such means. Such intimidation, as was attempted by you, challenges our democratic freedoms and liberties. Political opposition must be presented by a lawful means. Threats and other offending against holders of public office, especially when calculated and politically motivated, must be treated as especially serious.
[30] I conclude that the threats you made must be assessed at a high level of seriousness. Sentences of less than imprisonment are precluded by the seriousness of your offending. I accept the probation officer’s advice that you should not be sentenced to home detention for the reasons set out in the report.
[17] The Judge then took a starting point of 16 months on the lead offence, being the last threat made, but also made it clear that Mr Lawrence was being sentenced on a totality basis. He then applied a discount of four months from the starting point for the guilty plea and a further one month for the fact Mr Lawrence had spent two months on a 24 hour curfew to reach an end sentence of
11 months’ imprisonment. Leave to apply for home detention was refused.
5 At [13] and [16].
Discussion
[18] Although the submissions I heard spent considerable time analysing other cases where threats to kill were made to persons in public service roles or in public office, the outcomes were quite fact specific and it was difficult to discern any clear guidelines on sentencing from them. The overall impression I gained was that, in light of the maximum seven year sentence available, the penalties fell at the lower end, ranging from non-custodial sentences to a sentence of two years and six months, in a case where there were two similar prior convictions concerning threats against
the same complainant.6
[19] By way of illustration, in Burchell v R, Mr Burchell’s sentence of eight months’ imprisonment for making a threat against the named police officer through his probation officer, was reduced to four months’ imprisonment on appeal.7
While the Court of Appeal noted that an aggravating feature was that the threat was directed towards a named police officer and that the threat was taken seriously, “it was not made to the officer or in his presence”.8 Its scope was limited to the prospect of an opportunistic encounter. Mr Burchell disclaimed any intention of seeking out the officer. He did not particularise the mode of carrying out the threat. And, significantly, it was the spontaneous culmination of an apparently angry and
irrational tirade against police officers and authorities in general.
[20] In Annas v R, a threat was made directly to a WINZ manager by telephone while the offender was on bail for an unlawful assembly offence.9 The appellant also had gang connections and had previously been trespassed from the WINZ premises to which the threat was made. The Court of Appeal described the threats in these terms:
[8] The appellant's threats were twofold. First she threatened to burn the building down with everyone in it. Secondly she threatened the manager saying she would kill her personally and that she had better be careful and watchful because, if the appellant ever saw her on the road, she would run her down. As is apparent from the victim impact statement available to the Judge, the victim, being aware of the appellant's associations, took this threat
6 R v Penney CA 24/04, 4 August 2004.
7 Burchell v R [2010] NZCA 314.
8 At [27].
9 Annas v R [2011] NZCA 49.
seriously. She travelled to and from work by alternative routes; suffered disturbed sleep for a while; and needed the reassurance of a security guard at her home for approximately three weeks.
[21] This case also involved a defended hearing resulting in a conviction. Again, no discount for guilty plea was available. There the sentence of nine months imprisonment on the threatening to kill charge was described as “stern”, but within range.10
[22] In terms of cases involving threats to Members of Parliament, in Feary v R, threats to kill were made to Members of Parliament who did not know the appellant.11 In particular, there were 12 counts of threatening to do grievous bodily harm and two counts of threatening to kill. Mr Feary was convicted following a jury trial so no discount was available. He was fined $500 for each of the threats to do grievous bodily harm and $7,000 for the two threats to kill, for a total of $20,000.
The threats were made to various senior politicians.
[23] The Court of Appeal, in dismissing an appeal against sentence and conviction, remarked:
[15] The notice of appeal states that the sentences should be set aside on the grounds of wrong decisions on questions of fact and of law. No further details were given. We have been unable to identify any material errors of fact on the part of the Judge at the time of sentencing and we are of the view that the sentences imposed were entirely appropriate. Indeed, they might be regarded as lenient in the circumstances.
(emphasis added)
[24] In the second such case, in R v Terry the appellant had threatened to kill the Hon Phil Goff.12 He pleaded guilty and was sentenced and discharged, with the Judge requiring him to enter into a bond to keep the peace. The appellant consented to this arrangement, but later sought to appeal out of time against both conviction and sentence. The appeal was summarily dismissed.
[25] As these cases illustrate, there is an enormous diversity in sentencing for this type of offending and only limited assistance can be gained by comparing the present
10 At [26].
11 Feary v R, above n 3.
12 R v Terry [2007] NZCA 260.
case to them. They do, however, suggest that threats made with no ability or intention to act on them would not attract a sentence of more than a year in prison. I prefer in these circumstances to focus on the factors identified in the Court of Appeal’s decision in Faaleaga v R, in relation to a threat to kill, where it was said:13
[11] Key factors in assessing the culpability of offending of this nature will include premeditation (the degree to which the threats were planned or calculated), the nature and frequency of the threats, any link to earlier actual violence, whether the object of the threat has public office, the ability of the offender to effect the threat and the allied question of the actual danger to the victim. The inability to immediately effect a threat reduces the terror it might otherwise invoke reducing the extent of harm resulting from the offence and thereby reducing culpability. We do not agree with the sentencing Judge that this factor cannot detract from the severity of the offending. Whether it does or not will turn on the specific facts.
[26] In Mr Lawrence’s case, I assess his culpability as follows:
(a) There was a modest degree of pre-mediation in Mr Lawrence’s emails. He took the time and trouble to craft the emails and send them over a period of several days, so it cannot be said that they reflected spontaneous outbursts made in the heat of the moment and instantly regretted.
(b)In terms of frequency, the fact there were four emails to three different Members of Parliament is clearly more culpable than a single threat of this type.
(c) Some aspects of the nature of the threats add to the culpability. These include the deliberate attempt to tap into public fear about radicalised Muslims, the racist attacks in one email and the generally offensive nature of some of the content which, even if it did not create fear in the recipient, must inevitably have offended them.
(d)The fact that the recipients held public office is also a factor which contributes to the culpability of the offending in this case, as it is
reasonable to expect that persons entrusted to take on public duties on
13 Faaleaga v R [2011] NZCA 495.
the public’s behalf should not be subject to unreasonable attacks and threats as a consequence. However, I caution against elevating their status to that of police officers and other frontline service workers whose role working with vulnerable and stressed people in the community puts them especially at risk as is recognised by s 59(1)(fa) and (fb) of the Sentencing Act 2002.
[27] That said, there are several factors that reduce Mr Lawrence’s culpability:
(a) Though the threats were made directly, they were sent by email.
There was a permanent record of precisely what was said, which could be, and was, screened. Indeed, the result of that screening in respect of the first victim was that security services identified there was no immediate threat to life or body.
(b)Mr Lawrence used personal email addresses, one of which included his own name, with the inevitable result that he would be apprehended.
(c) Mr Lawrence was not in a position to give effect to the threats.
Indeed, he was geographically separated from his victims by a substantial distance, nor did he have the means to shoot or behead multiple people.
(d)Though the threats were in some ways specific, they were also bizarre and “over the top” and they imposed no timeframe or sense of urgency. They could quickly be categorised as no more than a vitriolic tirade against the foreign policy of the current Government, overlaid with obscenities and threats, for effect.
(e) He has no previous history approaching this level of seriousness.
[28] In summary, to a large extent, my assessment of the culpability aligns with that of the District Court Judge. However, I do not consider that the Court was
correct in assessing an aggravating factor being that the “offence was committed partly or wholly because of hostility towards a group of persons who have an enduring characteristic”.14 While the pre-sentence report refers to his animosity towards the National Party, the threats themselves are expressed as being motivated by the Government’s foreign policy. Thus, the threat is not aimed at any member of the National Party, but at members of a Government which has espoused a foreign policy which he does not agree with.
[29] In any event, I do not consider that membership of a political party is captured by s 9(1)(h) as being “an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age or disability”. That said, of course, the racist comments made in one email do fall within this category. The real aggravating feature, which I have already taken account of, is the offensive nature of the threats.
[30] I also think that too little regard was had to the factor identified in Faaleaga v R, as to the offender’s ability to carry out the threat and the actual danger to the victim.
What sentence should be imposed?
[31] It will be apparent from the above discussion that while I agree with many of the conclusions of the Judge, and accept that the emails would have been both offensive and frightening to the recipients, I consider more account should have been taken of the ability of the offender to effect the threat and the actual danger to the victim. These were, in this case, very low.
[32] I also concur with the Judge on the need to deter both Mr Lawrence and other offenders from this type of offending, particularly when it is aimed at people in public office. However, I accept Ms Heah’s submission that, for a man in Mr Lawrence’s circumstances, who has never served a prison sentence before, any
sentence of prison will act as a deterrent.
14 Sentencing Act 2002, s 9(1)(h).
[33] Finally, I have also had regard to the sentences in the cases discussed above, particularly where threats were made to elected members of parliament. In all the circumstances, I am satisfied that the starting point of 16 months was too high and a sentence of 12 months would be sufficient to mark the gravity of the offending and the need to deter others from this type of behaviour.
[34] From that I deduct, as the District Court Judge did, 25 per cent for the early guilty pleas and a further month for the time spent on 24 hour curfew to reach an end sentence of eight months’ imprisonment. I am satisfied that the difference between an 11 month sentence and an eight month sentence is not mere tinkering with the sentence and it is appropriate that a different sentence should be imposed.
[35] Accordingly, the appeal is allowed. The sentence of 11 months’ imprisonment is quashed and a sentence of eight months is imposed instead. However, the prohibition on applying for home detention remains in place.
Solicitors:
Lee Lee Heah, Barrister
Raymond Donnelly & Co., Christchurch
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