Michael John Garfield LEACOCK-JOHNSON v New Zealand Police

[2010] NZHC 1025

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2010-412-15

BETWEEN  MICHAEL JOHN GARFIELD LEACOCK-JOHNSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 May 2010

Counsel:         L Garthwaite for Appellant

R D Smith for Respondent

Judgment:      12 May 2010

ORAL JUDGMENT OF MILLER J

[1]      This is an appeal against an effective sentence of 30 months imprisonment imposed on six charges, arising out of two incidents.

[2]      The first incident, on 3 December 2009, led to a charge of male assaults female and another of intentional damage.  The appellant committed the second set of offences on 4 February 2010, while on bail for the first.  The second set comprise male assaults female, intentional damage, breach of a protection order and refusing to permit a specimen of blood to be taken.

[3]      The victim of the offences was the appellant’s partner.  The facts of the first incident are that he went to her home at about 4.30am.   She let him in, but an argument began in the bedroom.  He pulled the blankets off the bed and flipped over the mattress and spat in her face a number of times.  He punched her in the head once with his fist.  She asked him to leave but he tipped the bed onto its side and

followed her into the lounge where he threw a coffee table across the room.  Using a

LEACOCK-JOHNSON V N Z POLICE  HC DUN CRI 2010-412-15 12 May 2010

cigarette, he burned a number of holes into the carpet.  At the time he was subject to a sentence of community work.

[4]      The second incident occurred after the appellant had been drinking at a hotel. I observe that his conditions of bail required that he not drink alcohol, that he observe a curfew, and that he not approach the victim.  A protection order had also been issued following the first incident.  However, he went to the victim’s home at about 3.40am and banged on the door.  He was refused entry but smashed a window, allowing him to unlock the door and let himself in.  He pushed the victim onto the bed, grabbed her leg and twisted it, and hit her in the head.   He was located on Mailer Street a short time later.  He had been driving a car, and refused to undergo either an evidential breath test or a blood test.

[5]      The appellant has a number of previous convictions;   they include two for male assaults female or domestic assault, one for assault on a child, three for wilful damage, four for breach of community work or supervision conditions, and a number of driving offences, including three for driving with excess breath or blood alcohol. It appears that the same woman was the victim of one of the earlier assaults.  He has previously  served  a  sentence  of  imprisonment.    Because  it  was  his  third  or subsequent drink-driving offence, his refusal to permit a blood specimen exposed him  to  a maximum sentence of  two  years  imprisonment.    The same maximum penalty was available for the male assaults female and breach of protection order charges, while the charge of intentional damage attracted a maximum sentence of three months imprisonment.

[6]      It appears that the appellant pleaded guilty at the first reasonable opportunity.

[7]      The Judge divided the offences into three groups for sentencing purposes. The first set comprise the offences of 3 December 2009, the second the offences against the victim on 4 February, and the third the driving offence.  He noted that the aggravating features of the first set of offending were that the appellant was subject to a community-based sentence at the time, while the aggravating features of the second set were that he was on bail, the same victim was involved, and the offending was of the same kind.

[8]      The Judge noted that the probation officer recommended home detention at a house in which he would be the sole occupant.  The victim also sought a community- based  sentence  in  her  second  victim  impact  statement  (the  only one  which  she actually signed.)  It appears that she is pregnant to him, and she believes that he is remorseful and committed to change.  Nonetheless, the pre-sentence report was not positive.  The appellant had an entrenched propensity for violence.  He presented a moderate to high risk of reoffending, and his ability and motivation to comply with a community-based sentence were questionable.   The previous convictions were a personal aggravating feature.

[9]      The   Judge   concluded   without   difficulty   that   any   sentence   short   of imprisonment would not achieve the purposes and principles of sentencing, emphasising that domestic violence is unacceptable, that in this case the same victim had been assaulted on several occasions, that he had offended while on bail, and that the facts of the offending were serious.

[10]     For the first set of charges, the appropriate starting point on the lead offence of male assaults female was 18 months imprisonment, reduced by six months for the guilty plea.  A further three months was added for the previous conviction involving the same victim, resulting in an effective sentence of 15 months imprisonment.  A sentence of two months imprisonment for intentional damage was to be concurrent.

[11]     With respect to the second set of charges, the appellant was sentenced to nine months imprisonment on the charge of male assaults female.  No starting point was specified.  The breach of the protection order earned him six months imprisonment, and the intentional damage charge two months imprisonment.  Those sentences were concurrent with one another but the effective sentence of nine months imprisonment was added to the 15 months for the first set of charges, the Judge reasoning that a cumulative sentence was required for violent offending against the same victim while on bail.

[12]     The   sentence   for   the   drinking   and   driving   charge   was   six   months imprisonment, cumulative upon the other sentences because it was different in kind.

In addition, an order was made under s 65 of the Land Transport Act 1998, the effect of which was that the appellant was disqualified indefinitely.

[13]     On appeal, Ms Garthwaite pointed out that the starting point for the male assaults female on 3 December was two-thirds of the maximum.  She argued that the three-month uplift was excessive.   The only previous offence involving the same victim was a common assault a year earlier, for which he received 40 hours community work.  No specific credit was given for the guilty plea on the 4 February charges.  The effective sentence offended the totality principle and the sentence for the drink-driving charge need not have been cumulative as it could be seen as part of the same incident.  She invited me to substitute a sentence of home detention, and to accept that a rehabilitative approach is both open and appropriate.  The appellant’s instructions are that he is committed to rehabilitation including the completion of a stopping violence course.

[14]     I do not accept that the Judge was wrong to employ cumulative sentences. Although the same victim was involved, the incidents were separate in time, and the second occurred while he was on bail and after a protection order had been issued. The drink-driving offence did occur on the same evening as the second incident but it was quite different in kind, requiring a deterrent sentence in itself.   Concurrent sentences would not adequately have reflected the appellant’s culpability for the three sets of offences.

[15]     Nor do I accept that the starting point for the first incident was out of the available range.  While it was not the worst offence of its type, I do not think it can be characterised as offending at the lower end of the scale.   The assault must be taken to include the punching and the spitting, and the property damage had to be taken into account when setting a starting point.  Mr Smith correctly characterised it as a nasty case of domestic violence.   It has been said repeatedly that the Courts cannot display leniency towards such offending.

[16]     Further, I do not accept that the Judge failed to give credit for the guilty pleas to the second and third set of offences.  Having regard to the starting point for the first incident and the aggravating factors of the second, the sentence of 12 months

must reflect a substantial implicit discount for the pleas.  I acknowledge that it would have been helpful had he specified the discount given.

[17]     Lastly, I am not persuaded that the offending breached the totality principle, which the Judge did not overlook.  The totality principle need not compel an overall reduction  in a  series  of  discrete  sentences;    rather,  the question  is  whether  the aggregate sentence is wholly out of proportion to the gravity of the offending.  In this case, unfortunately for the appellant, the offending involved an accumulation of aggravating factors:   the previous assault against the same victim, other relevant previous convictions, and the repeated offending against her while on bail and while a protection order was in force.  The victim’s forgiveness was an offsetting factor but had to be approached  with caution in light of the history of offending and the negative pre-sentence report.   The Judge might have chosen a more rehabilitative approach, accepting that the appellant does require intensive rehabilitation.   But it cannot be said that he erred by opting for a sentence that emphasised deterrence and denunciation.    Although the appellant maintains that he is committed to rehabilitation, there is no real evidence of that commitment.

[18]   In the result, the effective sentence, although stern, was not manifestly excessive.  It follows that home detention was unavailable.  The appeal is dismissed.

Miller J

Solicitors:

Farnan Garthwaite Law, Dunedin for Appellant

Crown Solicitor’s Office, Dunedin for Respondent