M v The King

[2024] NZHC 3632

NOTE: DISTRICT ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.

NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2024-425-000048 [2024] NZHC 3632

BETWEEN

M

Appellant

AND

THE KING

Defendant

Hearing:	28 November 2024
Counsel:	P K Noorland for Appellant M J Thomas for Respondent
Judgment:	2 December 2024

JUDGMENT OF LA HOOD J

(Appeal against sentence)

[1]                  Mr M kidnapped his former partner when she ended their relationship. He detained her in his car while driving a long distance over many hours, forcing her to remain in the car when she tried to escape, including by strangling her on two occasions, and compelling her to take MDMA. The next day he assaulted her while preventing her taking back a bag of belongings, and in the days that followed used a bank card from her bag to spend $3,000 of her money.

M v R [2024] NZHC 3632 [2 December 2024]

[2]                  Mr M appeals against a sentence of three years’ imprisonment  for this offending.1 The sentence was imposed on charges of kidnapping;2 a representative charge of strangulation;3 male assaults female;4 a representative charge of dishonestly using a document;5 and possession of cannabis.6

[3]                  The appellant contends that the starting point of four years imprisonment was too high resulting in a manifestly excessive end sentence.

The offending

[4]                  The facts of the appellant’s offending are set out in the decision  under appeal as follows:

[3]        You and the complainant were in a relationship for close to two years. I am told that there are no children. From about August 2022 until February 2023 you were residing together with her parents at an address in Tuatapere.

[4]        On 7 February last year she informed you that she wished to end the relationship. She told you that she planned to go away with a friend for the weekend to have a break. You did not take this information well. You did not want the relationship to end.

[5]        On 10 February at about 8 pm she was at home when you and three of your friends arrived at the address. Her father was at home and he invited your friends inside. She spoke to you whilst you were in your vehicle about messages that you had read on her phone. She was invited to go with you and your friends that evening. Apparently she agreed because you, your friends, and the complainant travelled to a local bar in your motor vehicle.

[6]        At the bar you told her to go and get some drinks and she obliged. You, your friends, and she were in the smoker’s area of the bar and at the bar you continued to ask her to talk about your relationship and you told her again that you did not want her to go away with her friend for the weekend. You kept asking her for her cellphone.

[7]        She explained to you that your relationship was over and said that she did not want to be with you anymore.

[8]        At about 8.30 pm you were both in the garden bar area of the establishment continuing the discussion about the relationship. You told her to hurry up and finish her drink and, somewhat fearfully, she agreed to leave the bar with you.

1      R v [M] [2024] NZDC 24178 [Decision under appeal].

2      Crimes Act 1961, s 209; maximum penalty 14 years’ imprisonment.

3      Crimes Act, s 189A(b); maximum penalty seven years’ imprisonment.

4      Crimes Act, s 194(b); maximum penalty two years’ imprisonment.

5      Crimes Act, s 228(1)(b); maximum penalty seven years’ imprisonment.

6      Misuse of Drugs Act 1975, s 7(1)(a); maximum penalty three months’ imprisonment.

[9]        As you were getting into your vehicle you were approached by one of your friends who asked if everything was okay. She said it was not. However, you reassured the friend that everything was fine and as a result he left.

[10]      You drove your vehicle out of Tuatapere at speed. The complainant was sitting in the front passenger seat. You told her that you were going to drive to Te Anau which is approximately 100 kilometres from Tuatapere. On the way you argued about the relationship with you reluctant to accept that it was over. You told her that you loved her and she told you that she did not feel the same way.

[11]      She became concerned about your manner of driving and she feared the situation that she had got herself into. After about 20 minutes of driving you pulled the vehicle over for a comfort stop. As you slowed the vehicle she took off her seatbelt and once the vehicle had stopped she opened the door; however, you forcibly grabbed her by her right arm to prevent her from leaving. She attempted to fight back by scratching and biting at you but she was unable to escape your grip. You then grabbed her by the front of her bra over the top of her clothing and you held on to her. This caused her bra to snap.

[12]      You got out of the car and you held her around her torso, lifting her up. You proceeded to force her back inside the vehicle and during the struggle her cellphone fell from her pocket. As you were forcing her back inside the vehicle the front passenger door closed, resulting in her foot being jammed in the door. You got her back inside the truck and she was lying across the front seats. You grabbed her tightly around her throat with your hand and you said: “You shouldn’t do that.” She was avoiding eye contact with you; however, you told her to look at you and then you said: “I don’t want to hurt you.” You kept your hand on her throat for some 20 to 30 seconds and during that time she was struggling to breathe. You then climbed over her into the d river’s seat of the vehicle and you drove off.

[13]      She attempted to get the vehicle to stop by trying to remove the keys from the ignition and to pull the vehicle into park but that was unsuccessful. As a result of her actions, though, you stopped the vehicle again. You came around to the passenger side, partially climbing on top of her. You placed two hands around her neck with your palms on her collarbone. You wrapped your fingers and thumbs around her neck and squeezed. She was finding it hard to breathe and you began to put more pressure on her neck. As a result of this she was struggling to breathe and she told the police that she felt like you were cutting off her blood circulation. She said that she thought she was going to die.

[14]      You kept your hands around her neck for some 20 or 30 seconds. You then said to her: “I don’t want to hurt you, I love you.” And: “You don’t want to try that again. You will regret it.”

[15]      Once you let her go she remained in the vehicle and later told the police that she simply did not know what to do.

[16]      You returned to the driver’s seat and you continued to drive to Te Anau arriving somewhere around midnight.

[17]      You parked the vehicle on a public boat ramp situated off the Te Anau- Manapouri Highway. While you were there, there was further discussion about your relationship for an extended period and she agreed that you could come out with her and her friends the following evening.

[18]      She did not attempt to leave the vehicle as she no longer had a cellphone and she believed that you would simply stop her if she tried.

[19]      You then suggested that you return to Tuatapere and camp out for the rest of the night at the Clifden Suspension Bridge. She agreed.

[20]      You reversed your vehicle off the boat ramp, stopping before you reached the road. You told her that you had some MDMA. You wanted her to take it with you. You then removed a powdered substance from the ash tray in your vehicle. You put the powdered substance on your phone case, you rolled up a note, and you snorted it. She told you that she did not want to take any but, feeling compelled by you to do so, she in fact did. She told the police that the powdered substance mixed with alcohol made her feel even more vulnerable and she simply was not really herself anymore.

[21]      After taking the powdered substance you drove back to the Tuatapere home address and you arrived back at around 3 am. She knocked on her brother’s window for him to unlock the door. She did not tell her parents, who were asleep, or her brother, feeling as though the powdered substance had made her lose focus. She collected some bedding from her bedroom and you went to the Clifden Suspension Bridge.

[22]      On 11 February at about 11.45 am you both returned home. At the address she spoke to members of her family but again did not disclose what had occurred the previous evening.

[23]      You gathered some belongings and you went to her friend’s address situated in Northope. At around 5 pm you, she, and the friends left in a vehicle and you spent the evening travelling around the Southland area visiting various pubs. Just prior to midnight an argument ensued between one of the friends and you, and as a result you demanded to be returned to the Northope address so you could uplift your vehicle and leave. That is exactly what happened.

[24]      When you arrived back at the address you were told by the occupant to leave. Initially you refused and you said you did not want to leave without the complainant. However, she refused to go with you. This continued for an extended period with you being asked to leave on numerous occasions.

[25]      The complainant went outside of the addressand attempted to remove a bag containing her belongings from the rear passenger side of your car. You attempted to grab her by the arm and shut the door to the vehicle. She ran around some other vehicles and you got into the driver’s seat of your car and started the engine. She then returned to the rear of your car to uplift her bag. As she was doing that you reversed your vehicle which resulted in the passenger door hitting her, causing her to stumble backwards. You then got out of the vehicle. You approached her, shewas holding her bag. You forcibly pulled the bag from her causing her to fall to the ground. You then put the bag in your vehicle and left the address.

[26]      Between 10 and 14 February you used her BNZ eftpos card on three occasions to purchase fuel and to withdraw cash. The total amount that you took was $3,136.11. You did not have permission to use her eftpos card.

[27]      On 21 February you were stopped driving your Honda Horizon motor vehicle in Tuatapere. You were arrested and your vehicle was seized for examination pursuant to a search warrant issued under the Search and Surveillance Act 2012. A subsequent search of your vehicle located 30 grams of cannabis and $675 of cash.

[28]      As a result of the assault the complainant suffered bruising and soreness to her upper chest, arms, legs, and ankle. She also had grazing to her knees. When you were spoken to by the police you denied all of the allegations relating to the incident on 10 February.

[29]      In explanation for the incident in Northope, you acknowledged taking the bag from the complainant which caused her to fall to the ground. You also admitted that you had unlawfully used her bank card. You admitted being in possession of cannabis and you stated that it was for your personal use.

District Court decision

[5]                  The Judge regarded the offending as very serious and treated kidnapping as the lead charge.7 On the kidnapping alone, the Judge considered the appropriate starting point would be in excess of three years’ imprisonment.8 During the kidnapping there were two occasions of strangulation which lasted between 20 and 30 seconds, impeding the victim’s ability to breathe and making her think she was going to die.9 The Judge noted that sentences of two years’ imprisonment even for lower level strangulation are unremarkable.10 The Judge said that the complainant  was  held against her will for some 15 hours, and there was other violence in addition to the strangulation.11 The Judge concluded that “the minimum starting point that I can responsibly adopt is one of four years’ imprisonment.”12 The Judge applied  an uplift of three months to reflect  the balance of the charges, which he described as “generous”.13

7 Decision under appeal, above n 1, at [60].

8      At [61] after noting Downs J’s comments in Cassidy-Gugich v R [2016] NZHC 3027.

9 At [62].

10 At [62].

11 At [63].

12 At [63].

13 At [63].

[6]                  The Judge gave a 20 per cent credit for early guilty pleas with some reservations,14 and deducted four months to reflect the appellant’s 363 days subject to electronically monitored bail (noting that there were two serious breaches of that bail).15 The Judge had concerns about Mr M’s attitude towards the offending including his unacceptable comment that it was time for the victim to move on.16

[7]                  Applying a 20 per cent credit and four-month deduction to the starting point of four years resulted in an end sentence of three years’ imprisonment. The Judge ordered the appellant to pay $3,135.11 reparation to the victim and remitted $2,753.40 in outstanding fines (and granted name suppression at the victim’s request).17

Approach on appeal

[8]                  The Court must allow this appeal if it is satisfied  that there  is a material  error in the sentence and a different sentence should be imposed.18 In most cases, the court will not intervene unless the sentence  is manifestly excessive.  This must be assessed in terms of the final sentence imposed, rather than the process by which it was reached.19 Sentencing “is not a science” and an “appellate court does not start afresh nor simply substitute its own opinion for that of the original sentencer”.20

[9]                  As I noted in Johnson v New Zealand Police, the error principle “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.”21

14 At [64].

15 At [65].

16 At [66].

17     At [77]-[79].

18     Criminal Procedure Act 2011, s 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

19     Tutakangahau v R, above n 18, at [30]–[36].

20     At [30] and [35].

21     Johnson v New Zealand Police [2023] NZHC 3748.

The grounds of appeal

[10]              Ms Noorland submits that the starting point for the lead offending of kidnapping ought to have been three years’ imprisonment,22 with an uplift of three months for the balance of the charges, including strangulation. Adopting the same  reductions, the end sentence would  be two years and  four months’  imprisonment.  Ms Noorland refers me to a range of cases (Wong-Tung v R; R v Smith; Aguna v R; Karauria v R; and Joe v R) to support the contention that the starting point of four years’ imprisonment was beyond the available range.23

Assessment authorities

[11]              As there is no guideline judgment for kidnapping, it is necessary to consider relevant authorities. I have found the following three cases to be of most assistance.

R v Smith

[12]              In Smith, the Judge adopted a starting point of four years’ imprisonment for a highly premeditated kidnapping of an ex-partner who had ended an intermittent relationship of 15 years. The offender waited outside the victim’s home early in the morning and, as the victim got into her van, the appellant grabbed her and pushed her forcefully into the back of the van. The appellant enlisted  an associate  to drive  them to a makeshift campsite under a bridge. The offender and victim stayed at the campsite overnight before the victim got help from a passing motorist, nearly 24 hours after she was taken.

[13]              The offending was regarded as serious, sinister and potentially life threatening. It occurred on the back of a tumultuous relationship, the victim having left the country for a period to get away from the appellant, and in breach of a protection order. The offender had handcuffs, thumb-cuff ties and insulation tape, and a firearm with two bullets, which he told the victim were for each of them. The victim was distressed and feared for her life.

22     Although acknowledged in oral argument that this submission might be ambitious.

23     Wong-Tung v R [2024] NZHC 473; R v Smith [2018] NZHC 2361; Aguna v R [2020] NZCA 127;

Karauria v R [2022] NZHC 1490; and Joe v R [2019] NZCA 394.

Cassidy-Gugich v R

[14]              The Crown refers me to Cassidy-Gugich v R.24 The Crown notes there is some similarity to this case as the confinement was to a vehicle, but it was only short-term and there was limited physical violence and no injury.

[15]              The offending occurred in the context of unwanted contact with an ex-partner who had ended the relationship. The offender convinced the victim to get into his car and talk to him, but then drove away. The victim repeatedly asked him to stop, yelled at passersby, and tried to open the door. He responded by slamming on the brakes causing the victim to hit her head on the dashboard. The offender drove for seven kilometres. As they passed a dairy, the victim threw her bag out of the window and told people to call the police. As she tried to call the police herself, the offender grabbed her cell phone and threw it out the window. He then returned her to the dairy where members of the public intervened and he drove away.

[16]              The Judge considered a few cases involving short-term kidnappings and noted that:

[16]  ... starting points from approximately two and a half years’ imprisonment are adopted in relation to defendants who briefly detain a former partner, at least when there is associated violence or threats of violence, or another aggravating feature or features. Longer and more serious instances of kidnapping obviously attract more severe sentences.

[17]     The Judge held that the starting point of two years and six  months’ imprisonment was unremarkable.

Wong-Tung v R

[18]     In Wong-Tung v R, the offender waved down the victim and got into her car under the guise of knowing her brother. He then made the victim drive him to various Auckland addresses. He showed her a firearm which he loaded and unloaded. When he asked the victim to drive to Hamilton, she became angry and he responded by loading the firearm and pointing  it at her, and snatching her phone away. She drove to Hamilton and the offender took over the driving to various addresses, dealing in

24     Cassidy-Gugich v R, above n 8.

methamphetamine and picking up firearms and ammunition. At one point the offender’s associate got into the vehicle, physically and indecently assaulted the victim, and forced her to smoke methamphetamine despite her resistance. They returned to Auckland the following morning, but before allowing her to leave (after being seen by her father), he threatened the victim.

[19]     A starting point of three years and six months’ imprisonment was undisturbed on appeal, although Gordon J considered that a starting point of four years would have been available.

Decision

[20]     I accept that there was a greater level of premeditation and a longer period of detention in  Smith, but this case has the serious aggravating feature of two incidents  of strangulation. I also accept that Wong-Tung had aggravating features not present here, including directing the victim to drive to facilitate serious offending under the threat of a loaded firearm. On the other hand, it did not involve intimate partner violence, strangulation, or actual physical harm. Cassidy-Gugich is less comparable given the short duration of the offending, and the absence of physical violence or threats.

[21]     I consider a global starting point of four years for the kidnapping and strangulation charges was within range. Strangulation can have a “devastating psychological impact on victims”, which makes it a “uniquely effective form of intimidation, coercion and control”.25 It is recognised as a precursor of more serious criminal offending, particularly, homicide.26 It is “potentially lethal; undertaking it typically involves both coercive control and the knowing assumption of risk of really serious harm”.27 An abuser who strangles a victim may not be intending to kill but is

25     Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348 at [22] citing Law Commission

Strangulation: The Case for a New Offence (NZLC R138, 2016) at [1.2].

26     Shramka v R, above n 25, at [18] and [42(a)]; Law Commission Strangulation: The Case for a New Offence, above n 25, at [2.26]–[2.28].

27     Shramka v R, above n 25, at [23].

demonstrating that they can kill.28 These factors are directly relevant to the appellant’s culpability and increase the need for deterrence and community protection.29

[22]     Strangulation is a significant feature of the present offending. Based on the guidance provided by Shramka v R, I consider the strangulation offending would be classed as moderate, involving at least four aggravating factors: victim vulnerability (the parties’ physical and psychological disparity given the victim was unable to break free of his hold and was being detained against her will);  threats (the appellant indicating that resistance would attract greater harm); aggravated violence (20-30 seconds on two occasions, on the second occasion while partially on top of the victim and causing her to think she was going to die); and psychological harm to the victim (including the terror of what he might do). The strangulation offending on  its  own may well have justified a starting point of around three years.

[23]     For these reasons, I consider that, after accounting for the seriousness of the strangulation, a starting point of four years’ imprisonment  was unobjectionable. Standing back, I do not consider that the end sentence of three years’ imprisonment is manifestly excessive.

[24]Accordingly, I dismiss the appeal.

La Hood J

Solicitors:

Todd & Walker, Queenstown for Appellant Crown Solicitor, Invercargill for Respondent

28 At [23]. Law Commission Strangulation: The Case for a New Offence, above n 25, at [1.2], [2.16] and [2.25].

29     Sentencing Act 2002, s 7(f)–(g).