Lochhead v The Queen
[2020] NZHC 2334
•8 September 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000102
[2020] NZHC 2334
BETWEEN JASON HEATH LOCHHEAD
Appellant
AND
THE QUEEN
Respondent
Hearing: 3 September 2020 Counsel:
S Teki-Clark and M Smit for the Appellant A Harvey for the Respondent
Judgment:
8 September 2020
JUDGMENT OF DOOGUE J
This judgment was delivered by Justice Doogue on 8 September 2020 at 3.30 pm.
Registrar/ Deputy Registrar Date:
Solicitors:
Crown Solicitor, Christchurch
LOCHHEAD v R [2020] NZHC 2334 [8 September 2020]
Introduction
[1] On 21 July 2020, Judge Gilbert sentenced the appellant, Jason Heath Lochhead, to two years, three months’ imprisonment for:1 attempting to dissuade a witness;2 threatening to kill (representative);3 publishing an intimate visual recording;4 breach of protection order (representative);5 and wilful damage (representative).6
[2] Mr Lochhead appeals the end sentence on the basis that it is manifestly excessive, because the Judge gave insufficient discounts for his guilty pleas, his mental health issues, and the time he spent on curfew.
[3] The respondent submitted that the end sentence was available to the Judge, and the appeal should be dismissed.
Background
Factual background
[4] Mr Lochhead and the victim have been in a relationship for over five years. A final protection order was granted in favour of the victim on 11 December 2018.
[5] On three occasions in August 2019, Mr Lochhead went uninvited to the victim’s address and refused to leave. On one occasion, he approached the victim’s vehicle and punctured two tyres, using a knife he had brought with him. On another occasion, he smashed a bedroom window. Mr Lochhead was arrested as a result of these actions. He was granted bail, with a condition not to contact the victim.
[6] Between 24 January 2019 and 4 November 2019, Mr Lochhead and the victim exchanged multiple voice messages over the mobile application WhatsApp. During
1 R v Lochhead [2020] NZDC 14301.
2 Crimes Act 1961, s 117(a); maximum penalty seven years’ imprisonment.
3 Section 306; maximum penalty seven years’ imprisonment.
4 Section 216J; maximum penalty three years’ imprisonment.
5 Family Violence Act 2018 ss 90(a), 9 and 112(1)(a); maximum penalty three years’ imprisonment.
6 Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment or fine of $2,000.
this period, Mr Lochhead sent around 575 messages to the victim. These messages contained numerous threats of violence.
[7] Seven of the messages contained explicit threats to end the victim’s life. Judge Gilbert referred to two specific messages in his sentencing decision.7 They covered matters such as slitting her throat, putting her into a body bag, cutting off her head, and, if the police arrived, saying that she would die.
[8] Two messages demanded that she go to a police station and have her lawyer withdraw her statements and the charges that were in train against him. Further, if she did not, he threatened that he would gain full custody of her daughter and she would never see her again.
[9] On 23 November 2019 Mr Lochhead sent a video of the naked victim, taken in 2017, to her mother.
The charges
[10] Mr Lochhead first appeared in court on three charges of contravening a protection order and two charges of wilful damage on 23 August 2019. The charges progressed to a case review hearing on 4 November 2019, and were set down for a judge-alone trial on 12 February 2020.
[11] The judge-alone trial did not proceed because on 12 February 2020, police laid additional charges of breaching a protection order, perverting the course of justice, and threatening to kill. On 31 March 2020, police charged Mr Lochhead with publishing an intimate visual recording.
[12] All charges ran alongside one another until resolution was reached on 19 May 2020. On this date, police consolidated the breach of protection order and wilful damage charges into two representative charges. The summary of facts remained the same, as did the substance of the allegations.
7 R v Lochhead, above n 1, at [10].
The District Court decision
[13] The Judge reached a total starting point of three years, three months’ imprisonment by:
(a)Adopting a starting point of 12 months’ imprisonment for the representative breach of protection order and wilful damage charges. He observed that they were a connected series of events and involved a degree of premeditation.
(b)Adopting an independent starting point of two and a half years’ imprisonment on the dissuading a witness and threatening to kill charges. The Judge remarked on the sheer number and nature of the messages and that he “[could not] recall having seen a series of texts or threats that are so vitriolic, hateful and graphic”.8
(c)Applying a six-month uplift for the charge of publishing an intimate visual recording. The Judge observed that the uplift would have been higher, but for the limited publication.
(d)Applying a totality discount of nine months.
[14] The judge then applied a three-month uplift for the fact that the most serious offending occurred whilst Mr Lochhead was on bail with non-contact conditions and a protection order in force, leading to a sentence of three years, six months’ imprisonment.
[15]The Judge then applied two discounts:
(a)He gave 15 per cent for Mr Lochhead’s mental health issues and the fact that he had tried to get some counselling. The Judge observed that while Mr Lochhead’s mental health issues were related to the offending, his reactions as a result of the breakdown were extreme and
8 At [12].
totally unjustified, and were different from a psychotic illness, for example.
(b)He gave 20 per cent for guilty pleas. The Judge observed that the pleas were not entered at the first opportunity and that the amendments had the effect of “wrapping up” the charges.
[16]This resulted in an end sentence of two years, three months’ imprisonment.
[17]The Judge concluded:
[47] I have thought very carefully about this, because the decision to send any person to prison is a big one, especially for the first time. However, overall, I consider that the offending was persistent and very serious. It represented a sustained campaign against the same woman over several months, aggravated by your very real attempt to interfere with the course of justice.
[48] I am satisfied that an end sentence of 27 months is a proportionate response to your offending and is the only appropriate sentence having regard to the purposes and principles that I am required to apply.
[18] Immediately following the sentencing, Mr Lochhead’s counsel applied for bail pending appeal. As part of that argument, counsel submitted that the Judge should have given credit for time Mr Lochhead had spent on bail. In his decision declining bail pending appeal, the Judge remarked:9
[7] One specific point that Mr Teki-Clark has raised is that I did not appear to give Mr Lochhead any credit for the time he has spent subject to restrictive bail conditions including a curfew. I heard submissions on that but, given that Mr Lochhead has breached his curfew in the past, apparently three times according to the police intelligence system, and given that the most serious offending occurred whilst on bail, I thought that any credit on those grounds would not be merited.
Approach on appeal
[19] This appeal is brought under s 244 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and therefore must only be
9 R v Lochhead [2020] NZDC 14094.
allowed if the Court is satisfied that there has been (for any reason) an intrinsic error in the sentence imposed, and that a different sentence should be imposed.10
[20] The sentence must be either manifestly excessive or inappropriate, if the appellate court is to interfere with the discretion.11
[21] The focus is on the final sentence rather than the exact process by which it was reached, and whether the sentence was in the available range.12 As articulated in R v Peters:13
As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed, rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but it is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component.
Issues on appeal
[22] No issue is taken with the starting points adopted by the Judge, the totality adjustment that was made, or the uplift that was imposed on the basis that some offending occurred while Mr Lochhead was on bail.
[23] The central focus of the appeal is that the Judge failed to consider and provide adequate discount for all of Mr Lochhead’s mitigating factors. Mr Teki-Clark, for Mr Lochhead, submitted that if those factors are given appropriate weight, an end sentence of home detention is the appropriate outcome.
[24]Therefore, the appeal poses three questions:
(a)Did the Judge give insufficient credit to Mr Lochhead for his early guilty pleas?
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
11 Affleck v Police [2017] NZHC 3220 at [9].
12 Ripia v R [2011] NZCA 101 at [15].
13 R v Peters CA12/03, 14 May 2003 at [13].
(b)Did the Judge give sufficient credit for Mr Lochhead’s mental health diagnoses?
(c)Did the Judge fail to take into account the time that Mr Lochhead spent on restrictive curfew?
Preliminary issues
[25] Before dealing with those substantive issues, it is necessary to address a range of preliminary issues, relating to various pieces of evidence relied upon by the Judge.
Aggravating factors
[26] Mr Teki-Clark submitted that the Judge relied on Mr Lochhead’s criminal history showing three breaches of bail, however only one of these was certified (a breach of curfew on 27 September 2019). Mr Teki-Clark noted the onus on the Crown in s 24(2)(c) of the Sentencing Act 2002 (the Act) to prove, beyond a reasonable doubt, the existence of any disputed aggravating fact.
[27] The Crown conceded this point, and I therefore approach the appeal on the basis that only this one breach of bail occurred.
Mitigating factors
[28] Mr Teki-Clark submitted that the Judge failed to give an adequate discount for Mr Lochhead’s time spent on restrictive bail, with reference to the onus on the Crown in s 24(2)(c) of the Act to negate beyond a reasonable doubt any disputed mitigating fact raised by the defence.
[29] I do not consider this to be a matter for s 24; it is simply an appeal against the discretion of the Judge to grant, or not, a discount for time spent on bail (dealt with substantively at [62]-[66] below). The parties do not dispute the amount of time Mr Lochhead spent on restrictive bail conditions.
The Judge’s reference to how widely the video was published
[30] Mr Teki-Clark submitted that the Judge incorrectly made his decision based on an error as to how widely the video was published. I note the following statements from the Judge:
[19] [Counsel for the Crown] says that upon closer inspection it seems that the video in question was in fact distributed more widely than just her mother but, given that the summary of facts was agreed to some months back, I think it is right for me just to park that suggestion at this stage.
[40] In my view, a six month uplift is appropriate for the intimate visual recording charge. I would have imposed a higher uplift but for the limited publication of that image.
[31] It is clear that the Judge relied only on the summary of facts, which states the recording was sent only to the victim’s mother. I therefore reject this submission.
The Department of Corrections pre-sentence report
[32] Mr Teki-Clark submitted that a section of the Department of Corrections pre-sentence report (the pre-sentence report) went beyond the appropriate scope of a pre-sentence report, as per s 26 of the Act. The section he objects to is two paragraphs long, detailing Mr Lochhead’s reaction to the end of his relationship with a previous partner, and his reaction to the end of his relationship with the victim in the present case.
[33] While I do not necessarily accept Mr Teki-Clark’s submission that the pre-sentence report goes beyond the appropriate scope, it is a moot point regardless. The Judge did not rely on this section of the pre-sentence report explicitly, and does not appear to have relied on it more generally to any major extent. Additionally, the general theme of Mr Lochhead’s reaction to the end of his relationship with the victim is covered in more detail in the summary of facts, and the report of clinical psychologist Craig Prince (which Mr Teki-Clark did not object to). In particular, I note the Judge quoted from Mr Prince: “Unfortunately, [Mr Lochhead] has engaged in persistent problematic behaviour directed at the complainant in an effort to rekindle the relationship, or to frighten or punish her for rejecting him.”14
14 R v Lochhead, above n 1, at [17].
First ground of appeal: Did the Judge give insufficient credit to Mr Lochhead for his early guilty pleas?
[34] The Judge held that a 20 per cent discount was appropriate, to account for Mr Lochhead’s guilty pleas.
Appellant’s submissions
[35] Mr Smit, for Mr Lochhead, submitted that the pleas were entered at the first reasonable opportunity, and the full discount of 25 per cent ought to have been afforded to the appellant.
[36] Mr Smit submitted the following contributed to the timing of the entry of the guilty pleas, and that the pleas were entered at the first reasonable opportunity:
(a)a breakdown in the relationship between Mr Lochhead and his counsel, which resulted in a change in legal representation and caused further delays;
(b)the change in the charging landscape with the first set of charges being amended and made representative;
(c)full disclosure was not available when Mr Lochhead first appeared in relation to the second tranche of charges on 12 February 2020; and
(d)delays caused by the COVID-19 pandemic.
[37] In summary, he submitted the guilty pleas in relation to the second tranche of charges were made at the first reasonable opportunity after disclosure had become available and Mr Lochhead was informed of the case against him.
[38] Mr Lochhead also said that he pleaded guilty as soon as he had received full disclosure in relation to the second tranche of charges. Mr Smit argued that the situation is similar to the case of Hohipa v R, where the offender had pleaded guilty only after significant amendments to the charges and the summary of facts. The delay
in pleading also came about because of shortcomings in disclosure. The Court of Appeal accepted that the pleas nevertheless came at the first reasonable opportunity.15
Respondent’s submissions
[39] Mr Harvey submitted that the guilty pleas were not entered at the first reasonable opportunity. Mr Lochhead first appeared in August 2019, and the file had been prepared for trial at the time the new offending was discovered and charges laid.
[40] While conceding the charges were ultimately amended to representative charges, Mr Harvey pointed out that the substance of the charges remained the same.
[41] There was no material to suggest that Mr Lochhead had indicated a willingness to plead to any charges prior to May 2020. Mr Harvey submitted a credit of 20 per cent was generous in the circumstances.
Analysis
[42] The Judge correctly identified that the assessment of a plea discount is a qualitative one.16 As the Supreme Court held in Hessell v R:17
Whether the accused pleads guilty at the first reasonable opportunity is always relevant. But when that opportunity arose is a matter for particular inquiry rather than formalistic quantification. A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea.
[43] In relation to the first set of charges, whilst they were ultimately amended, the substance of the charges remained the same. What Mr Smit described as “significant changes to the charging landscape” cannot be constituted by the above. The case of Hohipa, where the offending originally described was “fundamentally different to and substantially more serious than the offending [the defendant] later admitted” is therefore clearly distinguishable.18 I agree with the Judge’s conclusion that it cannot
15 Hohipa v R [2015] NZCA 485.
16 R v Lochhead, above n 1, at [45].
17 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
18 Hohipa v R, above n 15, at [30].
realistically be considered that the pleas were entered at the first reasonable opportunity,19 and I therefore consider the discount of 20 per cent appropriate.
Second ground of appeal: Did the Judge give sufficient credit for Mr Lochhead’s mental health diagnoses?
Fresh evidence: the victim’s medical records
[44] Before turning to my analysis of this ground of appeal, it is necessary to deal with a preliminary matter: Mr Teki-Clark sought to rely on fresh evidence. In an extremely unusual move, Mr Teki-Clark tendered the victim’s medical records. It is unclear to me how Mr Lochhead and his counsel came to be in possession of the document.
[45] On appeal, the question for the Court is whether the sentence imposed was erroneous and a different sentence should be imposed. The appellate process does not permit new evidence on a sentence appeal unless the evidence is credible, fresh and cogent.20
[46] The evidence is a report written by a doctor for the Canterbury District Health Board, and appears to be credible.
[47] There is some dispute as to whether it is fresh. Mr Teki-Clark submitted that counsel for Mr Lochhead attempted to put the document before the Judge, but he refused it. Mr Harvey disputed this, submitting that counsel for Mr Lochhead referred to the medical records in his oral submissions, but declined to provide the Court or the Crown with a copy. For the sake of the argument, I am prepared to accept that the evidence is fresh for the purposes of the present appeal.
[48] However, most importantly, I do not consider the evidence is cogent. It is not relevant to the question before me. Mr Teki-Clark appeared to rely on the victim’s medical records to show that the cause of Mr Lochhead’s diagnosis was the victim’s
19 R v Lochhead, above n 1, at [45].
20 Orchard v R [2019] NZCA 529 at [23]; citing the Criminal Procedure Act 2011, s 250(2); and Tutakangahau v R [2014] NZCA 279 at [30]-[31]; and Mark v R [2019] NZCA 121; and Lundy v R [2013] UKPC 28; [2014] 2 NZLR 273 at [120].
medical state. The Judge accepted Mr Prince’s report (which provided context about the victim and her medical state), accepted his diagnosis, and applied a discount accordingly. I also note the Judge did acknowledge the context of the victim’s mental health:21
[16] [Counsel for Mr Lochhead] has tried to put some context around all of this. He submits that the complainant herself was undergoing a mental health crisis at the time, that the relationship was on and off and, that what you did needs to be seen in the context of mutual mental health episodes.
[17]It seems that she may well have had mental health difficulties…
[49] Connecting Mr Lochhead’s diagnosis any more specifically to the victim’s medical history would not have altered the sentence. I am also concerned this line of argument comes dangerously close to victim blaming. I decline leave to adduce the evidence in the form of the victim’s medical records.
Appellant’s submissions
[50] Mr Smit submitted that Mr Prince’s opinion is internally inconsistent, saying “he acknowledges but then ignores the before mentioned mental health disorder”.
[51] Mr Smit said it is clear that the Judge was influenced by Mr Prince’s viewpoint in assessing Mr Lochhead’s moral culpability. The Judge’s error, Mr Smit submitted, was that the Judge accepted Mr Lochhead has a diagnosed mental illness that was in part causative of the offending, but still held him entirely accountable as though he were not suffering from the disorder at the time. In summary, he submitted that a mental health discount in the range of 25 per cent is appropriate in the circumstances.
Respondent’s submissions
[52] Mr Harvey pointed to the fact that Mr Lochhead sought a 20 per cent discount for his mental health in the District Court, and is now submitting that the Judge ought to have given 25 per cent credit.
21 R v Lochhead, above n 1.
[53] Mr Harvey submitted that Mr Prince diagnosed Mr Lochhead with adjustment disorder, but did not state that the offending was as a result of the disorder. In fact, Mr Prince noted that Mr Lochhead has “engaged in persistent problematic behaviour directed at the complainant in an effort to rekindle the relationship, or to frighten or punish her for rejecting him”.
Analysis
[54] Determining the appropriate level of discount for mental health issues must be assessed by reference to the extent to which the mental health factors at play diminished the offender’s moral culpability. The weight to be given to the consideration will depend on evidence supporting the view that the condition contributed causally to the offending.22
[55] In E v R, the Court of Appeal held that discounts of between 12 and 30 per cent may be available, depending on the circumstances, where there is evidence of causative mental health issues.23
[56] In Orchard v R, the appellant suffered a serious head injury at work which precipitated a change in behaviour and resulted in him crashing his car with his ex-wife and two children. The Court readily accepted the causal nexus, and found that a discount of 20 per cent was appropriate to reflect his reduced culpability.24
[57] It is clear from the evidence that was before the Judge in the present case that Mr Lochhead was suffering from a significant adjustment disorder at the time of the offending, which had a detrimental effect on his day-to-day living. It is also clear this impairment was in part causative of the offending, although the causality is not absolute as it was in Orchard. The disorder was a result of the significant stressors in Mr Lochhead’s life, including the breakdown in his relationship with the victim, and most significantly the subsequent loss of his child to Oranga Tamariki.
22 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [68]; and Gotz v R [2019] NZCA 99
at [20].
23 E (CA 689/10) v R, above n 22.
24 Orchard v R, above n 20.
[58] The Judge recognised the diagnosis, but stated “your feelings of loss and the subsequent difficulties in adjusting are qualitatively different from a psychotic illness for example. Your reactions were extreme and totally unjustified.”25 I consider a discount of 15 per cent was appropriate.
Third ground of appeal: Did the Judge fail to take into account the time that Mr Lochhead spent on restrictive curfew?
Appellant’s submissions
[59] Mr Lochhead spent six days in custody as a result of the first tranche of charges, from 23 August to 29 August 2019. Following his release, he was then subject to a restrictive curfew of 8.00 pm to 6.00 am each day. This restrictive curfew was in place from 29 August 2019 until the sentencing date of 21 July 2020. Mr Smit said the Judge should have taken that into account in the final sentence.
[60]Mr Smit submitted a discount of three months would have been appropriate.
Respondent’s submissions
[61] Mr Harvey argued that Mr Lochhead was not subject to electronically monitored bail (EM bail), did not comply with the conditions of his bail, and reoffended against the victim during this period, and therefore it was appropriate for the Judge to decline credit.
Analysis
[62] Section 9(2)(h) of the Act requires the Court to take into account, as a mitigating factor, that the offender spent time on bail with an EM condition. The Court of Appeal has held that credit for restrictive EM bail is appropriate, but not so high as to be on a one-for-one basis.26
[63] The fact that an offender has not breached their bail should not be taken into account as a mitigating feature.27
25 R v Lochhead, above n 1, at [43].
26 Cunningham v R [2019] NZCA 622 at [30]; citing Parata v R [2017] NZCA 48 at [11]-[14].
27 R v T [2007] NZCA 272 at [18].
[64] In Tanuvasa v R the Court of Appeal observed the credit for four months had been considered adequate to reflect periods spent on EM bail which ranged between 10 and 18 months.28
[65] Mr Smit relied on Troon v R, where the Court of Appeal upheld a discount of one month to account for the fact that the offender had spent four months subject to an evening curfew condition.29 Mr Smit accepted that credit for time spent on restrictive bail is discretionary, and that any discount does not equate to the length of time subject to such conditions.
[66] In the present case, Mr Lochhead was not subject to EM bail. Whilst on bail, he was subject to a curfew from 8.00 pm to 6.00 am and a “not to contact” condition. During this period, he reoffended against the victim and was arrested for breaching his curfew on one occasion. I consider the Judge was correct in the circumstances not to afford Mr Lochhead any credit for time spent on bail.
Conclusion
[67]The answer to the three questions posed in this appeal is no.
Result
[68]The appeal is dismissed.
Doogue J
28 Tanuvasa v R [2019] NZCA 217 at [28]; citing Parata v R [2017] NZCA 48 at [15]; Chea v R
[2016] NZCA 207 at [109]–[111]; and Keown v R [2010] NZCA 492 at [16].
29 Troon v R [2019] NZCA 265 at [64].
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