M v The the Queen

[2022] NZHC 582

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-0004

[2022] NZHC 582

BETWEEN

M

Appellant

AND

THE QUEEN

Respondent

Hearing:	22 March 2022
Appearances:	S L McColgan for Appellant B R Smith for Crown
Judgment:	25 March 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 25 March 2022 at 4.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Pollett Legal Ltd, Crown Solicitor, Tauranga Counsel:  S L McColgan, Auckland

M v R [2022] NZHC 582 [25 March 2022]

[1]        The appellant, M, appeals against a sentence of four years, two months’ imprisonment imposed by Judge Bidois on 18 January 2022.1

[2]        M contends his sentence was manifestly excessive, and in particular, that the Judge’s starting point on the family violence charges referred to below was excessive, that the Judge was influenced by falsehoods in the victim impact statement (“VIS”), and that he gave insufficient discounts for personal mitigating factors and time spent on EM bail.

[3]        I must allow the appeal if satisfied there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case. The Court does not simply substitute its own view for that of the original sentencing Judge.3 Rather, it must be shown the sentence is manifestly excessive or wrong in principle.4 The focus is on the end sentence, rather than the process by which the sentence was reached.5

Offending

[4]        M pleaded guilty to 11 charges, which Judge Bidois broke down into three groups:

(a)Drugs: possession of methamphetamine for supply;6 supplying methamphetamine;7 possession of methamphetamine,8 possession of cannabis for supply,9 and possession of ecstasy.10

1      R v [M] [2022] NZDC 751.

2      Criminal Procedure Act 2011, s 250(2).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

4      Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R , above n 3, at [30]—[35].

5      Tutakangahau v R , above n 3, at [36].

6      Misuse of Drugs Act 1975, ss 6(1)(f) and (2): Maximum penalty life imprisonment.

7      Sections 6(1)(c) and (2): Maximum penalty life imprisonment.

8      Sections 7(1)(a) and (2): Maximum penalty six months’ imprisonment, or a $1000 fine.

9      Sections 6(1)(f) and (2): Maximum penalty eight years’ imprisonment.

10     Sections 7(1)(a) and (2): Maximum penalty three months’ imprisonment, or a $500 fine.

(b)Family violence: strangulation;11 injuring with intent to injure;12 assault with intent to injure;13 male assaults female;14 and a representative charge of breaching a protection order.15

(c)A representative charge of attempting to pervert the course of justice.16

[5]        The Judge adopted a starting point of three years, three months’ imprisonment on the drug offending.

[6]        On the family violence offending, the Judge identified the strangulation as the lead offence and adopted a starting point of 18 months’ imprisonment. The Judge noted the strangulation had lasted several minutes but that the victim had not lost consciousness, an occurrence which would indicate the victim’s life was in danger.

[7]        The Judge added one year for the injuring with intent charge, another year for the remaining family violence charges, and a further nine months for the attempting to pervert charge. This brought the starting point on those charges to four years, three months’ imprisonment, and gave a total starting point of seven years, six months’ imprisonment, which the Judge reduced to seven years for totality.

[8]        From there, the Judge uplifted by three months to take account of M’s prior criminal history and the fact that the drug offending occurred whilst M was on bail.

[9]        The Judge then gave a 20 per cent discount for M’s guilty pleas, a further 20 per cent for personal factors and rehabilitation efforts, and a further two months for the 11 months that M had spent on EM bail with a 24-hour curfew.

Facts

[10]The victim of the family violence charges was M’s partner.

11     Crimes Act 1961, s 189A(b): Maximum penalty seven years’ imprisonment.

12     Section 189(2): Maximum penalty five years’ imprisonment.

13     Section 193: Maximum penalty three years’ imprisonment.

14     Section 194(b): Maximum penalty two years’ imprisonment.

15     Family Violence Act 2018, s 11: Maximum penalty three years’ imprisonment.

16     Crimes Act, s 117: Maximum penalty seven years’ imprisonment.

[11]      In March 2017, a male friend touched the victim’s shoulder. Enraged, M slapped the victim’s face twice with force and broke her computer by stamping on it. This gave rise to the male assaults female charge.

[12]      In October 2017, M shouted abuse at the victim, shoved her to the floor, and straddled her so that she could not escape. As he continued to shout at her he squeezed her throat and shook her, banging her head and back on the floor. He continued to squeeze her throat for several minutes. The complainant suffered bruising to her throat, arms and back. This gave rise to the charge of assault with intent to injure. I note that the offence of strangulation, which carries a maximum penalty of seven years, was not enacted at the time of this offending. I assume that is the reason for the less serious charge.

[13]      In April 2019, the couple had an argument, during which M “shoved the complainant around the lounge”. The victim struck M on the head with a half full bottle of vodka, fracturing his eye socket. The Judge acknowledged the victim had done this, but characterised M’s response as excessive.

[14]      M’s response entailed him pulling the victim to the floor by her hair, stamping on her back and hip, kicking her legs, neck and head, and punching her in the face four to six times. These assaults gave rise to the charge of injuring with intent.

[15]      M then grabbed the victim’s throat and squeezed hard for several minutes, during which M spat in the victim’s face. The summary of facts states the strangulation “lasted a few minutes” and the victim thought that she was going to die. This gave rise to the strangulation charge.

[16]      M’s attack on the victim lasted three hours. M left the victim’s address, returning about 45 minutes later and telling the victim he loved her. When the victim refused to let him stay, M threw her possessions around the room, shoved and shouted at her, and finally left.

[17]      As a result of M’s offending, the victim suffered a swollen face, a torn bleeding left ear, a bleeding and weeping right ear, a swollen lip and a black eye, reddened skin

on her throat, bruising and welts on her chest, and bruising on her rib area under left arm. The victim also had nail marks on her neck, bruised hips and arms, and was left terrified that M would kill her.

Protection order

[18]      Shortly thereafter, on 26 April 2019, the Family Court issued a protection order against M.  M breached the order by sending the victim three emails between 1 and  5 May 2019. He wrote that he loved her, missed her, and wished to meet and talk to her about their relationship.

Attempting to pervert the course of justice

[19]      M also had contact with the victim on numerous occasions in June 2019. He attempted to persuade the victim not to give evidence, or to diminish the seriousness of the offending. On one occasion he offered her $25,000 not to attend Court. On another he told her he would kill himself if she went to Court. Hence the charge of attempting to pervert the course of justice.

Starting point

[20]      Mr McColgan submits that the Judge’s approach of identifying a starting point for strangulation, uplifting that starting point three times, and discounting for totality led to an artificially inflated end sentence. He submits that instead the Judge should have treated M’s family violence offending “in the round” and sentenced him for the totality of his violent offending.

[21]      As the Crown submits, the approach the Judge adopted was open to him.17 The important point is whether the combined starting point, and end sentence for that matter, was within range.

[22]      Mr McColgan submits the starting point for the violent offending and attempting to pervert the course of justice should be no more than three years’

17     Maihi v R [2016] NZCA 205 at [22]; Milne v Police [2020] NZHC 358; and Vela v R [2020] NZCA 153.

imprisonment, and to illustrate this referred me to cases in which defendants committed more serious offending than M’s. These authorities were R v Jury, and three cases including strangulation, being Ackland v Police, Mokaraka v Police, and Parker v Police.18

[23]      Jury involved five separate incidents of family violence over approximately three months.19 The defendant hit the victim with a metal candelabra and an electric fan, punched, slapped and strangled her. On one occasion he forced her into his car leading to a charge of kidnapping. On another he made as if to throw her off a cliff, which resulted in a charge of threatening to kill. Following an early complaint, he persuaded her to change her evidence, leading her to be charged with making a false complaint. After his arrest he again attempted to persuade her, this time unsuccessfully.

[24]      Lang J applied a starting point of three years’ imprisonment for the offending as a whole, uplifted by one year, six months’ imprisonment, cumulative, on the attempting to pervert charge, giving an overall comparable starting point for 4 years, six months. I accept that Mr Jury’s offending was at least as serious, and quite possibly more serious, than M’s. It involved weapons, kidnapping and threats to kill.

[25]      Turning to the cases of strangulation, the defendant in Ackland told the victim “if you want I can end it all now” and strangled her until she lost consciousness, in the presence of her children. On appeal Cooke J upheld a starting point of three years, three months’ imprisonment.20

[26]      In Mokaraka, the defendant told the victim he would kill her, strangled her, bit her fingers when she resisted, then detained her for several hours and verbally abused her.21 In Parker, the victim told the defendant she wanted to end their relationship. The defendant punched a wall, strangled her, and said “it’s not over till I say it is”.

18     R v Jury HC Gisborne CRI-2009-416-4, 31 July 2009; Ackland v Police [2019] NZHC 312, [2019] NZAR 1112; Mokaraka v Police [2020] NZHC 718; and Parker v Police [2020] NZHC 479.

19     R v Jury, above n 18.

20     Ackland v Police, above n 18.

21     Mokaraka v Police, above n 18.

This was the culmination of a series of escalating assaults.22 In both cases, this Court upheld a starting point of two years’ imprisonment.

[27]      Mr McColgan submits M’s offending is similar to that in Parker and Mokaraka, but slightly less serious as it did not involve threats. It is much less serious than Ackland as there were no children present, the victim did not lose consciousness, and again there were no threats.

[28]      In relation to the April 2019 attack, the Crown refers to two cases including strangulation and other violence, Lowery v R and Milne v Police.23

[29]      In Lowery, the appellant punched his partner once in the head. The next day, he accused her of being unfaithful, punched her once in the head, once in the stomach, and then pinned her down and strangled her for 20 seconds.24 Brewer J adopted a two year starting point for the strangulation, and uplifted it by six months for a representative charge of assault with intent to injure which covered both days, and contravening a protection order.

[30]      In Milne, the appellant headbutted his partner, then strangled her until she felt as if she would pass out, all in front of her young children.25 Duffy J adopted a starting point of two years’ imprisonment for the strangulation and uplifted it by six months for the headbutt.

[31]      On the remaining family violence charges, the Crown refers to Teka v Police. In that case, the appellant pinned his ex-partner to the floor by her neck, then choked her, impeding her breathing and causing bruising.26 Venning J adopted a starting point of 15 months’ imprisonment. The Crown submits these facts are similar to those giving rise to the charge of assault with intent to injure in this case, and therefore a 12-month uplift was within range.

22     Parker v Police, above n 18.

23     Lowery v R [2020] NZHC 667; and Milne v Police, above n 17.

24     Lowery v R, above n 23.

25     Milne v Police, above n 17.

26     Teka v Police HC Auckland CRI-2009-404-253, 7 September 2009.

[32]On the charge of perverting the course of justice, the Crown refers me to

Coombes v Crown Law and Ledgerwood v R.27

[33]      In Coombes the appellant, charged with assaulting his partner, offered her $600 to change her evidence, and also asked his father and sister to contact her on his behalf. The victim then sought to withdraw her statement. Dunningham J adopted a starting point of two years, six months’ imprisonment.

[34]      In Ledgerwood, the appellant sent veiled threats to the victim of an assault via social media, and called him a “snitch” and a “narc”. Dunningham J upheld a three year starting point. The Crown submits the uplift of nine months was therefore generous.

[35]      The Crown also submits the Court should treat Jury with caution as that case involved no strangulation.

Discussion

[36]      I do not accept Mr McColgan’s submissions that the Judge’s combined starting point on the violence and attempting to pervert charge was outside the available range. Indeed, it was well within that range.

[37]      The Judge was correct to adopt the April 2019 strangulation as the lead offence. As I have said, that offence carries a maximum term of imprisonment of seven years. It is dangerous offending and those who commit it can be expected to be treated accordingly. The Judge’s 18-month starting point, for a strangulation effected to such an extent the victim thought she would die, was lenient, even if retaliation for the victim striking M with the bottle.

[38]      M’s other April 2019 offending was more serious than that in Lowery and Milne. It lasted several hours, and included several acts of violence, and breaching a protection order. The Judge’s one year for that offending was lenient.

27     Coombes v Crown Law [2015] NZHC 584; and Ledgerwood v R [2017] NZHC 822.

[39]      The uplift of 12 months for the 2017 offending was also within range. The offending in Teka was less serious than the balance of M’s violent offending.

[40]      Nor can there be any complaint about the nine month uplift for the attempting to pervert charge. On its face, the number of aggravating factors in Coombes exceeded those in this case and, in that case, the victim was in fact persuaded to change her evidence. However, as in that case, M offered the victim money to change her evidence. He also threatened to kill himself. In my view, Coombes is a comparable case and the uplift of nine months in the present case was again generous.

[41]      For the sake of completeness, I am not persuaded that Jury is an appropriate comparator. Aside from anything else, Mr Jury was not for sentence on the same lead offence. A single case, drawn from 2009, does not alter my view that M was treated generously.

Victim impact statement

[42]      Mr McColgan submits the Judge must have been influenced by the following statements in the VIS which were not in the summary of facts, had never before been asserted and which were not supported by evidence:

(a)The victim alleged the April 2019 attack was unprovoked and completely unexpected, whereas in fact she provoked M by hitting him with a bottle.

(b)The victim claimed she lost consciousness and suffered broken bones during the attack, and that M had arranged for gang members to hurt her.

(c)The victim contended M’s breaches of the protection order caused her to leave her job and home out of fear. In fact, the victim voluntarily rekindled her relationship with M after receiving the emails.

[43]      I am not persuaded there is anything in this point. The Judge’s description of the offending was consistent with the summary of facts and not the VIS. Moreover,

as I have just said, the Judge’s overall starting point having regard to the summary of facts can only be considered lenient.

Discount for personal factors

[44]      I turn now to the submissions concerning the sufficiency of the Judge’s 20 per cent credit for personal mitigating factors. These personal factors were addiction, mental health issues, and M’s efforts to rehabilitate.

[45]      Mr McColgan submits the discount should have been 30 per cent and referred me to R v Philip as a useful comparison.28 Counsel for the respondent, Mr Smith, submits that the Judge’s 20 per cent was in range.

[46]      A discount was plainly warranted, as the Judge recognised. M’s early years were marked by the presence of an alcoholic and violent father from whom his mother separated; unsatisfactory experiences at boarding school where his life seems to have been a complete misery; and experimentation with and then addiction to drugs.

[47]      There is no doubt also that in custody M proved to be a model prisoner, and that he has applied himself diligently to rehabilitation, seeing several programmes through to the end (bar one, where a better alternative presented itself), and apparently with success. There is some suggestion in the reports that this is not the first time M has sought to rehabilitate but that does not matter particularly. The important thing is that M persists with his efforts.

[48]      As to quantum, however, I do not accept that 20 per cent was outside the available range.

[49]      Mr McColgan referred me, and the Judge for that matter, to R v Philip.29 There the defendant was for sentence solely on methamphetamine offending. He received a 30 per cent discount for the effect of both mental health issues and addiction on his offending, as well as his efforts to rehabilitate and his remorse. Mr Philip was abused as a child, first by his stepfather and then in state care, and suffered from foetal alcohol

28     R v Philip [2021] NZHC 2393.

29     R v Philip, above n 28.

syndrome, ADHD, PTSD and dyslexia. Mr Philip began sniffing glue at the age of nine before moving to other drugs. He was disconnected from Māori culture and joined the Mongrel Mob for a sense of community. Since the offending, he had made progress in rehabilitation, motivated by remorse for his offending and a desire to be a good father to his new-born son. Mr Philip was more disadvantaged by his background and deficits than M. However, I take Mr McColgan’s point that Mr Philip received a substantial discount.

[50]      For his part, Mr Smith submits that the Judge’s 20 per cent discount was within range. Mr Smith refers me to the Court of Appeal’s 20 per cent discount to the appellant in Agar v R who was before the Court on violence charges, and for burglary and non-compliance with a sentence of home detention.30 Mr Agar also suffered from PTSD and other conditions associated with childhood trauma, and likewise used drugs to self-medicate. The Court of Appeal accepted that Mr Agar’s methamphetamine addiction clearly influenced his offending. Following the offending he successfully rehabilitated by completing a residential rehabilitative programme and remaining sober. He also displayed consistent remorse. So Mr Agar’s case was similar to the present.

[51]      Other recent cases of relevance in relation to discounts for personal factors are Harris v Police (15 per cent) and the authorities referred to therein (ranging from 12 to 15 per cent), and R v Beckett in which the Judge allowed 20 per cent for personal circumstances akin to M’s and efforts to rehabilitate.31

[52]      Accordingly, whilst I accept that 20 per cent was not at the top of the available range, nor am I persuaded it was below the available range. It is often said that sentencing is not an exact science and the Court on appeal will not interfere with a sentence solely because in another case a similarly placed offender received a larger discount, or a lesser one for that matter.

30     Agar v R [2021] NZCA 350.

31     Harris v Police [2022] NZHC 345; and R v Beckett [2021] NZHC 3118.

Discount for time spent on EM bail

[53]      M spent 11 months on EM bail with a 24-hour curfew, with permitted absences largely confined to attending Alcoholics and Narcotics Anonymous meetings.

[54]      It was common ground before me that, at sentencing, the Crown accepted a six month reduction was appropriate for M’s time on EM bail, but the Judge only allowed two months. The Judge seems to have had in mind that M could hardly complain about being on EM bail when he had sought to be released to rehabilitation facilities for which he had received a discount to his sentence.

[55]      However, the purpose of a discount for time spent on EM bail is to acknowledge time spent observing restrictive conditions before a sentence is given.32 I gather there was one breach or alleged breach but even if there was a breach, M was compliant and that should receive a sufficient recognition.

[56]      In the usual run of things, a discount of, say, four or five months would be appropriate for the 11 months that M spent on EM bail. However, as the Crown was willing to allow six months at sentencing, it must be taken to have thought that fair in the circumstances. Given that, I shall allow M the additional four months and reduce the final sentence from the Judge’s 50 months’ imprisonment to 46 months. In all other respects the sentence is unchanged.

Result

[57]      The appeal is allowed in part. I vary M’s end sentence from four years, two months’ imprisonment to three years, 10 months’ imprisonment.

Peters J

32     Parata v R [2017] NZCA 48 at [11].