M v Police

[2024] NZHC 2255

THE NAME IN THIS JUDGMENT HAS BEEN ANONYMISED.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-145 CRI-2024-409-146

[2024] NZHC 2255

BETWEEN

M

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

8 August 2024

Appearances:

E K Moore for Appellant

M W Fulton for Respondent

Judgment:

12 August 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 12 August 2024 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

M v NEW ZEALAND POLICE [2024] NZHC 2255 [12 August 2024]

Introduction

[1]    On 17 May 2024, the appellant, M, was sentenced to 27 months’ imprisonment in respect of two sets of offending.1   The first was for three charges committed on    5 November 2023:

(a)contravening a protection order;2

(b)assault on person in family relationship;3 and

(c)dangerous driving4 (the November offending).

[2]    The second was a re-sentencing on a sentencing review of three charges for offending that occurred on 27 December 2022:

(a)contravening a protection order;5

(b)assault on person in family relationship;6

(c)assaults child7 (the December offending).

[3]    M appeals on the basis that the end sentence was manifestly excessive because Judge McMeeken failed to make a totality adjustment in light of the separate starting points.

[4]    M also seeks leave to advance two further grounds of appeal in relation to the re-sentencing. These are that:

1      Police v M [2024] NZDC 11280 at [39].

2      Family Violence Act 2018, ss 90(a), 9 and 112(1)(a) — maximum penalty three years’ imprisonment.

3      Crimes Act 1961, s 194A — maximum penalty two years’ imprisonment.

4      Land Transport Act 1998, s 35(1)(b) — maximum penalty three months’ imprisonment and at least six months disqualification.

5      See above n 2.

6      See above n 3.

7      Crimes Act 1961 — s 194(a): maximum penalty two years’ imprisonment.

(a)The re-sentencing proceeded on an incorrect summary of facts and the starting point of 20 months’ imprisonment was too high; and

(b)the cumulative period of 10 months’ imprisonment imposed, in consideration of the original sentence and the six-month period of intensive supervision unserved, was disproportionate.

Factual background

[5]    The victim in each tranche of the appellant’s offending is the appellant’s ex-partner (victim one or the victim). The appellant’s ex-partner’s child is also a victim in the December 2022 offending (victim two).

December 2022 offending

[6]    On 27 December 2022, the appellant and the victims were at the Onuku Marae in Akaroa. At around 3 pm, an argument developed. The appellant became agitated and pushed his ex-partner in the chest area. That gave rise to a charge of assault on a person in a family relationship.

[7]    Between 5 and 6 pm, the appellant and the two victims were in the upstairs area at the marae. Another argument broke out because the appellant did not want the victims to leave. The appellant closed the door and refused to let the victims out of the room. The appellant yelled at victim one threatening to hit her. Victim two told the defendant to “leave my mum alone” and “I’m not scared of you”. The appellant reached over and pushed victim two in the head, resulting in multiple large bruises on the victim two’s head.

[8]    M entered guilty pleas for the offending prior to a Judge-alone trial. This was his eighth conviction for a breach of a protection order against this victim.

November 2023 offending

[9]    M was with the victim, at her home address. An argument developed and M responded by pushing her, causing her to lose her balance and bang the back of her arm. As the victim was leaving the house, the appellant smashed his fist against the

sliding door several times. He got into his car and drove at speed towards the victim’s parked vehicle. When he was told that the Police had been called, he did a u-turn and drove back up the street revving his vehicle and then drove his vehicle towards the victim at speed, but swerved to avoid her at the last second. She told the police at the time that she believed the appellant was going to hit her.

[10]M pleaded guilty to the charges.

Procedural background

[11]   On 24 March 2022 M was sentenced to 18 months’ intensive supervision for charges of contravening a protection order and threatening behaviour. The offending was against the same victim and occurred on 16 December 2021.

[12]   On 27 December 2022, while subject to the above sentence, M committed further offending against the same victim and her child. He was remanded in custody.

[13]   On 26 June 2023 M was sentenced for the December 2022 offending by Judge Hix.8 The sentence of intensive supervision from the sentencing on 24 March 2022 was cancelled. Fifteen months’ intensive supervision and 100 hours’ community work were imposed and his unpaid fines were remitted.

[14]   When M committed the November 2023 offending against the same victim, Corrections filed an application to cancel the existing sentences of intensive supervision and community work under ss 54K(1)(a) and 68(2)(b) of the Sentencing Act 2002 (the Application). Judge McMeeken then sentenced M on all matters. That decision is the subject of the present appeal.

Victim Impact Statement

[15]   The Court does not have the benefit of a victim impact statement for the November 2023 offending. However, she did file a victim impact statement following the December 2022 offending.

8      [Redacted].

[16]   In that statement the victim says that there have been ongoing issues throughout her relationship with the appellant that she overlooked or did not do anything about. She says that the appellant would continually show up when he liked even though she asked the appellant to leave. She says he ignores police safety orders. She also says that the appellant has damaged the locks on the windows and uses them to enter the property when she is not home. She says that she fears for her and her children’s safety.

District Court decisions

[17]   The Judge noted that while the appellant was serving his sentence of intensive supervision for the December 2022 offending, he again assaulted the victim of that offending and breached a protection order again, which she observed was “certainly of concern”.

[18]   The Judge acknowledged that the appellant disputed aspects of the summary of facts of the December 2022 offending. That much was clear from the appellant’s pre-sentence report. However, the Judge told the appellant that she had to sentence him on the basis that the facts, as laid out in the summary, were accepted.

[19]   The Judge considered that it was “really clear” that the appellant’s risk of harming others was likely to continue and probably increase unless he received some intervention.

[20]   In setting a starting point the Judge referred to a number of authorities that she found helpful.9 The Judge also identified the key aggravating factors of the November 2023 offending as being:10

(a)the actual violence and threat of actual violence that frightened the victim, particularly noting the appellant’s actions of driving at her with his car;

9      Thompson v New Zealand Police [2020] NZHC 20; Palmer v Police [2015] NZHC 143; Mataiti v New Zealand Police [2014] NZHC 1675; Duff v New Zealand Police [2019] NZHC 3118; Shirley v R [2019] NZHC 2325; and Manuel v Police [2015] NZHC 66.

10 At [22].

(b)that this was family violence offending committed against someone with a protection order;

(c)that parts of the offending occurred in the victim’s home;

(d)that the appellant was subject to a sentence of intensive supervision at the time; and

(e)there had been eight previous breaches of the protection order.

[21]   The Judge noted that the victim’s views on the November 2023 offending had not been filed. However, the Judge considered that there was no reason to consider her views had changed since the December 2022 offending where she said that she feared for her safety and her children’s safety.

[22]   The Judge adopted a starting point of 16 months’ imprisonment, stating that the starting point “includes an uplift for your previous breaches of the protection order”. The Judge then applied an uplift of four months’ imprisonment for other relevant criminal history, including the appellant’s 13 prior family violence convictions of which two were on a child, 12 police safety orders that were issued against the appellant, and 37 family violence incidents where the appellant was the predominant aggressor against the victim.

[23]   The Judge then applied a 20 per cent discount for the appellant’s guilty plea that was entered at a case review stage, as opposed to the earliest opportunity. The Judge rejected a discount for drug addiction, noting that she was uncertain whether the offending was motivated by drug addiction or that there was a significant causal connection.

[24]   The Judge determined that a 20 per cent discount from a starting point of     16 months was 13 months. Applying the four-month uplift for the appellant’s previous offending and family violence brought the Judge to an end-sentence of 17 months’ imprisonment on the charges arising from 5 November 2023. The Judge considered that the sentence must be one of imprisonment as there was no address suitable for an

electronically monitored sentence, as noted in Corrections report. The Judge considered that imprisonment was the least restrictive outcome, given that previous sentences of intensive supervision had not been effective.

[25]   The Judge then turned to the resentencing of the appellant’s original sentence of one year and three months’ intensive supervision and 100 hours community work. The Judge accepted that the community work was in respect of fines remission, but the appellant had not completed the community work.

[26]   The Judge stated that the re-sentencing process required her to form her own opinion as to what an appropriate sentence on those charges would have been. The Judge noted that the aggravating factors of the December 2022 offending were:

(a)actual and threatened violence against two vulnerable people — one, a child which included attacks to his head which resulted in bruising;

(b)that the offences were family violence offences committed in contravention of a protection order, against the protected person;

(c)children were present;

(d)that the appellant was subject to a sentence of intensive supervision at that time.

[27]   The Judge said that the violence in those previous matters seemed worse than the November 2023 matters. The violence to the victim was worse and it involved violence to a child. The judge considered a starting point of 20 months was appropriate in respect of those matters. After applying a three month uplift for previous matters and a 15 per cent discount for guilty pleas the  Judge came to an end sentence of     17 months. The Judge in doing so made a mathematical error — the end sentence should have been 20 months.

[28]   The Judge recognised that in substituting a sentence on a cancelled sentence the Court must take into account the period of the sentence that remained unserved. By operation of s 54KA of the Sentencing Act, the appellant’s sentence of intensive

supervision ceased to run  when  the  application  to  cancel  was  made,  meaning  six months of that sentence was left still to serve. The Judge then reduced the sentence she was imposing to one of 10 months’ imprisonment.

[29]   The appellant was therefore sentenced to 17 months’ imprisonment on the November 2023 charges and 10 months’ imprisonment in respect of the matters he was re-sentenced on. That resulted in a sentence of 27 months’ imprisonment. The Judge also confirmed a six-month disqualification for the dangerous driving conviction.

Principles on appeal

[30]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.11 As the Court of Appeal stated in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.12 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.13

Submissions

Appellant’s submissions

[31]   Counsel submits that the starting point of 20 months’ imprisonment adopted for the December 2022 offending was too high when the correct summary of facts is considered. This altered the allegations of punches to the head to each victim to allegations of pushing them. Relying on case law, counsel submits that an appropriate starting point for the December 2022 offending was 18 months’ imprisonment.14

11     Criminal Procedure Act 2011, ss 250(2) and 250(3).

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

13     Ripia v R [2011] NZCA 101 at [15].

14     Gardner v Police [2020] NZHC 2169; and Duff v Police [2019] 3118.

[32]   In relation to the second ground of appeal, counsel submits that there is a lack of proportionality or equivalence between the 10 months’ imprisonment imposed on resentencing for the December 2022 offending and the original sentence. Ms Moore says that the appellant had six-months left to serve on his sentence of intensive supervision (being less than half the sentence imposed) but he was unable to serve the remainder of his sentence given his custodial status. Ms Moore submits that the Judge failed to have regard to whether there was proportionality between the sentence originally proposed and the substituted sentence which the Court of Appeal, in R v M, identified as necessary.

[33]   Finally, in respect of the third ground of appeal, Ms Moore submits that the Judge erred by not taking account of totality.

[34]   Ms Moore notes the uplifts for criminal history with the starting point for the November 2023 offending uplifted by 25 per cent and the starting point for the December 2022 offending uplifted by 15 per cent. While acknowledging that no discrete uplift was applied to the November 2023 offending for offending while on sentence, she submits consideration should have been given to the multiple uplifts that had been applied when considering totality. Ms Moore submits that a reasonably significant adjustment to sentence, in the region of four to six months’ imprisonment, is required and should have been made to reflect the totality principle. By failing to consider and adjust for totality, M’s end sentence was manifestly excessive and wholly out of proportion to his overall culpability.15

Respondent’s submissions

[35]   Ms Fulton, for the respondent, acknowledges the Judge relied on an incorrect summary of fact when resentencing on the December 2022 offending. However, she says the end sentence was still within range because the defendant received a benefit of a mathematical error which meant  the  effective  starting  point  for  the December 2022 offending was 17 months’ imprisonment, not 20 months’ imprisonment. Thus, in practical terms, M received a sentence which was one month less than the starting point now advocated for.

15     Sentencing Act 2002, s 86.

[36]   In responding to the submission that, in resentencing, the Judge failed to ensure the sentence imposed was proportionate to the unserved sentence, Ms Fulton first points out that the Judge took a starting point that was within range for the offending, relying on the aggravating features of the offending and on the sentence imposed in analogous cases.16 From that starting point, the Judge made a downward adjustment of seven months to account for the period of the sentence that had already been served. Furthermore, Ms Fulton points out it is relevant that the sentence of intensive supervision was imposed because the Judge who originally sentenced M took into account that he had spent six months in custody before he was sentenced, the equivalent of a one year sentence. Ms Fulton points out it would be artificial therefore to compare the 10 month sentence Judge McMeeken imposed solely with the original sentence of intensive supervision. Furthermore, the time spent in custody will be credited to the appellant.

[37]   Finally, Ms Fulton submits that a totality adjustment was not required because the end sentence reflected the gravity of the overall offending.17 The failure to specifically mention the totality principle is of no consequence where the sentence imposed was not out of proportion to the gravity of the offending.18

[38]   Here, Ms Fulton submits that when looking at the appellant’s overall criminality, the end sentence is not wholly out of proportion. It reflects two separate sets of offending with two victims, one of which was a child who suffered multiple large bruises to the head. Both sets of offending occurred in a family environment and against a persistent background of similar behaviour.

[39]   At the time of the offending the appellant was subject to sentences that were imposed to assist and rehabilitate him and yet the Judge did not apply uplifts for this. Furthermore, the proportionality adjustment when resentencing for the 2022 offending was generous.

16     Thompson v New Zealand Police above n 9; Palmer v Police above n 9; Shirley v R above n 9; and Duff v New Zealand Police above n 9.

17     Sentencing Act, s 85(2).

18     Kite v R [2018] NZCA 485 at [20].

Discussion

[40]   I note, at the outset, that leave is granted to bring the additional grounds of appeal that were set out in the original notice of appeal. No objection was taken to the further grounds of appeal being raised and there was clearly no prejudice to the respondent in doing so.

Incorrect summary of facts

[41]   There is no doubt the Judge relied on an incorrect summary of facts in relation to the December 2022 offending. Through the amendment, the allegation of a punch to the victim’s head with a closed fist became a push to the victim’s chest area and the allegation of a punch to the second victim’s head that left the child with multiple large bruises became an allegation that the bruises were caused by pushes to the head, and, finally, one of the alleged verbal threats was deleted.

[42]   I accept this error was relevant to the starting point taken by the Judge. Closed fist punches to both the victim and the child are more culpable than a push to each of the individuals.

[43]   However, I also accept that Judge McKeeken made a mathematical error in sentencing. She adopted a starting point of 20 months’ imprisonment and then uplifted for previous convictions and deducted for guilty pleas which should have cancelled each other out, leaving an end sentence of 20 months’ imprisonment. However, the Judge concluded that the end point was 17 months’ imprisonment. I am satisfied that the mathematical error clearly compensates for any error in the starting point caused by having regard to the wrong summary of facts.

[44]This ground of appeal does not render the end sentence manifestly excessive.

Proportionality of the re-sentencing

[45]   The approach to be taken to the exercise of resentencing was discussed in the case of R v Morgan.19 In that case, the appellant was re-sentenced on a charge of

19     R v Morgan [2008] NZCA 232.

assault with a weapon and he had 146 hours of a 150 hour sentence of community work left unserved. The District Court Judge substituted this for eight months’ imprisonment. The Court of Appeal found this to be manifestly excessive and reduced the sentence to one of three months’ imprisonment. In doing so, the Court said:

[15]Accordingly, while we accept that there must be some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate. In the present case, the appellant’s failure to make any real effort to comply with the community work sentence meant that a community based sentence was unsupportable and a sentence of imprisonment inevitable. But such a sentence had to be imposed against the background that a sentence of 150 hours of community work was initially seen as the appropriate sentence.

[16]We are satisfied that the Judge erred in his approach. The sentence of eight months imprisonment bore no relationship to the sentence of 150 hours community work originally imposed, or the factors which gave rise to it. The substituted sentence reflects the Judge’s understandable frustration at being misled by the appellant when he accepted the sentence indication. We acknowledge that the Judge also sentenced the appellant on other matters, in a way that did not add to the overall length of the term of imprisonment. The Judge was, then, conscious of the totality principle. Despite that, we consider that the basis on which the sentence was formulated was wrong in principle.

[46]    As identified in Morgan, the first step is that the substituted sentence must be one that could have been properly imposed initially. Here, the original sentencing Judge effectively acknowledged that M had served the equivalent of a year’s jail term and imposed 15 months’ intensive supervision and 100 hours of community work.

[47]   In resentencing the appellant, Judge McMeeken came to an end sentence of 17 months’ imprisonment. She then discounted seven months to reflect the period of intensive supervision which had already  been  served,  to  reach  an  end  sentence 10 months. On its face, the period of 10 months’ imprisonment imposed in lieu of the six months period of unserved intensive supervision would appear disproportionate. However, in my view, that fails to take into account that when M was originally sentenced, the Judge had regard to the fact he had served six months in custody, being the equivalent of a 12 month prison sentence and that that period in custody would be credited towards the sentence of imprisonment imposed.

[48]   Ironically, if this was the only sentence imposed, he would already be time-served on that sentence given the time he has spent remanded in custody on that sentence.

[49]   I am therefore satisfied that the substituted sentence had a starting point that could have properly been imposed initially and, furthermore, that there was proportionality between the remaining sentence imposed after deductions to reflect that part of the intensive supervision sentence which has already been served. Indeed, in practical terms, the resentencing was generous.

[50]   For these reasons, I am satisfied that there was no error by the Judge in resentencing the appellant as she did.

Totality

[51]   Finally, I consider whether the end sentence was manifestly excessive because the Judge failed to consider issues of totality and make an adjustment accordingly.

[52]   The requirement to consider totality arises under s 85 of the Sentencing Act. That section provides, relevantly:

(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

…

[53]   The principle in essence requires that the effective end-sentence reflects the offender’s overall culpability.20

20     See R v Bradley [1979] 2 NZLR 262 (CA); R v Strickland [1989] 3 NZLR 47, (1989) 4 CRNZ 632 (CA); and R v Dodd [2013] NZCA 270 at [32]–[33].

[54]   It is clear that the Judge was entitled to sentence the two tranches of offending on a cumulative basis. They arose out of quite separate incidents which occurred almost a year apart.

[55]   I accept that the Judge did not expressly refer to the totality principle but, as the respondent points out, that is not an error in and of itself. The sole question to be determined is whether the total period of imprisonment is wholly out of proportion to the gravity of the overall offending.

[56]   In my view, it is not. When I consider the repetitive nature of the behaviour, the gravity of which is exacerbated by the numerous previous convictions for offending against the same victim and the fact there was violence to a child which resulted in visible injury to the child’s head, I am satisfied that the end sentence is proportionate to the gravity of the offending and does not need adjustment on a totality basis.

[57]Accordingly, the appeal is dismissed.

Solicitors:

Public Defence Service, Christchurch Crown Solicitor, Christchurch