Mitchell v R
[2013] NZCA 583
•27 November 2013 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA657/2013 [2013] NZCA 583 |
| BETWEEN | KERRYN MITCHELL |
| AND | THE QUEEN |
| Hearing: | 11 November 2013 |
Court: | Wild, Asher and Dobson JJ |
Counsel: | C J Tennet for Appellant |
Judgment: | 27 November 2013 at 10 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
At 10.30 pm on 2 December 2012 the appellant, Kerryn Mitchell, telephoned the complainant leaving two abusive voice messages, swearing and blaming him for a protection order that had been in force against her for five years at that time. Later that night at about 11.27 pm, she went to the victim’s address at a suburban house, taking a tyre iron. In the house were the victim, his partner and three visiting friends. She walked around the house and smashed most of the accessible windows with the tyre iron, one in the laundry, three in the kitchen and two in the dining room. She then smashed two of the outside lights on the garage before moving to the front door. At the front door, she smashed a large glass panel and entered the house through the broken glass. She stood for a short time in the hallway, yelling for the victim in a threatening manner, swearing and shouting abuse at the occupants. When told by one of the victim’s friends that he was not at home, she walked out of the house. On the way out, she hit the letterbox with the tyre iron. She proceeded to sit down, drop the tyre iron and waited for the police to arrive.
She pleaded guilty to two counts, one of intentional damage under s 269(2)(a) of the Crimes Act 1961, and the other of breach of a protection order under ss 19(2)(c) and 49 of the Domestic Violence Act 1995. She had previously been discharged after argument on a count of aggravated burglary. She was sentenced by Judge Becroft in the District Court at Wellington on 10 September 2013 to two years and one month’s imprisonment.[1] He also ordered reparation of $2,863.41. In this appeal the Judge’s reasoning is criticised. It is argued that the decision is inconsistent with other cases, and it is submitted that the sentence is manifestly excessive.
The history leading to this appeal
[1]R v Mitchell DC Wellington CRI-2012-032-3561, 10 September 2013.
Ms Mitchell is 45 years old. She had been in a relationship with the victim which ended in approximately 2005. A protection order had initially been obtained on 24 April 2008, and in May 2010 was extended to protect the victim’s partner. Since then, and before this particular offending, there had been nine previous separate breaches of the protection order. There had been previous sentences of imprisonment, although none for more than three months. She had appeared in the District Court at Lower Hutt before Judge Mill on 2 July 2012 on a number of charges including three threatening to kill charges, a charge of recklessly and wastefully deploying police personnel, and two charges of breach of the protection order.[2] The Judge stated that he was tempted to send her to prison, but imposed an avowedly lenient sentence of four months’ community detention. He observed that, if she was back in the next few months, she would have to go to prison.
[2]Police v Mitchell DC Lower Hutt CRI-2012-032-1474, 2 July 2012.
This offending can be seen as the latest evocation of Ms Mitchell’s seven year obsession with the victims. Judge Becroft in his decision placed particular emphasis on the victim impact reports. We set out the Judge’s summary of the victim impact reports which captures the unusual and concerning nature of this repetitive offending:[3]
[10] Both these reports provide graphic testimony of the comprehensive and profound effects your ongoing behaviour has had on both of them. Your perpetual breaches of the protection order seem to have ruined their lives and they have been significantly affected. It would be impossible for me to do justice to each of their reports other than by repeating them, which I will not do.
[11] Suffice to say that your former partner, after your short relationship ended, and now with his current partner feels like a pawn, in his words, on a, “board waiting to be played by you in a game that has spiralled out of control.”
[12] The breaches of the protection order have been persistent. He feels as though you have stalked him for eight years. He only feels physically safe when you are in custody. From his point of view it seems as if he is never free from the threat or risk of contact from you. He has got to the point where he feels he has to live life like a hermit with his own partner in order to feel safe. He still feels unsafe and on this occasion feels he could have suffered injury if he had tried to confront you. He fears the day when you will be released from prison, because he is worried that you will come to his home again and cause damage.
[13] The victim’s partner has also written graphically how your behaviour impacts on every single facet of her day to day life, she says. She feels unsafe to open windows in the house, keeps her doors locked on all occasions and finds herself checking outside the front door before she goes outside.
[14] While sentencing today cannot compensate them for this loss, they say they have spent approximately $38,000 including lawyer’s fees, property damage and installing home security systems because of your behaviour. From her point of view you stalk them, not only in the community, but through the Court system.
[3] R v Mitchell, above n 1.
The Judge noted the absence of guideline judgments. He fixed a starting point for the intentional damage count of 15 months. He took into account the breaches in the context of “ongoing repetitive, comprehensive previous breaches of the same protection order against the same person”.[4] He observed that “it would be hard to think of a breach that was more serious...”.[5] He considered that for the breach of the protection order there should be a starting point of 18 months’ imprisonment. Applying the totality principle, he fixed a starting point of two and a half years’ imprisonment. He uplifted that sentence by a further two months, because of the offending being in breach of bail terms imposed for breaching the same protection order, and because of a significant number of previous convictions. This resulted in a starting point of two years and eight months’ imprisonment imposed on the intentional damage count, with a concurrent 18 month sentence on the breach of protection order count.
[4]At [24].
[5]At [24].
Ms Mitchell waived her right to a pre-sentence report. However, the probation service had prepared a short memorandum and a psychological report had been prepared under s 38(1)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. While there was no personality disorder diagnosed, Ms Mitchell displayed elements of post-traumatic stress syndrome and the Judge was prepared to reduce the sentence by two months to two years and six months’ imprisonment on that account. The guilty plea had been on the morning of the trial, but there had been a successful challenge to one of the counts, so a 15 per cent discount applied, which was rounded up to a five month deduction. The end sentence was two years and one month’s imprisonment. Mr Tennet, for Ms Mitchell, has not challenged these discounts and has focussed on the length of the starting point and uplift of two months.
Analysis
The maximum penalty for the intentional damage count is seven years’ imprisonment, and for the protection order count, two years’ imprisonment.[6] In relation to the intentional damage the police had originally laid the charge under the Summary Offences Act 1981, where it would have carried a three month prison sentence, but when the matter went to trial the police laid the indictment under the Crimes Act 1961. Judge Becroft regarded this as justified,[7] and so do we.
[6]On 25 September 2013, s 11(1) of the Domestic Violence Amendment Act 2013 amended the Domestic Violence Act 1995 so that the maximum penalty for breach of a protection order is now three years imprisonment. That new maximum term does not apply to this appeal.
[7]At [21].
Mr Tennet, for Ms Mitchell, argued that the Judge’s breakdown of the starting points could not be justified. He submitted that there was no actual physical violence on the night, and the damage, while significant, was not at a high level.
Counsel were unable to refer us to any cases where the facts were truly comparable to this case. Most cases to which we were referred were for breaches of a protection order with actual physical violence, or were cases where there had been a sentence imposed on an intentional damage count where that count was not the lead count and the sentence was concurrent.
We list the factors relevant to culpability overall as follows:
(a)The actions were premeditated. Ms Mitchell had armed herself with a tyre iron, and made lead-up threatening phone calls.
(b)There was extreme and costly damage to domestic property.
(c)The victims were gravely affected, as she intended.
(d)This offending is the latest culmination of a seven year campaign of intimidation and breaches of court orders.
It can be observed that the Judge in his breakdown of the starting point chose a starting point at 18 months’ imprisonment that was close to the maximum for the breach of the protection order. In doing so, he deliberately took into account Ms Mitchell’s past record.
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.[8] 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 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.
[8]R v Taueki [2005] 3 NZLR 372 (CA) at [28] at [44].
Ms Mitchell’s conduct over the five and a half years in which the protection order has been in place has been extraordinary. She has undertaken a deliberately imposed sequence of intimidatory events, inflicted on the victims with complete disregard for repeatedly imposed court strictures and punishments, and the most explicit warning at her last appearance. While recognising that her actions did not involve extreme personal violence, we accept Judge Becroft’s assessment that on an overview, “it would be hard to think of a breach that was more serious than this”.[9] If, of course, there had been physical violence, that would have been the subject of particular further charges.
[9]At [24].
We start with our assessment of the culpability of the breach of protection order. We consider that a starting point of 18 months’ imprisonment was warranted, despite its proximity to the maximum term of two years. We take that view because this was a wilful and terrorising breach of the protection order, made the more serious because it was the latest in a continuing pattern, and committed in the face of a stern judicial warning by Judge Mill that Ms Mitchell’s offending against the victims had reached a serious head.[10] This was, in terms of s 8(d) of the Sentencing Act, a most serious case of its type, warranting that proximity.
[10]Police v Mitchell, above n 2, at [1], [3], [5] and [17].
The intentional damage count was a serious example of its type. The approach to the house was premeditated, Ms Mitchell arming herself with a tyre iron. She appears to have smashed numerous panes of glass within her reach with the deliberate intention of scaring those inside. She actually went inside, having smashed through the glass beside the door, behaved in an extremely intimidatory fashion, and then smashed the letterbox as she went out. The occupants were terrified, as she must be taken to have intended them to be. Recognising that there was overlap between these factors and the assessment of the starting point on the breach of the protection order count, we consider the end starting point reached of 15 months, against the maximum sentence of seven years’ imprisonment, to be appropriate.
Rounding down the two starting points chosen by the Judge, two and a half years as a starting point was stern, but not disproportionate taking into account the totality principle.[11]
[11]Sentencing Act 2002, s 85.
We are also of the view that the two month uplift for the offending, being for breach of bail imposed in relation to the protection order, and for Ms Mitchell’s previous record, was justified. There was no double counting involved, as Ms Mitchell has a significant previous record of offending, including violent offending for which she has been imprisoned, which did not relate to this protection order or these victims. Indeed, her previous record runs to 14 pages with 40 previous convictions of assaults,[12] including assault with weapons, assaults of the police and assault with intent to injure, nine of wilful damage, and convictions for threatening to kill. Even excluding her offending against these victims, it is a record of violence and defiance of authority. Her most unfortunate personal circumstances have undoubtedly been recognised on many occasions by sentencing judges, and despite this she continues to offend. In these circumstances, recognising also the flagrant breach of bail, an uplift was warranted and indeed two months was modest.
[12]There are actually 38 for “assault” of various kinds, and two for injuring with intent to injure.
We also observe that the two month discount for psychiatric factors was generous, given that there is no clear diagnosis of a psychiatric illness. The Judge did not make a reduction for reparation, but although orders were made, there is nothing to indicate that reparation will in fact be paid and the Judge did not err in his consideration of this issue.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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