Mitchell v R
[2022] NZCA 159
•4 May 2022 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA191/2021 [2022] NZCA 159 |
| BETWEEN | KERRYN MITCHELL |
| AND | THE QUEEN |
| Hearing: | 30 March 2022 |
Court: | Gilbert, Woolford and Dunningham JJ |
Counsel: | C J Tennet for Appellant |
Judgment: | 4 May 2022 at 2 pm |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Woolford J)
Ms Kerryn Mitchell has 80 previous convictions for breaching or attempting to breach a protection order. These were accumulated between 2008 and 2019. On 25 March 2021, a jury found Ms Mitchell guilty of two further charges of breaching a protection order on 2 and 5 August 2019 and three further charges of attempting to breach a protection order on 26, 27 and 28 August 2019. On 31 March 2021, Judge I G Mill sentenced Ms Mitchell to two years and three months’ imprisonment.[1] She now appeals against both conviction and sentence.
Factual background
[1] R v Mitchell [2021] NZDC 5941 [Sentencing judgment].
On 24 April 2008, the Lower Hutt Family Court made a final protection order against Ms Mitchell. The person initially protected by the order was Mr L who had been in a relationship with Ms Mitchell. On 14 May 2010, the Court directed that the order also apply for the benefit of Mr L’s partner, Ms L. The order directed that Ms Mitchell was not to make contact with either protected person, whether by telephone, electronic message, correspondence or otherwise.
At the time of the offending, Ms Mitchell was in Arohata Prison.
At about 4.15 pm on Friday, 2 August 2019, Ms L was at their home address in Lower Hutt. She checked the mailbox and found five envelopes inside (together Charge 1). Each envelope was addressed to her partner at their home address. Ms L immediately recognised the handwriting on the envelopes as Ms Mitchell’s. Stamped on the front of each envelope was Arohata Prison, Private Bag 51-901, Tawa. Handwritten on the reverse side of each envelope was ‘Sender: Kerryn Mitchell’.
At about 5.00 pm on Monday, 5 August 2019, Ms L again checked the mailbox and found two more envelopes (together Charge 2). These were also addressed to her partner at their home address. Ms L again recognised the writing as Ms Mitchell’s. Handwritten on the reverse side of both envelopes was ‘Sender: Kerryn Mitchell’.
At some stage in August 2019, Ms Mitchell placed three envelopes into Arohata Prison’s internal mail system. The first envelope was intercepted by prison staff on 26 August 2019 (Charge 3); the second was intercepted on 27 August 2019 (Charge 4); and the third was intercepted on 28 August 2019 (Charge 5). All three envelopes were addressed to Mr L at their home address in Lower Hutt. On the reverse side of each envelope was written ‘Sender: Kerryn Mitchell’.
At trial, Ms L gave evidence. Mr L did not give evidence.
Issues on appeal
In comprehensive written submissions, Mr Tennet, counsel for Ms Mitchell, set out a number of diverse complaints about the trial process. We have sought to identify the issues as follows:
(a)Was there a valid protection order in force?
(b)Did Ms Mitchell know of its existence?
(c)What were its terms?
(d)Could there be a breach of the protection order if Mr L was incapacitated?
(e)Did Mr L consent to the contact with Ms Mitchell?
(f)Did Mr L have actual knowledge of the envelopes?
(g)Was the Judge right to set aside the witness summons for Mr L obtained by Ms Mitchell?
(h)Could Charges 3 – 5 amount in law to an attempt?
(i)Is the sentence manifestly excessive?
Discussion
Valid protection order
On Ms Mitchell’s instructions, counsel queries whether there was a valid protection order in force. A certified copy of the protection order was produced as an exhibit. There was no doubt that it is a valid order made by the Lower Hutt Family Court. It specifies two protected persons and has not been discharged. One of the conditions of the order is that Ms Mitchell must not make contact with any protected person (whether by telephone, electronic message, correspondence, or otherwise) except in certain exceptional circumstances, which are not applicable here.
Knowledge of protection order
Again, on Ms Mitchell’s instructions, counsel refers to her concerns about service of the protection order on her.
A corrections officer gave evidence of serving an envelope containing the protection order on Ms Mitchell on 24 July 2015 at 10.45 am in Secure Cell 8 at Arohata Prison. He produced a certificate of service which recorded the Family Court proceeding number and date of the protection order. He was, however, unable to confirm that the protection order produced in Court was the one he served on Ms Mitchell because the protection order was contained in an envelope and he did not look at the document inside the envelope. The proceeding number and date of the order recorded on the certificate of service was, however, the same as that on the protection order produced in Court.
Although the evidence of the corrections officer may not have conclusively established Ms Mitchell was served with the order, proof of knowledge does not require proof of service of the order. The Crown also relied on the fact that Ms Mitchell had been convicted numerous times of breaching the protection order and this included occasions where she had pleaded guilty to that charge. That the Crown intended to use the previous convictions in this way formed part of the rationale for adducing Ms Mitchell’s previous convictions as propensity evidence. From all the evidence, the jury could properly infer that Ms Mitchell was aware of the existence of the protection order.
Terms of order
Again, on Ms Mitchell’s instructions, counsel queries the terms of the order.
In Walker v Police, the Court held that if the appellant knew of the protection order he was deemed to know of the standard statutory conditions of that protection order.[2] In the present case, the non-contact condition is a standard statutory condition of the protection order which was imposed pursuant to ss 19 and 20 of the Domestic Violence Act 1995.
[2]Walker v Police HC Auckland CRI-2004-404-362, 17 August 2005 at [34].
The Domestic Violence Act has now been repealed and replaced by the Family Violence Act 2018. This, however, is of no moment. A protection order made under the Domestic Violence Act which is in force on the date of changeover continues to be in effect under the Family Violence Act.[3] Such an order is then subject to the standard conditions under ss 90 – 96 of the Family Violence Act in substitute for those under ss 19 and 20 of the Domestic Violence Act.[4] That includes the standard non-contact condition.
[3]Family Violence Act 2018, sch 1, cl 3.
[4]Schedule 1, cl 4.
It is therefore no defence for Ms Mitchell to say she is ignorant of these provisions or their effect. The law is clear. A protection order made in 2010 continues to be in force under the Family Violence Act and is subject to the standard conditions imposed by that Act. As Ms Mitchell had knowledge of the protection order, she is deemed to have knowledge of its terms and conditions.
Mr L’s capacity
Prior to trial, Ms Mitchell had sought and obtained a witness summons for Mr L, which was later set aside by Judge Mill. It was apparently through the process of serving the summons on Mr L that Ms Mitchell came to believe that Mr L’s mental state was such that he could not have been aware of the envelopes and the fact that they had come from her. Counsel queries whether, in those circumstances, an offence could have been committed.
Even though the offence was complete when Ms L picked up the envelopes out of their mailbox, as she was also a protected person and contact had thereby been made with her, the District Court appointed independent counsel, Ms N Levy QC, to review medical evidence about Mr L to be provided on a confidential basis by the Crown. Mr Levy subsequently filed a memorandum dated 3 March 2021 with the Court, in which she states:
Nothing in the health information appears to be relevant to the charges against the defendant, or probative.
I am not aware of the defendant pointing to anything which if known could be relevant in any particular way.
There is no public interest in the disclosure of the health information, nor would it assist the defendant to defend the charge.
Based on Ms Levy’s review of the medical evidence, we are satisfied there is nothing in this point. The Crown case did not rely on Mr L’s mental capacity and, accordingly, the medical evidence was just not relevant.
Consent to contact
Section 91(1) of the Family Violence Act provides that a protected person may suspend the standard no contact condition by giving consent to contact. However, s 94(1) further provides that no consent to contact under s 91 is valid unless in writing or in a digital communication (for example, in a text message, email, letter or standard form).
Counsel raises the suggestion of consent or agreement to contact by Mr L. He records Ms Mitchell’s question — “What did the protected person agree to or not?” because Mr L was not called as a witness by the Crown and she unsuccessfully sought to have him summonsed.
There was, however, no evidential foundation for any suggestion of consent to contact at trial. Ms Mitchell did not give or call evidence, but this meant there was no suggestion in the evidence that Mr L had consented to contact, specifically the sending of the envelopes by Ms Mitchell to him.
Any such consent must be in writing or in a digital communication and there is nothing to suggest that any such writing or communication had been given by Mr L to Ms Mitchell. Such a possibility simply cannot be entertained in the absence of any evidence to support it given the extensive history of breaches of the protection order by Ms Mitchell.
Knowledge of envelopes by Mr L
Counsel submits that the Judge misdirected the jury by directing them that Mr L was aware that the envelopes had been received. The Crown had not, however, called him to give evidence and this had led to a miscarriage of justice because any assertion by Ms L that her partner knew of them was hearsay and unreliable.
A formal statement had not been taken by the Police from Mr L. It was Ms L, not Mr L, who found the envelopes in their mailbox. The Crown was of the view that the offence was committed by the act of Ms Mitchell sending the envelopes to the protected persons’ address — being the home of both Mr and Ms L. Contact could have been made with either Mr or Ms L, or both, through this mechanism. The Crown’s view was that contact was immediately made with Ms L in breach of the protection order by Ms L picking up the envelopes out of their mailbox.
Ms L gave evidence at trial of finding the envelopes and passing them on to the Police. But before doing so she says she had shown them to her partner, who was also present when a police officer called by and picked them up.
The Crown’s view was that Mr L’s evidence was not required. Only Ms L could give evidence about finding the envelopes and giving them to the Police. Any evidence given by Mr L about knowledge of the envelopes would only supplement that of Ms L, who said she told him about them. The offence had, in essence, already been committed by Ms L finding the envelopes and Mr L’s knowledge of them was immaterial. The offence was already complete. We agree. In any event, although Ms L was cross-examined about the issue, she was adamant that she had showed the envelopes to her partner. In the absence of any evidence by or on behalf of Ms Mitchell, the Judge was not in error in telling the jury that Mr L had received the envelopes when they were addressed to him at their home address. They had arrived by post in their mailbox and had been found by his partner who was adamant she had shown them to him. She had no reason not to do so.
Witness summons set aside
Prior to trial, Ms Mitchell had sought and obtained a witness summons for Mr L. The Crown applied to have his summons set aside on the basis that: (a) he could not give any relevant evidence, and (b) the summons was being used oppressively for an improper purpose. At the beginning of the trial Judge Mill set the summons aside on the basis he could not give any relevant evidence.[5] He did not need to consider whether the summons was being used oppressively. Counsel for Ms Mitchell submits Judge Mill was wrong to set aside the witness summons for Mr L.
[5]R v Mitchell [2021] NZDC 4982.
It seems that Ms Mitchell had summonsed Mr L for a variety of reasons. First, Ms Mitchell wished to establish that Mr L was incapacitated to such an extent that he was unable to comprehend or understand any contact which may have been made by her. Second, to establish whether Mr L may in fact have consented to any contact made by her. Third, whether in the present case, his partner told him about finding the envelopes in their letterbox so as to have actual knowledge of contact. These propositions are all analysed above and found to be wanting. The Crown did not need to establish the mental capacity of Mr L or disprove consent in the absence of any cogent evidence or prove actual knowledge of the envelopes on the part of Mr L. His evidence was unnecessary.
A witness summons may be set aside if any evidence able to be given by the witness is irrelevant, oppressive, an abuse of process or covered by privilege.[6] In Orlov v New Zealand Law Society the Court held that unnecessary evidence is in the same category as inadmissible evidence for the purpose of deciding whether to set aside a summons.[7]
[6]Tuck v Registrar, District Court Auckland (1991) 3 PRNZ 459 (HC) at 462-463, citing Senior v Holdsworth, ex parte Independent Television News Ltd [1976] QB 23 (CA) at 43.
[7]Orlov v New Zealand Law Society (Auckland Branch) No 5 (2011) 21 PRNZ 52 (HC) at [27]; and at [24], citing R v Golightly [1974] 2 NZLR 297 (HC) at 302.
The prosecution decides how to run its case, and which witnesses to call. The offence of breaching a protection order by contacting the protected person was complete when Ms L picked up the envelopes out of the mailbox. The Crown did not need to establish knowledge on the part of Mr L, the original protected person. His evidence was unnecessary.
Ms Mitchell is therefore unable to establish that the Judge was wrong to set aside the witness summons. Although the Judge did not consider whether the summons was being used oppressively, we are of the view that the witness summons could have been set aside on this basis too, given the history of harassment by Ms Mitchell.
Charges 3 – 5: Attempt to breach protection order
Counsel submits that putting a letter out to be posted through the prison mail system cannot be an attempt to breach a protection order. However, in Mitchell v R, this Court found that Ms Mitchell’s actions in putting mail addressed to Mr L in the prison mail system was a proximate act that constituted an attempt to breach a protection order.[8] The Court rejected a submission that putting a letter in the prison mail system cannot constitute an attempt because of the checks in place to prevent mail from being sent out of the prison.
[8]Mitchell v R [2016] NZCA 299, [2016] NZFLR 487 at [17]–[22].
Counsel submits that it would not be re-litigating Mitchell to argue that the Department of Corrections might have learnt their lesson and improved their system substantially since the earlier decision: “Now the system is such that in no way could it be said that putting a letter out for posting would mean that it would be posted”.
The situation has, however, not significantly changed since the earlier decision. Ms Mitchell’s mail is still scrutinised to ensure that she is not making contact with either Mr or Ms L in breach of the protection order. In the present case, however, seven envelopes addressed by Ms Mitchell to Mr L still made it out of the prison mail system and were delivered to Mr and Ms L’s letterbox. It was obviously not factually impossible for the envelopes to be posted. In any event, factual impossibility is no defence to a charge of attempting to commit an offence. We are satisfied that putting a letter out to be posted through the prison mail system is sufficient to amount to an attempt.
Sentence
The maximum penalty for breaching a protection order is three years’ imprisonment.[9] Judge Mill took a starting point of two years and six months’ imprisonment, from which he deducted three months for the way in which Ms Mitchell had conducted herself at trial. There were no other discounts available, so the end sentence was one of two years and three months’ imprisonment.[10]
[9]Family Violence Act 2018, s 112(3).
[10]Sentencing judgment, above n 1, at [27]–[29].
Counsel submits:
(a)The starting point was manifestly excessive.
(b)The Judge was wrong to accept and cite from the Victim Impact Statement; and
(c)The Judge was wrong to reject the principles set out by the High Court in the earlier decision of Mitchell v New Zealand Police.[11]
[11]Mitchell v New Zealand Police [2019] NZHC 3264, [2019] NZFLR 532.
In setting the starting point, Judge Mill held that this case must fall to be considered a case where a penalty near to the maximum penalty should be imposed. Judge Mill referenced the totality of the offending, the occurrence of the offending while in prison awaiting sentence for similar offending, the numerous previous breaches and attempted breaches, the lack of remorse, the lack of an indication of stopping offending, and the considerable effect on the complainants.[12]
[12]Sentencing judgment, above n 1, at [26].
At the time of this offending, Ms Mitchell was in Arohata Prison awaiting sentence on two charges of breach of a protection order and one charge of burglary. She had been found guilty of the charges on 26 June 2019 and remanded in custody.[13] She was sentenced by Judge Tompkins on 21 August 2019 to two years and nine months’ imprisonment.[14]
[13]New Zealand Police v Mitchell [2019] NZDC 16222.
[14]New Zealand Police v Mitchell [2019] NZDC 19697.
The previous offences had been committed on 27 June 2018. At that time, Mr and Ms L were on holiday. At about 11.00pm, Ms Mitchell went to their home address, entered the backyard, and attempted to open two rear sliding doors. For this activity she was charged with both breach of a protection order and burglary. On sentencing Judge Tompkins adopted a starting point of two years and nine months’ imprisonment, which was also the end sentence.
On appeal to the High Court, Cooke J found that it was open to Judge Tompkins to assess the starting point on the charge of burglary taking into account an uplift for previous convictions against the same complainants, as well as an uplift for the breach of the protection order. Cooke J viewed the factors relevant to culpability as:[15]
(a)The offending was the latest in a 13-year long campaign of intimidation and abuse of the [complainants].
(b)The burglary took place late at night when the occupants were more likely to be home.
(c)The offences were committed while Ms Mitchell was on bail for similar offending.
[15]Mitchell v New Zealand Police, above n 12, at [33].
Cooke J then compared the 2018 offending with Ms Mitchell’s previous offending. It was not as serious as the offending in 2013, but more serious than the offending in 2015 and 2016. Cooke J held that a starting point in the range of 12 to 18 months’ imprisonment was appropriate and given the need to emphasise that the repeated offending would not be tolerated, an 18-month starting point was appropriate.[16] Cooke J allowed the sentence appeal and reduced Ms Mitchell’s sentence of imprisonment to 18 months.[17]
[16]At [34].
[17]At [37].
Ms Mitchell applied for leave for a second appeal against the judgment of Cooke J.[18] This Court declined leave saying that given the persistent and flagrant pattern of breaching the protection order the sentence of 18 months’ imprisonment representing half the maximum available for the breach of protection order charges and far less than the maximum penalty of 10 years’ imprisonment for burglary “must be regarded as lenient”.[19]
[18]Mitchell v R [2020] NZCA 96.
[19]At [28].
Here we agree with Judge Mill that s 8(d) of the Sentencing Act has a primary role to play in assessing the starting point — for offending that is near the most serious of cases of its type, a starting point close to the maximum must be adopted. In assessing whether a case is near the most serious of cases of its type, both Ms Mitchell’s prior sentences as well as the circumstances of the present offending, are important. Ms Mitchell committed these offences while in custody awaiting sentence for similar offending against the same complainants. This is a highly aggravating factor.
Apart from the 18-month sentence of imprisonment imposed (on appeal) in respect of offending in 2018 and 2019, Ms Mitchell received sentences of imprisonment of two months in December 2016, one year and seven months in July 2016, six months in December 2015, four months in March 2015, one year and six months in September 2013, four months in June 2010, three months in February 2010 and three months in November 2009. Ms Mitchell has also served sentences of imprisonment for criminal harassment.
Of some relevance is that the maximum sentence for breaching a protection order was increased by Parliament on 25 September 2013 from two years’ imprisonment to three years’ imprisonment. The sentence of one year and six months’ imprisonment imposed on Ms Mitchell for breach of a protection order in September 2013 was therefore at a time when the maximum penalty was only two years’ imprisonment. This was four years into “a 13-year long campaign of intimidation and abuse of the [complainants]” as it was described by Cooke J.
It is that history that leads us to conclude that Judge Mill was justified in giving primacy to s 8(d) when adopting a starting point close to the maximum for the offending. As noted by this Court in Anderson v R:[20]
Breaches of protection orders vary enormously in culpability and in degrees of threat and psychological or physical harm to the protected person. Each case hinges on its own facts.
(Citation omitted).
[20]Anderson v R [2016] NZCA 346 at [26].
Counsel submits that in assessing the degrees of threat and psychological or physical harm to Mr and Ms L, the Judge was wrong to accept the Victim Impact Statement. Counsel submits that it contained emotive and inadmissible material in that it refers to past events which, in effect, means that Ms L was asking the Court to sentence Ms Mitchell for past events.
The Crown acknowledges that Ms L’s opinion as to penalty — a wish to see her committed to psychiatric care — and opinions about the state of domestic violence in New Zealand were not relevant to the Court’s sentencing exercise, but submits that the remainder of the Victim Impact Statement was relevant and in accord with the purposes of a Victim Impact Statement.
We agree. Sentencing for a breach of a protection order can and should take into account prior instances of breaching the protection order. It is not a case of re‑sentencing the offender for past offences. Rather, it elevates the gravity of the present offending in that it shows that the offender has persistently failed to comply with a Court order. It also elevates the effect of the offending on the complainant as is apparent from Ms L’s Victim Impact Statement. While the present offending might appear to be a minor breach of the protection order, it is important for the Court to be informed of how the wider picture feeds into the effect that such offending has on the complainants. The offending left them “reeling” as one of the envelopes was dated the day after she had been found guilty of burglary and breaching the protection order. From Ms L’s perspective, the offending never stops. It will only stop when Ms Mitchell dies, as she herself said in a text to Mr L almost 10 years ago, on 23 October 2012: “When is this going to end cunt, when Im dead!”. The psychological impact has been devastating. Ms L’s Victim Impact Statement did not result in Judge Mill elevating the gravity of the offending inappropriately.
In dealing with Ms Mitchell in relation to her earlier offending in 2018 and 2019, Cooke J stated:[21]
I would encourage future proposals that involve not only Ms Mitchell’s personal commitment, but also more detailed measures that clearly control her ability to engage in future offending. At some point the cycle will need to be broken. If such a proposal was developed, and then satisfactorily implemented without further incident, an alternative to further imprisonment, (such as home detention) might be able to be considered by a sentencing Court.
[21]Mitchell v R [2020] NZHC 1181 at [24].
In sentencing Ms Mitchell, Judge Mill did not reject such a proposal out of hand. He characterised Cooke J’s comment as really a plea that another way may be better than further and longer terms of imprisonment. He then stated:[22]
I have to infer from that that there would need to be a clear expectation of rehabilitation and commitment by Ms Mitchell as to whether she would offend further.
[22]Sentencing judgment, above n 1, at [22].
This is not a rejection of Cooke J’s approach. But Ms Mitchell made no such commitment. She waived her right to a probation report, an alcohol and drug assessment, any community-based sentencing report and any personal family, whānau, community and cultural background report. The Department of Corrections suggested a number of post-release conditions, which were addressed to the issue of re‑offending, but these were rejected by Ms Mitchell.
With such a criminal history and the devastating effect of the offending on Mr and Ms L, Judge Mill was justified in imposing a sentence of imprisonment close to the maximum. Hopefully, one day an alternative approach can be adopted, but Ms Mitchell has to want to break the cycle of offending.
Result
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Wellington for Respondent
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