Mitchell v Police
[2019] NZHC 3264
•11 December 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-485-60
[2019] NZHC 3264
BETWEEN KERRYN MITCHELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 December 2019 Appearances:
C J Tennet for the Appellant
G J Burston for the Respondent
Judgment:
11 December 2019
Reissued:
20 December 2019
JUDGMENT OF COOKE J
[1] On 26 June 2019 Ms Mitchell was convicted of two charges of breach of a protection order and one charge of burglary before Judge Tompkins in a judge alone trial in the District Court at Hutt Valley.1 For those convictions she was sentenced to two years, nine months’ imprisonment.2
[2] Ms Mitchell now appeals the burglary conviction and one of the breach of protection order convictions on the ground the Judge erred in his assessment of the evidence. Ms Mitchell appeals her sentence on the grounds the starting point was too high, the Judge did not consider totality, the case was not one where a penalty near to
1 New Zealand Police v Mitchell [2019] NZDC 16222 [Conviction decision]; Domestic Violence Act 1995, s 49, maximum penalty three years’ imprisonment; Crimes Act 1961, s 231, maximum penalty 10 years’ imprisonment.
2 New Zealand Police v Mitchell [2019] NZDC 19697 [Sentencing decision].
MITCHELL v NEW ZEALAND POLICE [2019] NZHC 3264 [11 December 2019]
the maximum prescribed was appropriate and the Judge failed to give a discount for the factors outlined in the psychiatric report.
Factual background
[3] Ms Mitchell is 51 years old. She was briefly in a relationship with the victim who is a subject of the protection order. That relationship ended in 2005. Since then she has had an unhealthy fixation on the victim and his wife. A protection order had initially been obtained on 24 April 2008, and in May 2010 was extended to protect the victim’s partner. Ms Mitchell has continued to harass the victims despite the imposition of the protection orders. She has served several sentences of imprisonment for offending against them and has amassed a large number of convictions.
[4] The latest set of offending arises from an incident in June 2018. The victims were on holiday in the United Kingdom. They had arranged for a family member to look after their home while they were away. At approximately 11 pm on 27 June Ms Mitchell went to the victims’ address in Lower Hutt. She entered the rear yard and attempted to open the doors to the rear entrance. For this activity she was charged with both breach of a protection order and burglary.
District Court decision
[5] At the District Court Ms Mitchell represented herself, with Mr Yeoman appointed as counsel to assist the court. After reminding himself of the burden of proof, the Judge turned to the charges before him.
[6] The Judge was satisfied beyond reasonable doubt that an initial and then temporary protection order was made in early 2008 initially protecting the victim and later extended to include his wife. A certified true copy of the order had been provided to the Court. Under the protection order Ms Mitchell was prohibited from entering the protected persons’ property. The Judge was satisfied that Ms Mitchell had knowledge of the existence and effect of that protection order. In making that finding the Judge referred to the previous High Court and Court of Appeal decisions concerning Ms Mitchell’s past breaches of the order. He was also satisfied that
Ms Mitchell did not have the consent of the protected persons to enter the property. Accordingly the charge was proven.
[7] As to the burglary charge, the Judge was satisfied the yard at the residential property was an enclosed yard for the purpose of the definition of “building” under s 231(2). He was also satisfied Ms Mitchell did not have the authority of the occupiers of the land to be in the enclosed yard. The main disputed ingredient of the burglary charge was intent to commit an imprisonable offence in the building. The Judge noted he would have to infer intent to the required high standard of proof from the surrounding circumstances. The Judge relied on the following circumstances in reaching the finding that Ms Mitchell intended to commit an imprisonable offence in the building:
(a)Entry was obtained surreptitiously late at night.
(b)There was no attempt to knock on the door or otherwise announce her presence at the address.
(c)The CCTV footage showed Ms Mitchell walking around in the backyard area, stooping to open lower doors in the freestanding barbecue and then climbing brick stairs to the two rear sliding doors of the property and attempting to pull open the sliding door. The footage then showed her climbing onto a barred wooden gate before departing the address.
(d)The police dog at the scene immediately afterwards followed a scent along the road to a short distance where Ms Mitchell was apprehended crouching down in another house’s front yard.
(e)Ms Mitchell had earlier convictions for breaches of protection orders.
[8] From those circumstances the Judge inferred Ms Mitchell had intent to commit an imprisonable offence, either to annoy, intimate or threaten the occupants, to damage
their property or to assault the male protected person. The Judge concluded the burglary charge was proven beyond reasonable doubt.
[9] On 21 August Ms Mitchell appeared for sentencing before the Judge. He considered the psychiatric reports, Ms Mitchell’s history of ignoring previous judicial warnings for offending against the same victims, and the victim impact statements. The Judge concluded a term of imprisonment close to the maximum penalty for the offence should be imposed.3 The Judge set a starting point of two years, nine months’ imprisonment. There were no discounts available for guilty plea or remorse. Ms Mitchell was accordingly sentenced to two years, nine months’ imprisonment.
Approach to appeal
[10] An appeal against conviction in a Judge-alone trial is governed by s 232(2)(b) of the Criminal Procedure Act 2011. The Supreme Court recently re-examined the approach to assessment of evidence for conviction appeals in Sena v New Zealand Police.4 The Court held that appeals in such cases should proceed by way of rehearing in accordance with the well-established principles canvassed in Austin, Nichols & Co Ltd v Stitchting Lodestar.5
[11] An appeal against sentence proceeds under s 244 of the Criminal Procedure Act and is an appeal against discretion. The Court must allow an appeal if it is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.6 The focus is on the end sentence and whether that was in the available range, rather than the process by which it was reached.7
3 Sentencing decision, above n 2, at [11].
4 Sena v New Zealand Police [2019] NZSC 55 at [36]–[40].
5 At [32]; and Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
6 Criminal Procedure Act 2011, s 250.
7 See Ripia v R [2011] NZCA 101 at [15]; B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].
Appeal against conviction
Protection order charge
[12] For a breach of protection order charge the prosecution only needs to prove a contravention of the order and knowledge of the order by the defendant. The onus then switches to the defendant to prove the existence of a reasonable excuse on the balance of probabilities.8
[13] Mr Tennet argues there was no breach as the property was not occupied by the protected person as they were away on holiday.9 Under s 19(2)(c) of the Domestic Violence Act 1995 a standard condition of any protection order is the respondent must not “without the person’s express consent, enter or remain on any land or building occupied by any protected person”. The issue here is the meaning of “occupied by any protected person”. Does that phrase require the protected person to be present in the premises at the time of the alleged contravention? Or does it extend to places of occupation in a broader sense, not requiring physical presence at that time?
[14] The meaning of an enactment must be ascertained from its text and in the light of its purpose.10 It seems to me that the answer to the question concerning the meaning of “occupied” is ascertained by considering the surrounding provisions in light of the overall purpose. Section 19(2) of the Domestic Violence Act 1995 provides (emphasis added):
(2) Without limiting subsection (1), but subject to section 20, it is a condition of every protection order that at any time other than when the protected person and the respondent are, with the express consent of the protected person, living in the same dwellinghouse, the respondent must not,—
…
(c)without the protected person’s express consent, enter or remain on any land or building occupied by the protected person; or
(d)where the protected person is present on any land or building,
8 Hargrave v Police (1998) 17 FRNZ 124 (HC); and A v Police [1999] 2 NZLR 501 (HC), confirmed in R v Easton [2007] NZFLR 70 (CA).
9 Submissions at [3.6].
10 Interpretation Act 1999, s 5(1).
enter or remain on that land or building in circumstances that constitute a trespass; or
…
[15] Subsections (c) and (d) distinguish between presence at any land or building, and the occupation of it. Occupation accordingly appears to have a different meaning from presence. Given that, the word “occupied” would appear to capture places that are occupied in the broader sense. Moreover the sub-paragraphs of s 19(2) involve a comprehensive series of conditions which are plainly designed to be protective in nature. The Act aims to recognise that that domestic violence, in all its forms, is unacceptable behaviour and to ensure that there is effective legal protection for the victims of domestic violence.11 Section 19(2)(c) aims to protect the victim’s home, or habitual residence, regardless of whether the victim is actually at home at the time of entry by the respondent. That protection recognises the sanctity of the home, and acknowledges that invasion of a person’s home can be distressing for a victim of family violence, even if they were not present in the home at the time. This is the meaning given to the section by the District Court in Police v Gregg.12 The defendant in that case had resided in the protected person’s residence while she had been on two week holiday in Australia. Judge Abbott considered entry onto the address during that time constituted a breach of s 19(2)(c).
[16] Mr Tennet argued that the housesitting arrangements meant that the address was not occupied by the protected persons even in the broader sense, but I do not accept that as the property remained their home. For these reasons I agree with the District Court Judge that Ms Mitchell’s entry onto the address on 28 June was in breach of the protection order.
[17] Mr Tennet further submits there was a requirement that the appellant knew the terms of the order. I do not accept that. The position is that knowledge of a protection order can be deemed as knowledge of its terms.13 The District Court Judge concluded
11 Domestic Violence Act 1995, s 5(1).
12 Police v Gregg [2006] 26 FRNZ 16 (DC). [18] The case contains useful discussion on the development of s 19 at [25]–[38].
13 Walker v Police HC Auckland CRI-2004-404-362, 17 August 2005 at [34]; Alofaki v Police HC Whangarei CRI-2006-488-43, 19 March 2007; and Keung v Police HC Christchurch CRI-2009- 409-94, 5 November 2009.
Ms Mitchell had knowledge on both the existence and effect of the protection order based on previous High Court and Court of Appeal decisions produced in evidence recording previous breaches of the order. Those decisions recorded that Ms Mitchell had knowledge of the order. I see no error in the assessment of that evidence.
[18] Next, Mr Tennet argues the Judge failed to adequately consider the existence of a reasonable excuse. As previously noted, the onus is on the defendant to prove the existence of a reasonable excuse on the balance of probabilities. A reasonable excuse is that which the ordinary New Zealander would regard as reasonable in the circumstances — the circumstances including the need for protection which has given rise to the order, the order and its terms and the inherent vulnerability of the protected person to injury including psychological abuse.14
[19] Mr Tennet submits there was a reasonable excuse here: that Ms Mitchell had gone to the house to visit the cats. He argues that excuse was reasonable in circumstances where Ms Mitchell knew the protected persons were away. In light of Ms Mitchell’s extensive history of breaching the protection orders and causing the protected persons distress, I do not consider there is substance to the argument that breaching the order to visit the cats was reasonable.
[20] I am satisfied each element of the charge can be proven beyond reasonable doubt and there was no miscarriage of justice.
Burglary charge
[21]Section 231 of the Crimes Act provides:
(1)Every one commits burglary and is liable to imprisonment for a term not exceeding 10 years who—
(a)enters any building or ship, or part of a building or ship, without authority and with intent to commit an imprisonable offence in the building or ship; or
(b)having entered any building or ship, remains in it without authority and with intent to commit an imprisonable offence in the building or ship.
14 A v Police [1999] 2 NZLR 501 at 506; confirmed in R v Easton [2007] NZFLR 70 (CA).
…
[22] The appellant submits the Judge was wrong to find the mens rea element of the offence was proven beyond reasonable doubt – that is, whether Ms Mitchell had intent to commit an imprisonable offence in the building. Mr Tennet challenges a number of the inferences drawn by the Judge. His submissions can be summarised as follows:
(a)The Judge was wrong to infer Ms Mitchell had intent to commit an offence by the fact that, soon after entering the property, she was found a short distance away hiding in a neighbour’s front yard. That activity could be explained by regret having entered the property or her fear of police officers.
(b)The previous convictions for previous breaches of the same protection order were different as the majority of the breaches were for contact by phone or text and not physical contact. The Judge was therefore wrong to infer the offence Ms Mitchell intended to commit was to damage property, intimidate or threaten the occupants or assault the male protected person.
(c)The Judge could not infer intent to commit an imprisonable offence from viewing the grainy CCTV footage.
[23] I do not accept these arguments. The Judge was entitled to conclude that Ms Mitchell’s fleeing the scene was an indication of guilt.15 While that guilt could have been related to the breach of protection order, I consider that Ms Mitchell’s swift departure from the scene and subsequent attempted concealment from Police, while by no means conclusive, was at least relevant to the assessment of the circumstances in inferring intent to commit an imprisonable offence. Mr Tennet makes reference to the need for a flight direction to be given if this had been a jury trial, but as Mr Burston for the Crown points out, the flight direction is given to ensure juries do not engage in impermissible reasoning. The Judge was able to control the appropriateness of his reasoning on this issue.
15 See R v Luczynski [2003] 2 NZLR 860 (HC); and Penniket v R [2016] NZCA 154.
[24] Ms Mitchell’s earlier convictions for similar offending were relevant. They can be classified as propensity evidence. Ms Mitchell had committed previous offences in the past against the victims in breach of the protection order. Those offences included contravening a protection order, threatening to kill or do grievous bodily harm, intentional damage and common assault. The Judge also had evidence before him in the form of a Court of Appeal judgment detailing Ms Mitchell’s wilful damage of the victims’ property in December 2012 where she smashed most of the accessible windows in the house with a tyre iron, smashed two of the outside lights on the garage, and hit the letterbox with the tyre iron.16 That evidenced a propensity on the part of Ms Mitchell to commit imprisonable offences against the victims. While the majority of Ms Mitchell’s previous breaches had been for remote contact such as sending threatening letters or emails, she was present on the victims’ property on this occasion. Her history of committing physical offences at the victims’ address was relevant in discerning a pattern of behaviour.
[25] As to Mr Tennet’s point about the CCTV footage, the Judge noted he observed from the footage Ms Mitchell climbing brick stairs to the two rear sliding doors of the property and attempting to pull open the sliding door. She could not gain entry as the door was locked. I consider that evidenced an intent to enter the house. Ms Mitchell was on the property late at night, without making her presence known to any possible occupants.
[26] It would also be relevant to consider Ms Mitchell’s explanation for her conduct, which was that she was present to see the cats. Given the other circumstances this explanation is not plausible. The Judge was entitled to infer intent to cause an imprisonable offence inside the building. Given all the circumstances I agree with the Judge’s conclusion that the element of intent to commit an imprisonable offence was proven beyond reasonable doubt.
[27] Mr Tennent makes one final point regarding the Judge’s assessment of the evidence. He notes the Judge had viewed the footage in his chambers after it had been played in Court. He argues this is a violation of Ms Mitchell’s right to be present at
16 Mitchell v R [2013] NZCA 583.
trial and to present a defence.17 As Mr Burston points out, there is no evidence that the Judge played the CCTV footage again in his chambers. But even if he had, I do not consider that would amount to a breach of Ms Mitchell’s right to be present at trial and to present a defence. Ms Mitchell was present when the CCTV footage was played at the trial. She made submissions in respect of that footage at the trial. There was no impropriety in the Judge viewing the footage again in his chambers any more than reading the notes of evidence again. I regard it as entirely orthodox to do so.
[28] I am not satisfied the Judge erred in his assessment of the evidence or that a miscarriage of justice has occurred. I recommend dismissing the conviction appeal.
Appeal against sentence
[29] Mr Tennet submits the starting point of two years, nine months’ imprisonment was too high and too close to the maximum penalty for breach of a protection order. He argues a lower starting point was justified as Ms Mitchell knew that the protected persons were away and her culpability was therefore lower. Mr Tennet also argues the Judge ought to have given a discount for the factors outlined in the s 38 report.18
[30] Mr Burston submits the starting point is within the available range, and makes reference to sentencing decisions of the High Court and Court of Appeal for Ms Mitchell’s past convictions for similar offending. Those decisions can be summarised as follows:
(a)Mitchell v R [2013] NZCA 583: Ms Mitchell pleaded guilty to one charge of intentional damage (maximum penalty 10 years’ imprisonment) and breach of a protection order. Ms Mitchell had phoned the victim and left two abusive voice messages, giving rise to breach of the protection order. At 11.27 pm she went to the victim’s address where the victim, his partner and three visitors were present. She smashed most of the accessible windows with the tyre iron, smashed two of the outside lights on the garage, smashed a large glass
17 New Zealand Bill of Rights Act 1990, s 25(e).
18 Criminal Procedure (Mentally Impaired Persons) Act 2003.
panel on the front door and entered the house through the broken glass. She stood in the hallway, yelling at the victims for a while. She eventually left, hitting the letterbox with the tyre iron on her way out. The District Court Judge adopted a starting point of 18 months’ imprisonment for breach of the order and 15 months for intentional damage. After considering totality, he fixed a total starting point of two and a half years’ imprisonment, uplifted by a further two months to recognise the offending was in breach of bail and to reflect the number of previous convictions. He also discounted two months to recognise Ms Mitchell’s mental health history. After guilty pleas the end sentence was two years, one months’ imprisonment. On appeal the Court of Appeal upheld the starting points and end sentence.
(b)Mitchell v R [2015] NZCA 442: Ms Mitchell was convicted of four charges of breaching a protection order for leaving four abusive and threatening voice messages on the victim’s phone. The District Court Judge adopted a starting point of eight months’ imprisonment recognising the offending was at the lower end of the scale for seriousness but recognised Ms Mitchell’s history of breaches of the protection order and sustained harassment of the protected person. The Judge deduced four months to reflect totality leaving an end sentence of four months’ imprisonment. The sentence was imposed cumulatively on the two year, one month term of imprisonment Ms Mitchell was serving at the time. The Court found the imposition of four months imprisonment on top of the sentence given is was an “available response to Ms Mitchell’s relentless and continuous behaviour”.
(c)Mitchell v R [2016] NZCA 299: Ms Mitchell sent 60 letters to the complainant while in prison. Five letters reached him and the remaining 55 were intercepted by Corrections. One of the letters contained threats to kill the victim. She was convicted of five charges of breach of a protection order, 55 charges of attempted breach and one charge of attempted threatening to kill. At the District Court the Judge
adopted a starting point of 18 months’ imprisonment for the breach charges. He uplifted by six months for the attempted breach and threatening to kill charges. That starting point was uplifted by six months to recognise her previous record of similar offending and to recognise the offending had occurred while she was in prison and discounted by two months to recognise her mental health issues and reduction by a further month to reflect totality. That resulted in an end sentence of two years, three months’ imprisonment. On appeal the Court of Appeal held the 18 month starting point was outside the available range and the culpability was closer to her 2015 offending than her 2013 offending, even bearing in mind the maximum penalty for breach of a protection order had increased from two to three years’ imprisonment.19 The appropriate starting point was 12 months. The Court found the uplift for the other offending was justified, as was the discount for mental health. The Court held the six month uplift for aggravating features involved an element of double counting and a three month uplift was appropriate to take into account her previous criminal history and that the offending occurred while she was in prison. A sentence of 19 months’ imprisonment imposed.
[31] The burglary charge would be regarded as the lead charge for the offending on this occasion. The Judge did not assess a starting point and then adjust it for personal aggravating circumstances — particularly an uplift referable to the repeated offending against the same victim which was clearly relevant here. But that is understandable.
In the 2013 decision the Court of Appeal said:20
[12] The modern approach to sentencing in reaching a starting point takes into account aggravating and mitigating features of the offending, but excludes mitigating and aggravating features relating to the offender.21 While this division will generally lead to previous convictions being considered after the fixing of the starting point as a personal aggravating factor, that is not a rule. The culpability of this offending could not be fully assessed without taking into account the background history of offending by Ms Mitchell against the two victims. To ignore the history of the relationship would be artificial, and prevent a proper analysis of the gravity of the offending. Section
19 At [44].
20 Mitchell v R, above n 16.
21 R v Taueki [2005] 3 NZLR 372 (CA) at [28] at [44].
8(a) of the Sentencing Act 2002 requires a sentencing court to carry out that assessment of culpability, and s 8(f) requires it to take into account the effect of the offending on the victims.
[32] In the present case it was open for the Judge to assess the starting point in a cumulative way, taking into account an uplift for the previous convictions against the same victims as well as an uplift for the breach of protection order.
[33] There is no tariff decision for breach of a protection order or for burglary. Decisions of the Court of Appeal offering guidance on sentencing for burglary are of little assistance given the particular nature of this offending. The current offending is inextricably linked to Ms Mitchell’s obsession with the victims and the culpability factors ordinarily present in burglary cases do not capture the kind of offending here.22 In my view the factors relevant to culpability are:
(a)The offending is the latest in a 13 year long campaign of intimidation and abuse of the victims.
(b)The burglary took place late at night when the occupants were more likely to be at home.
(c)The offences were committed while Ms Mitchell was on bail for other similar offending.
[34] The offending is not as serious as the offending in 2013 but more serious than the offending in 2015 and 2016. A starting point in the range of 12 to 18 months’ imprisonment was appropriate. Given the need to emphasise that this repeated offending will not be tolerated, an 18 month starting point was appropriate. The two year, nine month starting point in my view was outside the available range even taking into account the uplift factors, including particularly an uplift in response to the repeated and relentless offending. There was no actual entry into the home of the protected persons, and they were overseas at the time. A sentence higher than the 2013 offending is not justified.
22 For example R v Nguyen CA110/01, 2 July 2001.
[35] As to a discount for mental health related factors, I do not consider a discount was available here. A mental disorder falling short of insanity may mitigate culpability and moral fault and reduce the sentence.23 But courts are generally reluctant to offer a discount in the absence of evidence identifying the causal impact of the offender’s mental health on the offending.24 The Court of Appeal in Taueki observed:25
While mental illness or disorder of an offender may be a mitigating factor, this will not always be so: as this Court noted in R v Clarke CA225/98 3 September 1998, it is proper to treat any suggestion of diminished responsibility by reason of psychiatric or behavioural disorder with caution. Obsessiveness on the part of a former spouse or partner, who assaults and badly injures his or her former spouse or partner may in some cases be attributable to a mental illness or disorder. Whether this is the case will be a matter for expert evidence. If it is not, it cannot be a mitigating factor. Even if it is, it should not necessarily be seen as a mitigating factor. Indeed, an obsessive disorder manifesting in violence may require a deterrent and protective, rather than a mitigated response.
[36] The s 38 psychiatric report dated 9 August 2019 does not provide any evidence of a causative link between psychiatric illness and the offending. The report records that assessment “failed to identify any acute psychiatric issues” but noted Ms Mitchell’s background problems of post-traumatic stress disorder. The report writer observed “Ms Mitchell’s account [of her actions at the time of the offending] does not suggest that as a result of any mental health issues she was impaired in her capacity to reason as to the moral wrongfulness of her actions”.
[37] For these reasons the appeal against conviction is dismissed and the appeal against sentence is allowed. The sentence is quashed and replaced with a sentence of 18 months’ imprisonment.
[38] Given that the sentence I have substituted is a sentence of short duration, release conditions should be specified in accordance with s 18(1) of the Parole Act 2002. Having considered the PAC report and heard from counsel I adopt the conditions proposed, with the exception to the term preventing travel south of Taupo which is too restrictive. Eketahuna and Levin are a more appropriate limit. The conditions will apply for a period of six months from release and will be:
23 E(CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68].
24 See Nelson v R [2014] NZCA 121; and R v M [2008] NZCA 148.
25 R v Taueki, above n 21, at [45].
(a)To submit to electronic monitoring in the form of Global Positioning System (GPS) technology as directed by a Probation Officer in order to monitor your compliance with any condition(s) relating to your whereabouts.
(b)To comply with the requirements of electronic monitoring, and provide access to the approved residence to the Probation Officer and representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment as directed by the Probation Officer.
(c)Not to travel south of Eketahuna on the East Coast, or Levin on the West Coast without the prior approval of a Probation Officer.
(d)Not to associate with or contact the protected persons without the prior written approval of a Probation Officer.
(e)Attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer.
(f)To attend an assessment for drug and alcohol counselling as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
Cooke J
4
7
0