Lawrence v The King
[2024] NZHC 2514
•3 September 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-443-000021
[2024] NZHC 2514
BETWEEN KURT WILLIAM LAWRENCE
Appellant
AND
THE KING
Respondent
Hearing: 3 September 2024 Counsel:
P M Keegan for Appellant
O A Jessop Boivin and P D Marshall for Respondent
Judgment:
3 September 2024
ORAL JUDGMENT OF RADICH J
[1] Kurt Lawrence was convicted of domestic violence charges against his partner at the time, comprising one charge of wounding with intent to injure,1 one charge of strangulation,2 and one charge of injuring with intent to injure3. He was convicted also of one charge of wilfully attempting to pervert the course of justice.4 Judge Hikaka sentenced him to four years’ imprisonment for these convictions on 12 June 2024,5 after Mr Lawrence had pleaded guilty following a sentence indication on 2 February 2024.6
1 Crimes Act 1961, s 188(2); maximum penalty of seven years’ imprisonment.
2 Section 189A(b); maximum penalty of seven years’ imprisonment.
3 Section 189(2); maximum penalty of five years’ imprisonment.
4 Section 117(e); maximum penalty of seven years’ imprisonment.
5 R v Lawrence [2024] NZDC 13564 [Sentencing decision].
6 R v Lawrence DC New Plymouth CRI-2023-043-0000410, 2 February 2024 [Sentencing indication].
LAWRENCE v R [2024] NZHC 2514 [3 September 2024]
[2] Mr Lawrence appeals now from the Judge’s sentencing decision on the basis that insufficient discounts were given. He does not dispute the starting points taken by the District Court Judge.
The offending
[3] The domestic charges arise out of two separate incidents. The first came about after Mr Lawrence became angry at the victim, standing above her and yelling at her while she was sitting on the floor with her head in her hands. Mr Lawrence suddenly kicked her in the face hard enough to make her lose consciousness. The victim’s injuries were extensive. At the time of the kick, she bled heavily from her right eye, face, nose and mouth. The kick fractured her orbital eye socket. To remedy the harm, she needed to undergo surgery; a metal plate was secured permanently to the left side of her face to support her facial bones. She continues to suffer from related migraines. At the time of the kick, Mr Lawrence blamed the victim, saying it was her fault he had become angry.
[4] The second incident occurred almost two and a half years later. The two had continued their relationship. They lived together at this time and had a child, who was still an infant at the time of the incident. Mr Lawrence and the victim got into an argument, after which the victim told Mr Lawrence to leave the house. He took hold of the child and threatened to take the child away from the victim. When the victim attempted to get the child from Mr Lawrence, he used one hand to lift the victim off the ground by the front of her shirt and threw her onto a clothes horse. When she got back up and tried to get to the child a second time, he grabbed her throat – preventing her from breathing – for about 30 seconds, while continuing to threaten to take the child away. As the victim made efforts to pull Mr Lawrence’s hand off her throat, he bit her twice: once on the arm and once on the finger. As a result of the incident, the victim received red marks around her throat, a raised red mark on her arm, bleeding and swelling on her finger, and marks on her chest.
[5] The conviction for attempting to pervert the course of justice came about from Mr Lawrence contacting the victim by phone while he was on remand in prison – in breach of a temporary protection order requiring no contact between the pair – in an
attempt to convince her to change her statements to the police. Mr Lawrence had gone to some lengths to be able to access the victim’s phone number and to contact her. He asked her to tell the police that she had lied about the kick and about the strangling, but not about the biting. At that time, Mr Lawrence was denying the most serious elements of the offending.
Criminal history
[6] Mr Lawrence has a number of previous convictions for offending between 2006 and 2023. Most are traffic convictions and relate to non-compliance with community-based sentences. There are some convictions relating to possession of drugs, including methamphetamine, and two convictions for supplying drugs, one of which related to methamphetamine. He appears to have only one previous conviction for violent offending, a conviction for a common assault that occurred about two years before the first domestic violence incident.
The sentencing decision of Judge Hikaka
[7] The Judge applied a starting point of seven years for all of the offending, adjusted down from seven years and 10 months for totality. Mr Lawrence does not dispute the starting point taken in this appeal, so I do not go on to consider the offending itself beyond the description I have given of it.
[8] The Judge then applied a 25 per cent discount for Mr Lawrence’s guilty plea before going on to describe the various factors personal to Mr Lawrence.
[9] The Judge accepted that Mr Lawrence’s attempts to be free from the influence of methamphetamine had been unsuccessful and that he was under the influence of methamphetamine at the time of the domestic violence offending – although not while he was calling the victim in an attempt to pervert the course of justice.
[10] The Judge went on to discuss the reports available. He drew on a number of relevant features of the reports. I will discuss the reports separately.
[11] The Judge gave a combined discount of 15 per cent for Mr Lawrence’s remorse and upbringing. He said that Mr Lawrence’s upbringing including his use of drugs and in particular methamphetamine had impacted on Mr Lawrence as an adult and his offending. However, he said that this was tempered by the number of lost opportunities in Mr Lawrence’s history to deal with those factors. The Judge gave as an example the way in which Mr Lawrence had received a sentence of community detention and supervision for a serious methamphetamine charge, saying that the intent of that sentence was to allow Mr Lawrence to make good on the motivation he had expressed then to deal with the issue. Yet, the Judge said, Mr Lawrence had not done so. The Judge did accept that Mr Lawrence regretted his actions and was remorseful based upon the “successful restorative judgment process”.
[12] The Judge applied the two discounts for upbringing and remorse to reach a sentence of four years and two months’ imprisonment. He then reduced that by a further two months because of the comments made by Mr Lawrence that “provide a future of [him] doing much better”, saying that, if Mr Lawrence was to put into action those words, then everybody would feel better about him being in the community. This amounted in total to an 18 per cent discount.
[13] The end sentence was reduced to four years’ imprisonment with the effective discounts totalling 43 per cent from the original starting point of seven years’ imprisonment.
Approach on appeal
[14] In Tutakangahau v R the Court of Appeal confirmed that a successful appeal under s 250(2) of the Criminal Procedure Act requires both the identification of an error and the need for the appeal Court to be satisfied that a different sentence “should” be imposed.7 The Court does not start afresh or simply substitute its own opinion for that of the original sentencer.8 Rather, the appellant must show there is a material error before the Court goes on to form its own view of the appropriateness of the sentence.9
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
8 At [30].
9 At [30].
The Court will not generally intervene unless a sentence is manifestly excessive10 and whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.11
[15]As noted in Johnson v New Zealand Police, the error the principle recognises:12
… that reasonable minds can differ about where an appropriate sentence should sit within an available range. It reflects underlying purposes important to the effective administration of justice, including maintaining public confidence in the sentencing process and ensuring finality and predictability for defendants and victims.
[16] In sentencing Mr Lawrence, the Judge was required to have regard to the purposes and principles of the Sentencing Act 2002.
Parties’ positions
[17] Both parties accept that the Judge’s effective discount for personal factors, excluding the guilty plea, was 18 per cent.
[18] Counsel for Mr Lawrence says that discount was insufficient. It is said that the s 27 report discloses a clear nexus between Mr Lawrence’s upbringing and the offences he has committed, with significant exposure to violence throughout his formative years contributing to what is said to be a lower level of culpability. It is said that genuine remorse was shown, as demonstrated by the restorative justice conference which is said to have been very positive.
[19] The Crown has filed helpful submissions opposing the appeal. It says the discounts given were in the range available for the Judge and I come on to consider some of the authorities mentioned alongside the Crown’s comments as I discuss the factors that are in question here.
10 At [35].
11 At [30]–[36].
12 Johnson v New Zealand Police [2023] NZHC 3748.
Discussion
Upbringing and addiction
[20] As the Supreme Court said in Berkland v R, a background factor personal to an offender is relevant to sentencing where it helps to explain why the offender has come to offend in some rational way.13 Background factors can include those that have causatively contributed to the offending – such as more diffuse drivers or intergenerational sources of offending – rather than only those that have been an operative or proximate cause. However, there is a point at which background factors no longer assist in explaining offending.14
[21] There are two such factors that the Judge applied to find a discount, although he assessed them together: as I say, the upbringing and his addiction to methamphetamine.
[22] The Crown says that Mr Lawrence’s upbringing is not a strong causative contributor to his offending. It says that the negative influence of his father was tempered by strong role models in his stepfather and in his mother. It says that the strength of the nexus between his upbringing and offending is tempered also by the period of time during which Mr Lawrence went without committing serious violent offending, referring to a passage in Berkland15 which identified extended periods of offence-free living as being relevant to the exercise, although it did say that it is of course a matter of judgment.
[23] The Crown has submitted that the discount given by the Judge was within range, referring to a number of cases. One of them is Lee v R,16 where a discount of five per cent was given for the defendant’s “extremely disadvantaged childhood” and exposure to violence and drugs at a young age. I observe that this case was decided before the Supreme Court’s decision in Berkland.
13 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].
14 At [110].
15 At [121].
16 Lee v R [2019] NZCA 539.
[24] Berkland itself was the second case referred to and in that case the defendant was sentenced for serious drug supply charges.17 The Court considered that he should have a discount of 10 per cent for his history of depravation and trauma and the role of addiction in his offending.
[25] Kreegher v R18 is the third case mentioned by the Crown where the Court of Appeal considered that a discount of 10 per cent should be awarded for the difficult upbringing of the appellant, including physical abuse from his father and drug abuse from a young age.
[26] Another case mentioned is Biddle v R19 where a 12 per cent discount was seen as appropriate for one of the defendants for his upbringing in poverty where he was subject to physical abuse and neglect.
[27] High discounts have been available where causal connections between background factors and offending is established clearly. Fifteen per cent discounts can be seen as tenable with discounts up to 30 per cent has been regarded as possible at the upper end.
Reports
[28] I am going to refer now, in a little more detail than I often might, to the reports that the Court has received, in order to do some justice to them.
[29] The Provision of Advice to Courts report (the PAC report) describes Mr Lawrence as having said to the report writer that “I deserve the lag. I have accepted that because I laid a hand on her. It is not right.” He said “It’s disgusting”. He reported feeling genuinely scared about the thought of spending a long time in prison because, he said, it prevents him from being able to spend time with his children. He said to the report writer that he snapped one day, that it was not an excuse but he should not have done it. He referred to having a longstanding drug addiction which is well demonstrated through his convictions. He referred to his willingness to engage in any
17 Berkland v R, above n 13.
18 Kreegher v R [2021] NZCA 22.
19 Biddle v R [2021] NZCA 57.
rehabilitative requirements. He expressed the importance of his future being pro- social and offence-free so that he could be “a reliable and stable father for his children”. Mr Lawrence did, the report writer noted, engage meaningfully in a departmental short rehabilitative programme that he was attending four days a week. Unfortunately, due to his reoffending he was exited from the programme. Mr Lawrence has, the report writer noted, been transferred to and from different prisons throughout his time on remand and therefore during that time was not able to engage in rehabilitative activities.
[30] Negative associates have commonly been present throughout Mr Lawrence’s life, the report writer notes, explaining that his children are everything to him. He spoke to the importance of needing to change priorities to ensure he does not miss any more milestones. The report writer observed that he had completed the Salvation Army Bridge programme while on supervision in 2020 and his probation officer confirmed that he continued with most post-counselling sessions alongside Narcotics Anonymous meetings. And it is noted in the report that Mr Lawrence expressed motivation to continue to attend meetings of that type in the future.
[31] I turn to the s 27 cultural report prepared by Susan Anderson. In this report the report writer looked, first, at s 27(1)(a) factors. She described Mr Lawrence’s mother as having significant drug issues as well. She refers to Mr Lawrence being very close to her, describing her as his best friend, his support and his rock. Mr Lawrence described his father as a violent man and indicated that he has nothing to do with him. Mr Lawrence has an elder child to another person. He said that the relationship between the mothers of both of his children is good now, that they are in touch, that they have meals together, for example, for the sake of the children. He has photos of the children over his prison cell walls.
[32] He referred to having been around cannabis and meth his whole life. He referred to his parents smoking cannabis every day and to them being addicted when he was very young. The family lived in a town in the Central North Island and his mother and father split up when he was 18 months old after his father had tried to kill them. Mr Lawrence referred to his father trying to shoot them both and described he
and his mother as running to the neighbours and his moving to a different geographical area because they were so worried.
[33] The report writer refers to Mr Lawrence’s mother being in a relationship with another person for a time and refers to that being a violent time. The report writer refers then to Mr Lawrence’s mother marrying another person who Mr Lawrence classed as a dad. The other person was with Mr Lawrence’s mother until Mr Lawrence was 21 years old.
[34] He referred also to having to go to his father’s house because the Court had ordered that as part of arrangements between his parents. He referred to his mother having tried to hide him and to his father having to have access. He referred to staying with his father as being terrifying, to his father giving him hidings and screaming at him to the extent that he was scared. The verbal abuse, Mr Lawrence said, was worse than the hidings, and sometimes he was so scared that he would get another hiding for his reaction to his father’s violence. He was often beaten when his father came home from the pub. Mr Lawrence described the way in which his father would try to burn him on occasions.
[35] Mr Lawrence’s mother recalled also the violence of his father and how he, to use her words, abused Mr Lawrence so badly one day that he could not go to school for a week. Mr Lawrence’s mother referred to Mr Lawrence as being petrified. It was, she said, extreme and his father put him through hell.
[36] Mr Lawrence was abused sexually by a third party when he was very young. He told his mother about the episode and went to counselling to endeavour to deal with it.
[37] Mr Lawrence joined a gang after being in jail. He came out of jail when he was 21 and became a patched member soon afterwards. He joined, he said, because he was scared in jail and wanted to feel safe. He left the gang after his first child was born.
[38] The report writer goes on to look at s 27(1)(b) factors – the way in which Mr Lawrence’s background may have related to the commission of the offence. She referred to Mr Lawrence going to about seven primary schools including Stratford Primary School, and to moving around a lot. She referred to his time at Stratford High School and to him, as a result of his upbringing, smoking and selling cannabis and therefore being required to leave school at aged 14. When his mother and her partner moved to Australia, he then was dependent for support upon his friends. He smoked daily, was addicted to methamphetamine and other drugs. He began selling methamphetamine full time. He was, he said, beaten and kidnapped over drugs, at which point he began to realise what was important in his life. He found the mother of his first child and that was, for a time, a positive relationship. He went into rehabilitation for a period of time when his son was about three years old, accepting, though, that he only half-committed and ended up back in jail. He says that thinking about his children keeps him solid and determined not to go back.
[39] In looking at his factors under s 27(1)(c) – processes to endeavour to resolve issues relating to the offence – it is said in the report that Mr Lawrence has described his behaviour as “repulsive, disgusting and unnecessary”. He noted that he was high on meth at the time but did not offer that, the report writer says, as an excuse for his behaviour. He said that he had a lot of drugs but “that’s no excuse”. It was part of his life, he said. He had never laid a hand on his partner before, he said, and he described it as being a complex relationship.
[40] Turing to s 27(1)(d) – support from family, whānau or community – Mr Lawrence says that he feels well supported by his mother and his ex-partners and, in different ways, by two close friends that he has. The report writer refers to Mr Lawrence doing counselling with a mental health professional in prison and having one-on-one counselling after rehabilitation.
[41] Mr Lawrence’s ex-partner has referred to her support for him and noted that his friends who support him are good people. The report writer concludes that the adverse experiences that I have touched upon here have shaped who Mr Lawrence is and how he responds to the challenges of life. She spoke of how, without ongoing help, his childhood trauma has resulted in many years of criminal behaviour, drug use
and addiction. It is said that he understands the challenges of the journey that lies ahead of him and that he will need to be supported by professionals and his family in the change process if he is to live a healthy and happy lifestyle and to become a productive member of the community.
[42] Having dealt with the reports, as I say, in a little more detail than I often might, I turn to assess them.
[43] I cannot support entirely the submission that Mr Lawrence’s positive relationships in his lifetime have tempered his exposure to violence in his formative years. There were positive relationships but, nonetheless, the violence continued at the hands of his father and he was enveloped in a world of drugs for his whole life. It became the thing that he turned to in order to block out other things when the going got tough. It is most certainly no excuse but it was normalised as a part of his upbringing. It was around him, quite apart from the trauma he suffered at the hands of his father. And, together with the severe emotional scarring from which he suffered, there is in my view some explanation as to how he came to offend. I cannot, in addition
– although I see entirely the relevance of the point – see the periods when Mr Lawrence did have offence-free living as tempering the concerns that I find having read the reports.
[44] I cannot agree with the Judge that any discount should be tempered by the opportunities Mr Lawrence had to rehabilitate. He has taken opportunities and I refer, in looking at the PAC report, to the rehabilitative programmes that he had undertaken, including through the Salvation Army Bridge programme. He has not failed altogether but the causative factors have always been pervasive. They are compound in nature.
[45] While my job is not to substitute my opinion for that of the Judge and, while reasonable minds can well and truly differ, I feel that the factors that I have discussed under this head take the circumstances here to a part of the spectrum for available discounts that the Judge did not have in mind. Because the Judge has assessed upbringing and remorse together, I will consider remorse before drawing a final conclusion on discounts.
[46] To do so, I look at the restorative justice report that was prepared in March this year. The report records an apology that was made by Mr Lawrence to his former partner, the victim, during the restorative justice conference. He said “I am sorry, you didn’t deserve to be treated that way by anyone, especially me. I hope one day I can prove it to you and one day you can forgive me”.
[47] The writer of this report referred to Mr Lawrence as having said that he snapped one day, to him having said that that was not an excuse and that he should not have done it. It records him saying how sorry he is to the victim and as saying that he does not remember kicking her but he knew that he did. He said that he had been awake for days at a time. He said, to use his words, that he felt so guilty that he had harmed her, so he blamed her because he did not know how else to deal with it. He referred to his methamphetamine use going through the roof. He said “The drugs are no excuse. I can use it for maybe half of the reason, but I made the decision to harm her not the drugs”. He said during the restorative justice conference “I’ve never taken it out on my kids. I’m not a bad parent, but I can understand where that fear might have come from for [his victim]. It hurt me a lot not being able to see baby as much”. He said that he understands “why that would have hurt her so much, and I should never have said some of things that. I am sorry.”
[48] There was a discussion in the report about Mr Lawren8ce endeavouring to have the victim change her victim impact statement and on that score he said “I feel sorry that I even asked her to do that. I guess I was scared that I was going to get into trouble. She had written me an email saying she was sorry, and that she missed me, so I wanted to hear her voice. That’s what started us having contact”. He said “I am sorry, you didn’t deserve to be treated that way by any one, especially me. I hope one day I can prove it to you and one day you can forgive me”.
[49] The report writer observes that the victim felt that Mr Lawrence’s apology sounded genuine and that it was good to hear. The report refers to Mr Lawrence as going on to say “I don’t blame you, I blame myself and also the drugs. Don’t ever feel guilty for me being in here, I have no ill feelings towards you. I thank you in a way because I needed to wake up or it could have been much worse. You deserve better
than that and don’t ever take second best, you deserve the best. It’s not ok what I did no matter what.”
[50] Once more, I have referred to that report in a little more detail than one often might to reflect upon the nature of the feelings that were expressed by Mr Lawrence. The Judge did find that Mr Lawrence was remorseful and that he regretted the circumstances of his violence. He accepted that the restorative justice conference was positive and successful. However, he was concerned about Mr Lawrence’s attempts to convince the victim to change her evidence. I acknowledge that but I do not see it ultimately as affecting the remorse expressed which included remorse over that episode itself.
[51] I cannot accept entirely the position advanced that Mr Lawrence blamed drug use as a way to escape responsibility. Mr Lawrence did refer to the part that his drug use played but, as I have said, he went to accept that the drugs were no excuse.
[52] I acknowledge the submissions that the Crown makes in dealing with remorse here, that the authorities that are relevant are those of Poi,20 Olsen21 and Rowles.22 In Poi, five per cent discount was given, in Olsen a five per cent discount was given for a defendant who had participated in a very successful restorative justice conference and in Rowles, an eight per cent discount was given for remorse for a significant effect by the defendant to show his remorse in a tangible way.
[53] I acknowledge the point made for the Crown that in its view the remorse here was not as high as that acknowledged and included in Rowles and is comparable with Olsen.
[54] However, for the reasons that I have given, I see the remorse expressed in the restorative justice report as being entirely genuine, as being expressed and emphasised in different ways and in terms that persuade me that Mr Lawrence’s remorse is tangible and palpable. I do not therefore see that the discount for remorse should be no more than five per cent. I do see the remorse, as I say, as not just being words; the depth of
20 Poi v R [2015] NZCA 300 at [8].
21 Olsen v R [2023] NZHC 2967 at [31].
22 Rowles v R [2016] NZCA 208 at [18].
the remorse is demonstrated through the detailed and fulsome way in which feelings have been expressed – not only expressed but explained.
[55] Accordingly, this is one of those cases in which I do see the discount under this head as being towards the high end of the scale that would be reasonable in the circumstances.
[56] The Judge assessed the discounts collectively for upbringing and remorse, as I have said, at 18 per cent. I do see this as being low in a material way. When the available information is considered purposefully as I have endeavoured to do, I see the discount of 15 per cent for Mr Lawrence’s upbringing and seven per cent for his remorse as being discounts that could be considered as being appropriate – 22 per cent altogether. That leads me to the view this is a case that does go beyond the differences that there can be between reasonable minds, such that the sentence imposed can be described as being manifestly excessive.
[57] But would interference over a four-month difference amount to judicial tinkering? I do not think it would. It is, in percentage terms, a greater reduction than that which has been regarded as tinkering.
[58] The appeal is allowed. The discount for the guilty plea of 25 per cent plus a discount of 22 per cent for the factors that I have described would result in an overall discount of 47 per cent. From a starting point of seven years, that produces a sentence of three years and eight months. The sentence of four years’ imprisonment for the charges identified at the beginning of this decision is quashed. A sentence of three years and eight months’ imprisonment is substituted.
Radich J
Solicitors/Counsel:
Paul Keegan, Barrister, New Plymouth for Appellant Crown Law, Wellington for Respondent
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