Love v Police
[2014] NZHC 2643
•28 October 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-92 [2014] NZHC 2643
BETWEEN MARK RICHARD LOVE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 23 October 2014 Appearances:
L L Heah for Appellant
AMS Williams for RespondentJudgment:
28 October 2014
JUDGMENT OF MANDER J
[1] In the early hours of the morning, Mr Love was at home in bed with his wife. She was sleeping. On two occasions throughout the night she had declined his requests for sex. It is apparent this was a source of irritation to Mr Love and, when his wife’s phone rang, he became enraged and attacked her. Mr Love pushed himself on top of his victim, pinned her down with his knees, and punched her in the face. His victim was able to fend him off and call the police.
[2] Upon arrival, the police found items consistent with methamphetamine use and a small amount of cannabis. As a result of the assault, the victim suffered swelling and bruising in the region of her eye.
[3] Mr Love was subsequently charged and bailed. A condition of his bail was that he not contact his wife or go within 100 metres of her address. Following this incident, the victim obtained a protection order. On two occasions, Mr Love
breached the protection order and conditions of his bail.
LOVE v NEW ZEALAND POLICE [2014] NZHC 2643 [28 October 2014]
[4] On the first occasion, Mr Love went to his wife’s home uninvited, entered the house when she answered the front door, sat down on a couch and used her laptop. She asked him to leave, which he eventually did. On the second occasion, Mr Love sent the victim some 34 text messages and called her on her cell phone on four occasions. In explanation, Mr Love claimed that his wife had initiated contact by text message and she had invited him around to the address. He has subsequently admitted this was not the case.
[5] Mr Love pleaded guilty to a charge of male assaults female, possession of a class C drug, possession of utensils, and breaching protection orders on two separate occasions. Judge Crosbie sentenced him to a total sentence of 12 months imprisonment. The sentencing Judge adopted a starting point of nine months imprisonment for the charge of male assaults female which he uplifted by imposing a cumulative term of three months imprisonment for the two breaches of the protection order, before increasing the sentence further by three months to recognise that the breaches of the protection order had occurred while Mr Love was on bail. The end sentence of 15 months was then discounted by three months in recognition of Mr Love’s guilty pleas. Judge Crosbie declined to impose a sentence of home detention. In relation to the two minor drug offences, the appellant was convicted and discharged.
[6] On appeal, Mr Love submitted that a sentence of imprisonment was inappropriate, that the 12 month term imposed was manifestly excessive and that home detention should have been imposed.
Appropriateness of imprisonment
[7] As both Mr Love and the Crown have acknowledged, there is no tariff for the charge of male assaults female, nor for breaches of protection orders. Each case must be considered in relation to its particular facts and circumstances. Mr Love argues that the extent and nature of the violence involved did not warrant a starting point of imprisonment, involving as it did a single strike. Reliance was placed on there being no pattern of domestic violence in Mr Love’s criminal history.
[8] The Crown points to the aggravating features of the assault being the strike to the head of the victim and the ongoing effects on the victim, arising out of her fear of Mr Love and the consequences of that on her mental health. Both Judge Crosbie and the Crown referred to the vulnerability of the victim at the time of the assault. This is disputed by Mr Love as a discrete aggravating feature of the offending. He submits that his wife’s vulnerability was no greater than is inherent in the offence itself. Judge Crosbie referred to the victim being in a vulnerable position as the assault occurred in the middle of the night at a time, as Mr Love himself admitted to the pre-sentence writer, he had relapsed into using methamphetamine and was unpredictable. Insofar as the learned sentencing Judge took that feature of the offending into account, it did not constitute any error on his part.
[9] The appropriateness of a sentence of imprisonment cannot be divorced from the related breaches of the protection order. Mr Love has emphasised that there were no threats of violence which accompanied his visit to the victim’s house or the text messaging. He has no previous convictions for breaches of protection orders. While it was acknowledged that repeated breaches of protection orders are likely to be met with penalties “which have some bite”,1 it was submitted that the offending in the present case was not of that character. It was emphasised on behalf of Mr Love that there were no further breaches of bail or of the protection order.
[10] In sentencing Mr Love to a term of imprisonment, Judge Crosbie emphasised the need to bring Mr Love to account and promote in him a sense of responsibility for his violent offending. Of concern to the Judge was the fact that the assault had taken place only some two months after he had completed his release conditions in respect of an earlier prison sentence. The sentencing Judge was also concerned to impose a sentence that recognised the need for both personal and general deterrence. Domestic violence which also involves breaches of protection orders are required to be treated seriously by the Courts. It was noted in that regard that the maximum penalty for breach of protection orders has been increased to three years for that reason. In the present case, the breach of the protection orders are required to be
considered in the context of the previous violence inflicted on Mr Love’s wife.
1 R v Nathan CA209/06, 29 November 2006, at [20]; R v Cartwright CA174/02, 27 August 2004, at [24].
[11] I have not been brought to the conclusion that the Judge erred in imposing imprisonment. A sentencing Judge is obliged to impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences.2 In this instance, I am satisfied that, in order to give effect to the need to denounce, deter and hold the offender to account, the sentencing Judge was entitled to conclude that imprisonment was appropriate. I am however concerned at the
length of the starting point having regard to the competing principles and purposes of
sentencing to assist an offender’s rehabilitation and reintegration.
Length of sentence
[12] In my view, a starting point of nine months imprisonment would have been unchallengeable if it had incorporated the subsequent breaches of the protection order which occurred while Mr Love was on bail. A further three months was however imposed cumulatively to separately reflect the breaches of the protection order. I agree that Mr Love’s subsequent conduct in breaching the protection orders required to be reflected in a substantive way in the overall sentence imposed. Whether that was by way of a cumulative sentence, or reflected in an overall starting point by imposing concurrent sentences, would be immaterial.
[13] The breaches of the protection order did constitute separate and discrete offending, and there can be no criticism of the approach taken by the learned sentencing Judge in imposing a cumulative sentence. An effective three month increase to recognise the breaches of the protection order was within range having regard to the maximum penalty of three years imprisonment. While an aggravating feature of the breaches of the protection order was the fact that it occurred while the appellant was on bail, and of itself constituted breaches of bail, the imposition of a further three months imprisonment was, having regard to the overlap of that conduct with the breaches of the protection order, excessive.
[14] Standing back, I have concluded that a 15 month starting point before the deduction for the guilty plea was manifestly excessive. In my view, a starting point of nine months imprisonment would have appropriately reflected the seriousness of
the offending and the breaches of the protection order whilst Mr Love was on bail. There is a previous conviction for assault in April 2001, however, given its vintage and the lack of any violence convictions since, it appears the assault on his wife was out of character. Of concern however is the history of involvement with methamphetamine, and I have little doubt that Mr Love’s violence on this occasion is associated with his continued use of that drug.
[15] Mr Love submitted that he was not afforded a 25 percent credit in respect of his guilty plea. It is something of a theme in appeals to this Court that appellants are said to be “entitled” to a credit of 25 percent for an “early guilty plea”. As the Crown has noted, the Supreme Court in Hessell v R observed: 3
… Credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.
[16] Ultimately, the sentence imposed must be one which adequately reflects the culpability of the offender, his personal circumstances and other mitigating and aggravating features, either as they relate to the offence or to the offender. In my view, the reduction of three months to recognise Mr Love’s guilty plea was a proper reduction available to the sentencing Judge in the exercise of his sentencing discretion.
Home detention
[17] Mr Love argues that, having been sentenced to a period of imprisonment of short duration, a sentence of home detention should have been imposed rather than one of imprisonment. Judge Crosbie declined to do so. The sentencing Judge noted that Mr Love had reacted positively to these types of sentences in the past, but did not consider that a sentence of home detention in the circumstances would constitute an adequate deterrent. Judge Crosbie made reference to the commission of these offences “so soon after” Mr Love was released from prison and of the concern that caused to the Court. As the Crown has observed, this appears to be a reference to
Mr Love’s recent completion of his parole requirements in April 2014, some two
months prior to the offending.
[18] In Heta v R,4 the Court of Appeal held that the question of the imposition of home detention calls for a specific analysis. In particular, the Court of Appeal observed that the availability of a sentence of home detention does not render a short term of imprisonment redundant, and that it remains a “distinct sentencing option”. The Court cautioned appellate Courts from revisiting the merits of a decision to decline home detention in a situation where the scales were finely balanced and in the absence of a material discretionary error.5
[19] I have not been brought to the position where I can say Judge Crosbie made any error in the exercise of his discretion to decline home detention to Mr Love. I have acknowledged that the starting point taken by the Judge was excessive, but I reject the submission that a short term of imprisonment was inappropriate in the circumstances of this case. While I acknowledge that home detention is a sentence which carries with it the effect of deterrence, I am satisfied, having regard to the nature of the assault and the subsequent breaches of the protection order which was obtained as a direct result of the domestic violence, that imprisonment was appropriate.
[20] Mr Love himself has acknowledged that he had lapsed into drug use at the time of the assault, and I agree with the author of the pre-sentence report that drug use was a significant contributor to Mr Love’s offending. There is therefore some connection with Mr Love’s prior, and obviously serious, previous involvement in methamphetamine. It was in respect of that offending which Mr Love had only recently completed his parole requirements shortly before the commission of this offence.
Result
[21] It follows therefore that I allow the appeal. In substitution of the sentence of
12 months imprisonment, I impose an effective sentence of seven months
4 Heta v R [2012] NZCA 267.
5 At [20]-[21].
imprisonment. I have reached that length of sentence by taking as a starting point nine months imprisonment, which includes both the assault and the breaches of the protection order. I do not consider an uplift is required to reflect the breaches of bail. I have allowed a two month reduction for the guilty plea, consistent with the approach taken by the sentencing Judge. The effect of the sentencing exercise is the substitution of a five month sentence of imprisonment for the charge of male assaults female and concurrent two month terms of imprisonment for the breaches of the protection order imposed cumulatively on the sentence for the assault. Conditions imposed at the time of the original sentence stand.
Solicitors:
Lee Lee Heah Barrister, Christchurch
Raymond Donnelly & Co, Christchurch
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