Lowery v R

[2020] NZHC 667

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-419-14

[2020] NZHC 667

BETWEEN

MICHAEL JAMES LOWERY

Appellant

AND

THE QUEEN

Respondent

Hearing:

31 March 2020

Counsel:

G A Walsh for Appellant

A S Alcock for Respondent

Judgment:

1 April 2020

JUDGMENT OF BREWER J

This judgment was delivered by me on 1 April 2020 at 3:00 pm Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Hamilton, for Crown

LOWERY v R [2020] NZHC 667 [1 April 2020]

Introduction

[1]    Mr Lowery appeals against the sentence of two years and eight months’ imprisonment imposed on him by Judge AS Menzies on 21 February 2020.1 His contention is that the sentence is manifestly excessive.

[2]    My task is to determine whether the Judge made an error such that a different sentence should be imposed.

Background

[3]    Mr Lowery was due to stand trial on a number of charges of intimate partner violence. On the day of the trial he reached agreement with the Crown and pleaded guilty to an amended set of charges. These were:

(a)A representative charge of assaulting his partner with intent to injure her by repeatedly punching her to the face and head.2 The maximum penalty is three years’ imprisonment.

(b)Intentionally or recklessly impeding the partner’s normal breathing by applying pressure to her throat or neck (“the strangulation charge”).3 The maximum penalty is seven years’ imprisonment.

(c)A representative charge of contravening a protection order by physically assaulting and psychologically abusing the protected person, namely his partner.4 The maximum penalty is three years’ imprisonment.

[4]    There was a further charge before Judge Menzies. It was a charge of breach of intensive supervision. Mr Lowery has a fairly extensive history of offending including convictions for violence against females and breaching protection orders. He was imprisoned in 2010 for breaching release conditions

1      R v Lowery [2020] NZDC 3092.

2      Crimes Act 1961, s 193.

3      Crimes Act 1961, s 189A.

4      Domestic Violence Act 1995, ss 19(1)(a) and 49(1)(a).

which were imposed following a 2008 sentence in which Mr Lowery was sentenced to 30 months’ imprisonment for violent offending. The sentence of intensive supervision was imposed in May 2018 following convictions for male assaults female and contravening a protection order. A special condition of the  sentence  was  that  Mr Lowery  not  possess  or  consume  alcohol.  Mr Lowery was arrested on the charges already described on 26 December 2018. He was intoxicated at the time, hence the charge of breaching intensive supervision.

[5]    The facts of Mr Lowery’s offending against his partner can be set out succinctly.

[6]    Mr Lowery and his partner drank alcohol at their home on 24 December 2018. They began to argue. Mr Lowery grabbed his partner by the arms and threw her onto the bed. He then punched her on a number of occasions to the head with closed fists  using  both  of  his  arms.  The  partner  pleaded  for Mr Lowery to stop. He did so and apologised.

[7]    The following day, 25 December 2018, Mr Lowery drank again and became intoxicated. His brother was present and the two argued. Mr Lowery accused his partner of sleeping with his brother. Mr Lowery punched his partner once in the face with his left fist, grabbed her hair and punched her again to the stomach. Mr Lowery then got on top of his partner, straddling her torso. He placed both his hands around her chin, squeezing them together for a period of about 20 seconds. This caused his partner to struggle to breathe and gasp for air. This is the basis of the strangulation charge.

[8]    Mr Lowery took his hands from his partner’s neck and throat but then punched her a number of times to the face. He stopped his assault when his brother called the police.

[9]    All of this offending was in breach of a protection order made final on 23 May 2000.

The sentence

[10]   The Judge took the strangulation charge as the lead charge. He noted it is a comparatively new charge and he referred for guidance to three cases from this Court.5

[11]   The Judge next referred to the impact of the offending on the partner. It is significant:

[23] In the context of the victim impact I have a victim impact statement which is dated 19 February. That indicates that the victim has been involved in a reasonably lengthy operation to repair damage to her shoulder and that resulted from your attack. She was under anaesthetic for 48 hours after the surgery. She could not move, there were some restrictions on her mobility and there remain some constraints on her ability to lift and generally to move in a normal manner. She is finding significant embarrassment having to explain what has been going on. She has had further consequences with hearing problems resulting from your punches to her head. She has not been able to continue study she was undertaking in Hamilton because of this offending and is now living elsewhere on an unemployed benefit. It is clear from that statement that the impact upon her of the offending has been quite significant.

[12]The Judge structured his sentence as follows:

(a)Starting point on the strangulation charge, two years’ imprisonment;

(b)Uplift for all other charges, six months’ imprisonment;

(c)Uplift for previous criminal history, four months’ imprisonment;

(d)Uplift for offending taking place while Mr Lowery was subject to the sentence of intensive supervision, two months’ imprisonment;

(e)Discount for guilty plea, 10 per cent.

[13]   The Judge rounded off the sentence to one of two years and eight months’ imprisonment.

5      Ackland v Police [2019] NZHC 312, [2019] NZAR 1112; Houkamau v Police [2019] NZHC 2743;

T v Police [2019] NZHC 3375.

The appeal

[14]   Mr Walsh for Mr Lowery submits this sentence is manifestly excessive because:

(a)The Judge adopted too high a starting point on the strangulation charge; and

(b)There is an aspect of double counting because of the uplift for prior offending and the separate uplift for offending whilst subject to a sentence of intensive supervision.

[15]   So far as the starting point is concerned, Mr Walsh submits Mr Lowery’s offending is significantly less serious than the three cases analysed by the Judge to which I have referred above. It is also, he submits, less serious than a further case where strangulation was charged: Milne v Police.6 In his submission, a starting point of no more than 18 months’ imprisonment was warranted.

[16]   Mr Walsh accepts the appropriateness of the uplift of six months for the other charges. So too the uplift for Mr Lowery’s criminal record. His argument is that there was no basis for having  a  separate  uplift  for  the  offending  taking  place  while Mr Lowery was subject to the sentence of intensive supervision.

[17]   Mr Walsh’s final submission is that the end starting point should have been no higher than 28 months’ imprisonment so that applying the 10 per cent discount for the plea of guilty would result in an end sentence of 25 months’ imprisonment.

Discussion

[18]   The end sentence was two years and eight months’ imprisonment. It is that sentence which must be shown to be manifestly excessive before the appeal can succeed.

6      Milne v Police [2020] NZHC 358.

[19]   The strangulation in this case was not, by itself, as serious as those in Ackland v Police and T v Police because in those cases the complainant was rendered unconscious. It is more similar to the strangulations in Houkamau v Police and Milne v Police. Neither of the latter two cases would render the two years starting point adopted by Judge Menzies in this case unjustifiably high.

[20]   I agree with Mr Walsh that there is at least an appearance of double counting by having a separate uplift for offending while subject to a sentence of intensive supervision when the charge of breaching intensive supervision is included in the uplift for the related offending. However, given my view that the end sentence of two years and eight months is well within the range available to Judge Menzies, I do not take that point further.

[21]   It is necessary in sentencing, of course, to assess the seriousness of individual charges. But the overall sentence must reflect the overall criminality of the defendant’s conduct. In my view, the following factors elevate Mr Lowery’s overall criminality:

(a)This was serious intimate partner violence.

(b)The violence took place on two consecutive days. The charge of assault with intent to injure is a representative one.

(c)The strangulation was preceded by and accomplished through the use of other violence. Mr Lowery punched his partner once in the face, grabbed her hair and punched her to the stomach. He then got on top of her, straddling her torso before strangling her.

(d)The multiple breaches of the protection order are serious offences on their own.

(e)The harm to the partner was significant.7

7 See [11] above.

[22]   Mr Lowery’s record of criminal offending, particularly the violent offending for which he was subject to intensive supervision at the time of the current offending, is another significant factor which called for a sentence emphasising denunciation.

[23]   I conclude the end sentence of two years eight months’ imprisonment was not manifestly excessive.

[24]The appeal is dismissed.

Brewer J