Martin v Police HC Rotorua CRI 2007-470-24

[2007] NZHC 1946

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2007-470-24

DWANE REGAN MARTIN

Appellant

v

THE POLICE

Respondent

Hearing:         11 July 2007

Appearances: G McArthur for appellant

E Tan for respondent

Judgment:      11 July 2007

(ORAL) JUDGMENT OF ALLAN J

Solicitors/counsel :

G McArthur DXHP40107, Tauranga

Crown Solicitor Tauranga [email protected]

MARTIN V THE POLICE HC ROT CRI 2007-470-24  11 July 2007

[1]      Mr Martin appeals against a sentence of eight months imprisonment imposed upon him in the District Court at Tauranga on 14 May 2007 on charges that, being a male he assaulted a female, and of breaching a protection order by psychological abuse.  Mr Martin had pleaded guilty to those charges.

[2]      The background can be shortly stated.  The victim of the present offending was the appellant’s former partner, with whom he had been in a relationship for some time, broken by periods of separation.  At an early stage, on 15 February 1993, a protection order was made against the appellant on the application of his partner. That order remains in force.

[3]      On 26 February 2007, the complainant confronted the appellant about an affair between the appellant and another woman, which had resulted in a pregnancy. The appellant had consumed a quantity of alcohol and was mildly intoxicated.  Upon being confronted with the complainant’s knowledge of his other relationship, he became angry, smashing a number of household items, and threatening to kill the complainant.   It is appropriate to record here that the complainant was not apprehensive about those threats which had been made frequently in the past, and she believed that he had no real intention to harm her.

[4]      While threatening her in this way, however, the appellant had a knife in his hand.   It seems that arose simply by reason of ordinary kitchen activities.   The complainant did not suggest that she was threatened with the knife, or that the appellant was doing anything with it, other than simply holding it.   The couple became involved in a certain amount of pushing and pulling.   As a result of the struggle, the complainant received minor bruising to her arms.

[5]      A little later the complainant drove the appellant to his residence.  The proper inference from that is the complainant did not fear any further violence on the part of the appellant, whether actual or threatened.   That inference is strengthened by the victim impact report in which the complainant says that she was really annoyed at discovering the appellant’s relationship with another woman, and that her complaint to the police was probably somewhat exaggerated in consequence.  She says that the

appellant pushed her, but she did not suffer any harm, that she is now in a new relationship and wishes to move on.

[6]      For his part, when asked for an explanation, the appellant apparently told the police that his dinner was cold and the complainant had wasted the food.  That is of course a completely untenable explanation.  It provides no justification whatever for what occurred.

[7]      The appellant has a dismal record of violent offending spanning more than 10 years.  There are about a dozen convictions for assaults of varying severity, some of them aggravated in the sense that they involved the use of weapons.  Some of the assaults are domestic, some are against the police.   As a result, the appellant has served several terms of imprisonment.   It is not in dispute that at the heart of this pattern of violent offending lies the appellant’s inability to deal with alcohol.  The pre-sentence report contains a detailed summary of his drinking problems which seem to have begun at a very early stage.   As the appellant accepts, his drinking gives rise to utterly unacceptable behaviour, characterised by an inability to control his anger.

[8]      There is some indication that the appellant has a degree of insight into his difficulties.   He has participated in a number of community based programmes, aimed at bringing his dependence on alcohol to an end, but his response to those programmes has been equivocal. Most recently he told the writer of the pre-sentence report that the programmes simply made him want to drink more.

[9]      His prior offending has generally arisen in the context of alcohol abuse.  He claims he has been unable to remember most of his offending because it took place when he was highly intoxicated.    The pre-sentence report contained a recommendation for a sentence of imprisonment, and indicated that the appellant lacked the motivation to confront the factors which contributed to his offending throughout a significant proportion of his life.

[10]     He is 34 years of age, has two children aged 11 and nine years respectively from a previous relationship, but he does not see his children a great deal by reason of his relationship difficulties with their mother.

[11]     The learned District Court Judge was confronted by a somewhat difficult sentencing task.  On the one hand there was Mr Martin’s very poor previous record, involving numerous convictions for violent offending, and there  was the under- pinning alcohol problem which Mr Martin apparently lacked the skills or will power to tackle.  On the other hand there was the fact that this particular assault was plainly towards  the  lower  end  of  the  spectrum.    In  making  that  observation  I  do  not downplay for a minute the seriousness of an incident, which at least at the time, must have been very stressful for the complainant.  But she has been at pains to say in her victim impact statement that she suffered no harm from being pushed, as alleged by the police, nor could the report of minor bruising elevate this offending to any significant degree.

[12]     The Judge expressed the view that the appellant had not demonstrated his ability to do something realistic and worthwhile about his alcohol problem.   That was a legitimate concern.  So also were the aggravating features which he identified; namely, the presence of the knife, the undoubted trauma caused to the complainant, and the element of an abuse of trust which arose by reason of the vulnerability of the complainant.

[13]     But I need to say something more about the issue of the knife.  The Judge had earlier accepted that the appellant had the knife in his hand for legitimate reasons connected with his previous activities in the kitchen, yet he seems to have counted the presence of the knife in the appellant’s hand among the aggravating factors he was bound to take into account.  I am satisfied it was not proper to regard the knife as relevant in any way to the offending with which this appeal is concerned.

[14]     The Judge acknowledged the guilty plea, but said that he was bound to take into account the long list of prior convictions for offending of a similar type.   He noted that a sentence of four months imprisonment imposed upon the immediately

preceding occasion had not deterred the appellant, and decided to adopt a starting point of 12 months imprisonment.

[15]     This morning Mr McArthur has handed up to me the sentencing notes when the appellant was last sentenced by Judge Harding on 16 September 2005.  The notes are relatively brief, and it is a proper inference from them that the Judge was largely, but quite properly, influenced by the fact that the appellant had already served on remand a term of imprisonment, which would probably have been reflected in the ultimate sentence.   In other words, in imposing the sentence of four months imprisonment he may well have taken into account to some degree that it had already been served by the appellant.

[16]     The  Judge  in  the  present  case  did  not  increase  the  figure of  12  months imprisonment by reason of the appellant’s bad record, but it is a proper inference that that already formed part of the reasons which led to the selection of that starting point.  The Judge allowed a credit of one-third, or four months, for the guilty plea, and sentenced the appellant to a term of imprisonment of eight months.   On the charge of breaching a protection order he sentenced the appellant to two months imprisonment to run concurrently with the lead sentence.  Leave to apply for home detention was declined.

[17]     For the appellant, Mr McArthur advances two separate arguments.  First he says the Judge may have been subconsciously influenced by the fact that he worked during the early stages of the sentencing hearing from a summary of facts which was inaccurate and had been replaced by a later version.  The earlier summary cast the offending  in  an  altogether  more  serious  light.    In  particular,  it  placed  greater emphasis on the appellant’s possession of the knife.

[18]     I do not accept this argument.   This experienced District Court Judge was well able to put out of his mind factual material which no longer formed part of the police  case.    He  was  provided  with  the  correct  summary  of  facts  during  the sentencing process.   His comment that “the circumstances of this assault certainly were not the most serious” is consistent with his having turned his mind to the correct summary.  The Judge carefully noted that the victim was not concerned about

the threat to kill, that the appellant’s possession of the knife played no significant part in the assault itself, and that the complainant took the appellant home to his own residence once  the  incident  was  over.    It  is  plain  he  paid  careful  and  accurate attention  to  features  which  are,  although  on  the  surface  aggravating factors,  on further analysis, of little import.  This ground of appeal must accordingly fail.

[19]     In the alternative, Mr McArthur submits that the sentence was manifestly excessive.  He has referred to a number of authorities in support of that submission.

[20]     The maximum penalty for the lead offending is two years imprisonment.  The starting point was fixed at a term which was one-half of the maximum.  On its face, given  the  relatively  minor  character  of  this  offending,  that  starting  point  was certainly stern, even though it necessarily included an allowance for the appellant’s previous record.   On appeal, it can be a mistake to resort too readily, by way of comparison, to sentences imposed in other cases.  That is because the circumstances of the offending and of the offender can vary widely.  No two cases are the same. However, two recent appeals in this court are of some assistance.

[21]     The first in time is the decision of Heath J in Grayson v Police HC HM 2006-

419-31 6 April 2006.  There, Mr Grayson was at the home of his ex-partner.   An argument developed and the appellant slapped his former partner in the face on one occasion.    Later that same night he returned – by then he was intoxicated.  He let himself into the house, and on being asked to leave broke a number of windows, but there were no further assaults.  The appellant was charged with careless driving (an independent matter), male assaults female and intentional damage.   The District Court Judge took a starting point of 10 months imprisonment, and deducted three months to take account of an early guilty plea.  That was on the assault charge.  The appellant was convicted and discharged on the remaining charges.

[22]     As here, the appellant had been before the Court on a number of occasions with respect to assaults.  Like the present appellant, he was a persistent offender.  In particular, in 1989 he had been convicted of aggravated assault and sentenced to two and a half years imprisonment.   By the time of sentencing the complainant had softened her attitude towards the appellant, although Heath J expressed the view that

it was open to the Judge to be sceptical about that change of heart.  Heath J also took the view that the intentional damage charge may have been incorporated in the Judge’s mind into the lead offending, so as to impose a single sentence based on the totality principle.

[23]     But in the light of all the circumstances, Heath J took the view that the sentence imposed by the learned District Court Judge was excessive.   In reaching that conclusion he noted that the District Court Judge had observed that, but for the appellant’s prior record, the particular assault would probably not have warranted any term of imprisonment at all.   Heath J considered that the appropriate starting point ought to have been eight months imprisonment, from which he deducted three months for mitigating factors including the guilty plea.  Accordingly, he quashed the sentence of seven months imprisonment and imposed a sentence of five months imprisonment.

[24]     In the second case, Yeo v Police HC AK CRI 2006-404-283 14 September

2006, the appellant had assaulted his girlfriend.  They were together in a motor car when an argument developed.  The appellant grabbed his girlfriend around the throat and held her head in his lap for a time while driving.  After stopping he pulled her hair and her shirt, ripping it, and punched her once in the face.   The complainant received a large bruise on the underside of her right upper arm, but did not require medical attention.

[25]     The appellant was 19 years old, and had no previous convictions for violence. He pleaded guilty to charges of male assaults female, driving while disqualified, wilful damage, failing to answer District Court bail and failing to appear.  He was sentenced to nine months imprisonment on the male assaults female charge, which was treated as the lead charge, and granted leave to apply for home detention.

[26]     Asher  J  considered  a  number  of  authorities,  including  Grayson.     He concluded that the District Court Judge had proceeded on a wrong principle, in that he had failed to articulate any discount for the early guilty plea, for the appellant’s youth, or for his relatively restricted previous record, which included no convictions for violent offending.  Asher J concluded that the sentence was manifestly excessive,

and that the starting point ought to have been, at the highest, no more than eight months imprisonment.  From that figure he deducted three months, in order to reflect the appellant’s youth, his lack of convictions for previous violent offending, and for guilty plea.  The Judge noted that it was very likely imprisonment could have been avoided altogether but for the appellant’s bad record in not responding to sanctions and community based sentences for other non-violent offending.

[27]     I return to this case.   It is not really in dispute that the offence itself falls towards the lower end of the range of seriousness.  Had the appellant been free of convictions for violent offending, it is conceivable that a community based sentence, or a very short term of imprisonment may have been appropriate.  But that approach was out of the question in the light of the appellant’s record.

[28]     That does not mean however that the limited seriousness of the assault itself is to be ignored.  It must remain central in the sentencing process.  The Court was of course bound to take into account the fact that this was the appellant’s fourth conviction for male assaulting a female and Ms Tan quite properly submits that it is apparent that the appellant has not been deterred by past custodial sentences from further violent offending.  She submits this morning that the need for denunciation and deterrence must be at the forefront of the court’s approach on appeal.  I accept that submission.

[29]     However, according those considerations proper weight, it is impossible to escape the conclusion that the starting point of 12 months imprisonment chosen here, was simply too high, having regard to the limited seriousness of the offence itself. This case has a number of similar features to those which arose in Grayson, and which prompted Heath J to reduce the ultimate sentence from seven to five months imprisonment.

[30]     In this case, the Judge was plainly influenced by the appellant’s poor record, and rightly so, but in imposing a sentence of 12 months imprisonment I think he must have taken the appellant’s poor previous record into account to a greater degree than is appropriate in the light of the authorities.  For that reason, the sentence he imposed was manifestly excessive.   In my view, the appropriate starting point was a

term of nine months imprisonment.   The Judge deducted one-third for the guilty plea.  I consider he was correct to have done so, and I do the same here.  There will therefore be a discount of three months to reflect the plea.

[31]     In  the  result,  the  appeal  is  allowed.     The  sentence  of  eight  months imprisonment is quashed, and a sentence of six months imprisonment is substituted.

C J Allan J