Mason v Police
[2022] NZHC 475
•16 March 2022
SUPPRESSION ORDERS EXIST IN RELATION TO ASPECTS OF THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011: SEE PARAGRAPH [89].
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2022-406-000001
[2022] NZHC 475
MICHAEL ANDREW MASON v
POLICE
Hearing: 3 March 2022 Appearances:
M Zintl for the Appellant
J W N Cameron for the Respondent
Judgment:
16 March 2022
JUDGMENT OF GRICE J
(Sentence Appeal)
MASON v POLICE [2022] NZHC 475 [16 March 2022]
Contents
Introduction [1]
Background to the offending [4]
Family violence offending [5]
Dishonesty offending [11]
Driving offending [12]
Assault on a prison officer [13]
Lower court decision [14]
Submissions [28]
Appellant's submissions [28]
Respondent's submissions [29]
Approach to appeal [30]
Discussion [34]
Starting point for family violence offending too high [35]
Insufficient discounts for personal factors [46] No discounts for driving and assault on prison officer charges [67] No adjustment for totality [72]
Conclusion [87]
Introduction
[1] On 14 December 2021, in the District Court at Blenheim, Mr Michael Mason (the appellant) was sentenced to five years and nine months’ imprisonment.
[2]The appellant was sentenced on the following charges:
(a)strangulation (x3);
(b)injuring with intent to injure (x4);
(c)assaulting person in a family relationship (x4);
(d)threatening to kill (x3);
(e)forgery (x3);
(f)obtaining by deception (x7);
(g)shoplifting;
(h)causing loss by deception;
(i)unlawfully converting a motor vehicle (x2);
(j)driving in a dangerous manner;
(k)failing to stop for red and blue flashing lights;
(l)breach of release conditions; and
(m)assault on a prison officer.
[3] The appellant appeals against sentence on the basis the sentence imposed was manifestly excessive.
Background to the offending
[4] The charges fall into to four sets of offending that occurred over a number of months in 2020:
(a)family violence offending;
(b)dishonesty offending;
(c)driving offending; and
(d)assault on a prison officer.
Family violence offending
[5] The details of the family violence offending are outlined in the sentence indication and sentencing decision in the District Court.
[6] All of the family violence offending was committed against the same victim in the course of an intimate relationship. The victim was pregnant with their child throughout the offending against her.
[7]The three strangulation charges arise out of the following incidents:
(a)On 24 February 2020, the appellant pressed his thumbs into the centre of the victim’s throat, restricting her ability to breathe.
(b)On 25 February 2020, the appellant using a key as a weapon applied pressure to the victim’s pharynx for approximately 10 seconds, restricting her ability to breathe.
(c)In June 2020, the appellant pinned the victim to the wall and used the webbing between his thumb and forefinger to lift her onto her tippy-toes, restricting her breathing to the point of almost losing consciousness.
[8] There are four charges of injuring with intent to injure. In February 2020, the appellant used a phone charger cord to whip the victim’s face. On 7 March 2020, the appellant used a knife to stab the victim in the forearm. On 6 July 2020, the appellant struck the victim in the head with a soap dish, causing a small laceration.
[9] The four charges of assaulting a person in a family relationship relate to holding of the victim’s throat, pushing the victim into walls, and threatening to assault the victim with a rake.
[10] There are three charges for threatening to kill. These involve threats to slit the victim’s throat, to kill the victim and to tie the victim up on various occasions.
Dishonesty offending
[11] The dishonesty charges represent a spree of offending over a number of months all over the country. Over a period between 1 January 2020 and 26 August 2020, the appellant committed a number of frauds and thefts, stole money and committed forgery. For example, in relation to the obtaining by deception and forgery charges, the appellant would forge letters from the Accident Compensation Society stating he was to receive a significant payment and use these to purchase (mainly) vehicles, including over online buying and selling platforms such as Facebook Marketplace and Trade Me, without ever paying for them.
Driving offending
[12] On 3 September 2020, the appellant was in Queenstown travelling towards Frankton. He was signalled to stop by police using lights and sirens. The appellant accelerated away from police, erratically overtaking several vehicles in heavy traffic. The appellant reached speeds of 130km/h. The appellant was located a short while later in Frankton by the vehicle, which had broken down. The appellant admitted the above facts and in explanation stated he “freaked out”.
Assault on a prison officer
[13] On 3 May 2021, the appellant was on remand at Invercargill Prison. The appellant entered into an altercation with another inmate. A prison officer intervened
and was holding the other inmate against the wall. The appellant made to punch at the inmate, missed and hit the prison officer in the middle of his face.
Lower court decision
[14] The appellant was sentenced on 14 December 2021 in the District Court at Blenheim.1 The sentencing was made in accordance with a prior sentencing indication earlier given by the Judge on 3 August 2021.2 That sentencing indication had been accepted by the appellant. The details of that indication are set out below.
[15] However, the Judge also took into account additional information provided since the sentencing indication about the appellant’s personal circumstances. This was contained in a probation report, psychiatric report, cultural report as well as in two letters the appellant had written, one to the victim of the family violence offending and one to the Court. There was a letter in support from the appellant’s mother.3 The Judge recorded that the appellant’s lawyer sought significant credits for matters personal to the appellant, namely five per cent for remorse, 20 per cent for matters set out in the cultural report and 15 per cent for the matters set out in the psychiatric report.4
[16] In terms of the information contained in the psychologist’s report, the Judge accepted that the effects of what the appellant suffered during his childhood will have been significant and affected the appellant for the rest of his childhood and into his adulthood.5 The Judge recorded the appellant’s antisocial personality disorder, obsessional personality characteristics, grief, drug use, post-traumatic stress disorder (PTSD) and factors contributing to an immature and pathological personality structure.6 The Judge recorded that the appellant was attending counselling and she hoped the appellant would continue to embrace that as well as other rehabilitation programmes whilst in prison.7
1 R v Mason [2021] NZDC 25733 [the sentencing decision].
2 R v Mason DC Te Waiharakeke | Blenheim CRI-2020-006-284, 3 August 2021 [the sentencing indication].
3 The sentencing decision, above n 1, at [17].
4 At [18].
5 At [23].
6 At [25]–[27].
7 At [24] and [26]–[27].
[17] Against the background of the extreme abuse and trauma the appellant had suffered as a child, the Judge acknowledged the support of his mother throughout his life.8
[18] In terms of the information contained in the cultural report, the Judge noted the appellant was proud to be Māori and wants to explore his cultural identity.9 The Judge agreed that kaupapa Māori pathways for rehabilitation should be offered to the appellant in the future.10
[19] The Judge recorded her concern that the appellant had been described as a “manipulative and deceitful prisoner”.11 The Judge explained she was concerned about this because of how important it was that while in custody the appellant focus on rehabilitation and understand how significant his offending behaviour was.12 The Judge emphasised this was important so that the appellant would not offend again on being released from prison and harm others in the same way in the future.13
[20] Overall, in relation to the additional information contained in the reports provided, the Judge said:
[31] I am satisfied on the evidence that has been provided, that there is a causal link between the trauma and abuse that you suffered as a child and your personality characteristics, which in turn led to your drug use and your offending behaviour, both violent and dishonest. When I consider that in the context of your offending behaviour generally and the seriousness of it, I consider that the appropriate credit to be given to you for matters personal to you, is 15 per cent. What I intend to do because I intend to impose cumulative sentences, is to allow you the credit for the pleas and for your personal circumstances to each set of sentences that is imposed. That means you receive the same credit on each type of sentence.
[32] In respect of the family violence offending, I am also going to give you a further five per cent credit for remorse. I consider that your remorse is genuine in regard to your violent offending. …
8 At [30].
9 At [28].
10 At [28].
11 At [19].
12 At [19].
13 At [20]–[22].
[21] As noted above, in terms of the sentences imposed the Judge adopted the sentences indicated at the earlier sentence indication, then applied discounts in relation to the information contained in the additional reports.
[22] For the family violence offending the Judge adopted a nominal starting point of three years and six months’ imprisonment for the three strangulations in total plus an uplift of 18 months for the remaining family violence charges.14 This resulted in a nominal end sentence for the family violence offending of five years’ imprisonment.15 The Judge then applied a 25 per cent discount for the appellant’s guilty pleas and a 15 per cent discount for the appellant’s personal matters as set out in the s 27 and s 38 reports provided to the Court. The Judge also provided a discount of five per cent in relation to the family violence offending for the appellant’s remorse.16 This amounted to a total discount of 45 per cent in relation to the family violence offending, resulting in an end sentence of two years and nine months’ imprisonment on the family violence charges.17
[23] In terms of the dishonesty charges, the Judge noted the appellant had left behind him “a trail of dishonest destruction” causing some of the victims of that offending to suffer significantly.18 The Judge noted that the appellant was not in a position to repay any of his victims for the losses caused.19 For the dishonesty offending, the Judge adopted a start point of four years’ imprisonment.20 The Judge applied a 25 per cent discount for guilty plea and 15 per cent discount for personal matters, a 40 per cent discount in total.21 The Judge also applied a 10 per cent uplift for the appellant’s previous dishonesty convictions, noting that the appellant’s history for dishonesty offending was “quite frankly appalling” and the uplift “could well have been more”.22 This resulted in an end sentence of two years and nine months’ imprisonment for the dishonesty offending.23
14 At [5].
15 At [5].
16 At [32].
17 At [32].
18 At [8].
19 At [10].
20 At [11] and [33].
21 At [33].
22 At [14].
23 At [33].
[24] The Judge treated these two sentences as cumulative on the basis the two sets of offending were distinct and “different in nature and kind”.24 This resulted in a cumulative sentence of five and a half years’ imprisonment.
[25] The Judge considered the sentence in respect of the two sets of offending in entirety and opted not to make any adjustment for totality.25 The Judge considered the term of five and a half years’ imprisonment recognised the appellant’s overall offending behaviour.26
[26] To this the Judge then added a cumulative sentence of one month imprisonment for the dangerous driving charge as well as a cumulative sentence of two months’ imprisonment for the assault on a prison officer charge.27 Although the Judge noted the assault on a prison officer charge has a maximum penalty of three years’ imprisonment, the Judge noted they were “very aware of the totality principle and of the need to ensure that the overall sentencing outcome [was] not disproportionate to [the appellant’s] overall offending behaviour.”28
[27] Accordingly, the final end sentence imposed was five years and nine months’ imprisonment.29
Submissions
Appellant's submissions
[28] The appellant submits the total end sentence should have been no more than four to four-and-a-half years. There are four grounds of appeal pursued by the appellant:
(a)the starting point in relation to the family violence offending was too high;
24 At [11] and [35].
25 At [35].
26 At [35]. The appellant was also sentenced in relation to a number of the other charges with terms of imprisonment to be served concurrently to those described here.
27 At [36]. The appellant was also disqualified from driving for six months in relation to the driving charge.
28 At [12].
29 At [37].
(b)the discount given by the Judge for the appellant’s personal factors was insufficient;
(c)the Judge failed to provide the appellant any discounts for the driving and assault on the prison officer charges; and
(d)the Judge should have made a downwards adjustment of six to 12 months for totality.
Respondent's submissions
[29]The respondent opposes the appeal. The respondent submits that:
(a)on the basis of previous case law, the starting point of three years and six months for the three incidents of strangulation is arguably lenient, and the 18-month uplift was appropriate, having regard to the ongoing nature of the violence and the use of weapons and attacks to the head against a vulnerable victim.
(b)a 15 per cent discount when applied to the bulk of the offending (both the violence and dishonesty charges) represents a significant acknowledgement of the appellant’s issues and is sufficient overall;
(c)while the Judge should have provided discounts to the driving and assault charges, even if the full 40 per cent discount were given in respect of this offending, it would amount only to a reduction of a little over one month, or 1.7 per cent of the total sentence, which would amount to “tinkering”; and
(d)the end sentence was not “wholly out of proportion” to the gravity of the overall offending and the Judge was right not to make any adjustment for totality.
Approach to appeal
[30] This appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. Under s 250, an appeal against sentence is an appeal against a discretion and must only be allowed if the court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.30 The court must dismiss the appeal in any other case.31 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.32 An appellate court will not intervene unless a sentence was outside the range available to the sentencing Judge.33
[31]If the appeal is allowed, the appeal court must:34
(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or
(b)vary the sentence, any part of the sentence, or any condition of the sentence; or
(c)remit the sentence to the court that imposed it and direct that court to take any action as specified by the appeal court.
[32] While s 250(2) makes no express reference to “manifestly excessive”, in Tutakangahau v R the Court of Appeal said the concept of “manifestly excessive” was “simply a means of examining the significance of the error to decide whether a different sentence should be imposed”,35 a claim which “is inevitably premised on the contention of a prior error” such as a starting point which is too high, incorrect discounts being given, or a lack of parity with co-offenders.36
30 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
31 Criminal Procedure Act 2011, s 250(3).
32 Ripia v R [2011] NZCA 101 at [15]; and Tutakangahau, above n 30, at [36].
33 Tutakangahau, above n 30, at [36].
34 Sentencing Act 2002, s 251.
35 At [32].
36 At [32].
[33] Thus, for the appeal to be successful in this case, it must be shown that the end sentence of five years and nine months’ imprisonment was “manifestly excessive”.
Discussion
[34] The appellant submits the total end sentence should have been no more than four to four-and-a-half years. I deal with each of the four grounds of appeal.
Starting point for family violence offending too high
[35] Mr Zintl, for the appellant, submits that the starting point of five years’ imprisonment on all the family violence charges was too high. The appellant says the starting point should have been no more than four to four-and-a-half years’ imprisonment.
[36] The appellant accepts that the strangulation charges were the lead charges and the starting point adopted in relation to these (that is, three-and-a-half years) was within the range appropriate for the appellant’s offending in this case, having reference to other cases. However, the appellant submits that an uplift of no more than 12 months’ imprisonment ought to have been adopted in relation to the remaining violent offending, some of which was part of the strangulation incidents and so should not be “double counted”. The appellant submits that the overall starting point here should have been no more than four-and-a-half years’ imprisonment.
[37] The respondent submits that on the basis of previous case law, the starting point of three years and six months for the three incidents of strangulation is arguably lenient. It says that the 18-month uplift was entirely appropriate, having regard to the ongoing nature of the violence and the use of weapons and attacks to the head against a vulnerable victim. Notwithstanding, that the offending did not result in loss of consciousness and incontinence, Mr Cameron points out the persistence and seriousness of the incidents, particularly given the victim was pregnant. The respondent points to the observation made by the Judge in her earlier sentencing
indication that in her view the additional violence notwithstanding the strangulation would have warranted a start point of between three to three-and-a-half years alone.37
[38] The respondent points to Bowring v Police as a case which dealt with the same issue, namely an uplift for violent offending beyond a strangulation charge.38 In that case the trial Judge had adopted a start point of 20 months’ imprisonment for the strangulation charge and applied an uplift of 12 months for the assault with intent to injure and six months for the threatening to kill. On appeal Gwyn J noted that in most cases, uplifts of six months were generally applied for two or three minor additional assaults. Her Honour concluded a nine-month uplift would have been appropriate for the assault with intent to injure charge and the six-month uplift actually applied for the threatening to kill charge was appropriate.39 The respondent points out that the offending in that case was specific and did not result in loss of consciousness, took place over the course of just under one month and involved only three charges. The respondent submits that the offending in this case is far more serious and sustained, justifying an 18-month uplift.
[39] There is no dispute as to the starting point adopted in relation to the strangulation charges. The question for consideration here is whether an 18-month uplift was within the range available to the sentencing Judge.
[40] The starting point for the strangulation charges is relevant to the extent that it may be described as excessive or lenient. As demonstrated in Bowring, if the starting point adopted was at the lower end, larger deference may be warranted for the sentencing Judge’s assessment for a larger uplift. Of the authorities referred to by counsel for the appellant, most were single act strangulations and attracted starting points between two years and three years and three months. In T v Police the Judge held that a starting point of three years for one charge of strangulation and other offending was lenient and up to four years would have been available.40 That case involved near-fatal strangulation and was near the “worst class of strangulation”. In
37 The sentencing indication, above n 2, at [42].
38 Bowring v Police [2020] NZHC 3252.
39 The appeal in that case was dismissed notwithstanding this, on the basis a higher starting point for the strangulation charge had been available to the sentencing Judge.
40 T v Police [2019] NZHC 3375, [2020] 2 NZLR 270.
this case, there were multiple instances of strangulation occurring on three distinct days.
[41] The starting point in this case is well within those referred to in the authorities. Indeed, the sentence of three and a half years falls squarely within the middle of the mid-range band Cooke J described in Ackland v Police, as somewhere between intentional pressure to the throat for a brief period at the lower end and home invasion, intermittent strangulations, threats to kill and achieving mental coercive control and power over the victim at the higher end.41 Later decisions have subsequently further informed the approach to be taken, noting that culpability will turn more on the subtleties of the offending than a strict adherence to bands.42 There is some difficulty in comparing incidents particularly where they are serious. In Milne Duffy J stated that the sentencing tariff bands for strangulation are helpful but “the ultimate determination of a starting point will turn on the factual matrix of the particular offending, which allows regard to be had to the subtleties of the offending and the distinctive characteristics of strangulation.”43
[42] Because the offending in this case involved multiple instances of strangulation occurring on separate occasions, as well as aggravating factors including breach of trust, a very vulnerable victim, a (limited) element of detention, evidence the victim was near to losing consciousness on at least one of the strangulations, and the use of a weapon, if anything I accept the respondent’s submission that this starting point was lenient. The sentencing Judge should be allowed some scope in terms of the uplifts applied for other offending.
[43] Turning to the additional offending, I do not believe that an uplift of 18 months was manifestly excessive. Apart from the strangulation, the offending involved a number of charges of injuring with intent to injure and of assault on a person in a family relationship and charges of threatening to kill. The Judge considered that the additional family violence would have justified a start point of between three to three and a half years by itself notwithstanding the strangulations. The Judge applied the
41 Ackland v Police [2019] NZHC 312, [2019] NZAR 1112 at [32].
42 Parker v Police [2020] NZHC 479 at [22].
43 Milne v Police [2020] NZHC 358 at [22].
established approach in relation to family violence involving strangulation, which is to take strangulation as the lead charge and then add an uplift for any additional offences charged.44
[44] An 18-month uplift is admittedly not insignificant. However, the additional offending in this case beyond the strangulations is serious. It is significantly more serious and violent than those attracting additional uplifts given for additional offending in other strangulation cases,45 and involved a swathe of offending over time. While the 18-month uplift could be said to be at the higher end as an uplift, each charge by itself could arguably warrant an uplift of its own of between three and six months. Given the extensive and serious nature of the offending I do not consider that an uplift of 18 months in the round was either manifestly excessive in itself or led to a starting point that was manifestly excessive.
[45]I would dismiss this ground of appeal.
Insufficient discounts for personal factors
[46] The appellant submits that the discount of 15 per cent provided for the appellant’s personal factors was too low, given the contents of the s 27 (cultural) and s 38 (psychological) reports. The appellant says the two reports provided a credible and detailed account of early childhood trauma, including sexual and physical abuse, alcohol and drug abuse, and social and cultural dislocation. Mr Zintl, for the appellant, says these factors contributed to the appellant’s offending and a discount of at least 20 per cent ought to have been provided.
[47] The respondent notes that the sentencing Judge had significant information before her at sentencing about the appellant’s background and circumstance. The respondent suggests the causal link between the appellant’s personal circumstances and the family violence offending is stronger than that for the dishonesty offending. The respondent submits that a 15 per cent discount when applied to the bulk of the
44 Parker, above n 42, at [23].
45 See for example Parker, above n 42; Ackland, above n 41; Milne v Police, above n 43; and
Mokaraka v Police [2020] NZHC 718.
offending (both the violence and dishonesty charges) represents a significant acknowledgement of the appellant’s background issues and is sufficient overall.
[48] The respondent accepts it may be possible to discern a link between the appellant’s personal circumstances and the family violence offending, due to the timing of the appellant’s brother’s death and the direct reference to his death during some of the offending. However, the respondent submits it is more difficult to conclude that the appellant’s moral culpability is reduced on account of the appellant’s personal factors for the ongoing sophisticated and premeditated fraud against strangers. This is, rather, evidence of the appellant’s deceitful and manipulative nature.
[49] In sentencing an offender, the court must take into account the offender’s personal, family, whānau, community and cultural background,46 as well as any particular circumstances of the offender that mean that a sentence that would otherwise be appropriate would in the particular instance be disproportionately severe.47
[50] Reports are provided under s 27 of the Sentencing Act and s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP) Act) to the Court on these matters. In Carr v R the Court of Appeal stated that where a s 27 report contains a “credible account” of factors such as social and cultural dislocation and violence as features of the offender’s upbringing these ought to be taken into account in sentencing.48
[51] The Crown does not dispute the appropriateness of the 15 per cent discount the Judge applied in respect of the matters detailed in the reports was justified. The question is whether this was insufficient to recognise the effects of those matters in respect of the offending, and whether this ultimately resulted in a sentence that was manifestly excessive as a result.
[52] The appellant points to cases in which larger discounts have been applied and upheld.
46 Sentencing Act, s 8(i).
47 Section 8(h).
48 Carr v R [2020] NZCA 357 at [60].
(a)In R v Heta, Whata J upheld a discount of 30 per cent for the matters contained in the offender’s cultural report in relation to charges of causing grievous bodily harm with intent and common assault.49
(b)In R v Edwards, which involved serious family violence, the Judge gave the offender a 20 per cent discount for his cultural report, noting the offender’s childhood could hardly have been more traumatising, and that the offender’s trajectory to the criminal justice system was mapped out long before his first sentence of imprisonment at 18 years old.50
(c)In R v Takamore the Judge gave the offender a 20 per cent discount for factors identified in the cultural report.51 The Judge said the experiences of violence, criminality and gang culture he had had from a young age had contributed significantly to his later behaviour and offending, being aggravated burglary.
[53] There is no doubt the appellant in this case has had an extremely difficult and traumatic upbringing.
[54] The appellant was physically and sexually abused and assaulted [redacted: see suppression order below at [89]].
[55][Redacted: see suppression order below at [89]].
[56] The appellant has been diagnosed with post-traumatic stress disorder (PTSD), which was reportedly present during his offending behaviours, as well as depression. Features of the PTSD, such as intrusive flashback memories of abuse and associated feelings of shame, anxiety and mood disturbance have affected the appellant and are seemingly responsible for much of the appellant’s antisocial behaviours.
[57] The appellant has features of a mixed personality disorder, including narcissistic, antisocial and obsessive and compulsive personality features. The
49 R v Heta [2018] NZHC 2453.
50 R v Edwards [2019] NZHC 2148.
51 R v Takamore [2019] NZHC 2315.
appellant has a need to be admired and recognised by others and limited empathy. These factors appear to have contributed to the appellant’s inability to maintain stable intimate partner relationships.
[58] The appellant also has drug and alcohol use disorders, including alcohol, cannabis and cocaine abuse.
[59] I also note that that at the time of some of the family violence offending the appellant was dealing with the immediate grief of having lost his brother to cancer.
[60] The appellant has also not had any opportunity to understand or explore his Māori heritage. The appellant reports a desire to learn te reo Māori and become knowledgeable of tikanga Māori as well as to engage in kaupapa Māori pathways of intervention and rehabilitation.
[61] The Judge was correct to treat any discounts for the two reports as one global discount, as the reports cover similar matters and provide evidence of effects on the appellant that had a causative impact on his current offending.
[62] Medication has been unhelpful in treating the appellant and resulted in considerable side effects. It seems clear that treatment and counselling, including drug and alcohol rehabilitation, is necessary for the appellant to deal with the personal features as outlined above. It is desirable that these should take place according to a kaupapa Māori framework if possible.
[63] Counsel points out that the appellant has completed approximately 20 sessions of grief counselling and is participating in additional counselling to address childhood trauma
[64] I consider however, the Judge did not err in applying a 15 per cent discount for the factors in relation to both the violence and dishonesty offending. The Crown argued the conservative link between the factors in the reports and the dishonesty offences was more tenuous though with the violence offending which involved and intimate relationship.
[65] I consider it was open to the Judge to apply the discount to both as it is difficult to isolate exact attributions. Nonetheless, the violent offending was closer in context to the factors in the appellant’s background.
[66] I note with approval the appellant’s acceptance of responsibility for his actions in relation to the family violence offending and record the evidence that he is attempting to understand why he acted in the unquestionably terrible way that he did. The Judge noted concern at reports of the appellant being a “manipulative and deceitful prisoner”,52 but this does not change my overall conclusion on this ground of appeal.
No discounts for driving and assault on prison officer charges
[67] The appellant submits the Judge erred in failing to provide any discounts at all for the appellant’s guilty pleas or personal factors in relation to the sentences cumulatively imposed for the dangerous driving and assault on a prison officer charges.
[68] The respondent accepts an error on the part of the Judge in this respect. The three months’ cumulative sentence should either have been added to the nominal end start point prior to discounts being calculated or otherwise attracted their own analysis as to appropriate discounts.
[69] However, the respondent submits that even if the full 40 per cent discount were given in respect of this offending, it would amount only to a reduction of a little over one month, or 1.7 per cent of the total sentence. The respondent submits this would amount to “tinkering” with the sentence.
[70] In this respect I accept the respondent’s submission. I do not consider that either of the sentences imposed on these charges was manifestly excessive, notwithstanding the admitted failure to apply the discounts to these. I note in particular that the maximum penalty for the assault on a prison officer charge is three years’ imprisonment. The starting point adopted of two months is consequently by all
52 The sentencing decision, above n 1, at [19].
measures very low. The Judge should have applied the discounts to these sentences as well or otherwise provided another analysis for why the discounts were not applicable to these charges. Notwithstanding this, the Judge’s failure in this regard did not result in end sentences imposed in relation to these offences which could be said to be manifestly excessive.
[71]I would dismiss this ground of appeal.
No adjustment for totality
[72] Section 85 of the Sentencing Act provides that when imposing cumulative sentences, the Court must consider the totality of the offending. It relevantly provides as follows:
85 Court to consider totality of offending
(1) …
(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.
…
[73] The appellant accepts that it was appropriate for the Judge to treat the two sets of offending as different and therefore impose cumulative sentences. However, the appellant submits that the end sentence imposed was wholly out of proportion to the gravity of all the offending. The appellant says the Judge should have provided a totality discount, standing back and looking at the sentence as a whole.
[74] The appellant points out that these charges were the appellant’s first convictions for violence and that despite his lengthy list of previous convictions the appellant is still a relatively young Māori man. The appellant submits that a totality discount of six to 12 months should have been provided, putting the end sentence at somewhere between four-and-a-half to five years’ imprisonment.
[75] The respondent submits that the Judge was right not to make any adjustment for totality. It says a totality adjustment is not automatic. In the respondent’s
submission, the sentence in this case was carefully constructed on a principled basis, incorporating entirely different types of offending perpetrated over a significant period of time causing considerable harm to multiple victims. Noting that the sentence applied discounts totalling over 40 per cent, the respondent submits the end sentence was not “wholly out of proportion” to the gravity of the offending.
[76] The respondent relies on the decision in R v Hugenholtz in support of its case.53 In that case the appellant was sentenced to three years and nine months’ imprisonment on three tranches of unrelated offending, including family violence offending that occurred over a day of prolonged abuse and included strangulation, threatens to kill, assault with a weapon and assault person in a family relationship. The sentencing Judge declined to make any totality adjustment on the starting point of six years and 10 months’ imprisonment, but then applied discounts of 45 per cent. Though Peters J would have taken a different approach to the construction of the sentence, she dismissed the appeal, finding that even if the start point was too high, the generous discounts of 45 per cent would bring the end sentence within range.
[77] The totality principle is “the established judicial approach to sentencing for multiple offences”.54 The essence behind the principle is that in arriving at the appropriate sentence for several offences, the sentencing Judge must assess the offender’s overall culpability and determine what effective sentence is appropriate for the totality of their conduct.55
[78] In considering an adjustment for totality, the way in which the total sentence is arrived at is of secondary importance to the overriding consideration, being a sentence appropriate to reflect “the totality of the offending”.56 In respect of multiple offences a Court on appeal will not insist that the total sentence be arrived at in any particular way.57 Rather, how it is constructed is a matter of the statutory guidance provided and individual discretion and assessment in the particular circumstances.58
53 R v Hugenholtz [2020] NZHC 659.
54 R v Strickland [1989] 3 NZLR 47 (CA) at 50; and see R v Dodd [2013] NZCA 270 at [31].
55 R v Strickland, above n 54, at 50.
56 R v Barker CA57/01, 30 July 2001 at [10].
57 At [10].
58 R v Williams CA91/00, 31 May 2000.
[79]Clearly, the principle must be applied flexibly. As the Court of Appeal said in
R v Williams:59
We reject the argument that there is a particular way in which total sentences must be put together in respect of multiple offending. The issue is what is an appropriate total sentence for the various charges which have been admitted or proved. How that is constructed in the particular circumstances is a matter of individual discretion and assessment.
[80]This was endorsed by the Court in R v Barker, in which it said:60
… in imposing a sentence which reflects the totality of the offending this Court will not declare a sentence manifestly excessive because of the particular way in which the sentencing Judge has chosen to construct the sentence, unless the method adopted results in a sentence which is overall clearly too high.
[81]This is supported by Giles v R, in which Cooke J stated:61
Section 85 [of the Sentencing Act] provides that if a Court is considering cumulative sentences it must not result in “a total period of imprisonment wholly out of proportion to the gravity of the overall offending”. A totality reduction is not automatic. Importantly it is an assessment that should be made at the end of the sentencing methodology, as it goes to the overall appropriateness of the end sentence given the cumulative effect.
[82] As can be discerned from the above, a totality adjustment is not automatic.62 Once the adjusted final starting point has been arrived at for various offences, the Judge should stand back and assess the issue of totality overall.63 Where the end sentence by aggregating the individually appropriate sentences is not “wholly out of proportion to the gravity of the overall offending”, no reduction is required.64
[83] Mr Zintl pointed out, however, that the Judge had in the sentencing indication said that she could not at that stage outline what the exact adjustment for totality would be. Mr Zintl said that suggested a totality adjustment should have been expressly applied at the end of the sentencing process. The Judge in the same paragraph noted that in respect of the dishonesty offending the appropriate approach, subject to hearing
59 At [11].
60 R v Barker, above n 56, at [12].
61 Giles v R [2020] NZHC 2372 at [47].
62 At [47]; and Ashcroft v R [2014] NZCA 551 at [32].
63 Polaapau v R [2020] NZCA 227 at [44].
64 Ashcroft, above n 62, at [32].
from counsel, would likely be that cumulative sentences would be imposed on the lead charges involving violence.65
[84] In the final sentencing notes it is clear the Judge turned her mind to the totality of the sentence in relation to the overall offending behaviour. She said she was “very aware of the totality principle and of the need to ensure that the overall sentencing outcome is not disproportionate to [the appellant’s] overall offending behaviour.”66 The Judge stood back and looked at the cumulative sentence in its entirety. It is arguable that this was in relation to the cumulative sentences for the family violence and dishonesty offending and not the additional cumulative sentences of one month for the driving charges and two months for the assault charge. However, the Judge’s comments about totality immediately preceded the paragraph dealing with the sentence of three months. She moves from there to the end sentence. She was not obliged to give a discount for totality and even if she did fail to expressly refer to the totality principle in relation to the additional three months, doing so was not a material error in this instance because the sentences for the two sets of offending represented such a large proportion of the sentence in its entirety.
[85] A sentencing Judge must be allowed some flexibility in the assessment of the totality of the sentence. The offending involved was serious and the Judge ultimately applied discounts of upwards of 40 per cent in total on the significant two groups of offending.
[86] In these circumstances, I find the Judge did not err in the decision not to make any adjustment for totality.
Conclusion
[87] I do not consider that the end sentence imposed of five years and nine months’ imprisonment was manifestly excessive. The judge made no relevant errors. The Judge applied discounts for personal features of the appellant that were appropriate to
65 The sentencing indication, above n 2, at [45].
66 The sentencing decision, above n 1, at [12].
recognise the causative effect of these on his offending and the totality of the sentence in relation to the gravity of the overall offending was within range.
[88]The appeal is dismissed.
[89] The final suppression order made in the District Court continues to apply. The Judge noted:67
… I make a final order for suppression of the details related to Mr Mason’s personal circumstances that I will be referring to in this sentencing decision. There is no suppression about the fact that I am giving him a credit for his personal circumstances related to matters when he was young, but the exact circumstances will not be able to be reported.
Grice J
Solicitors:
Marcus Zintl Barrister, Marlborough O’Donoghue Webber Crown Law, Nelson
67 At [1].
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