Mudraninec v Police
[2024] NZHC 2299
•15 August 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-156
[2024] NZHC 2299
BETWEEN VIT MUDRANINEC
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 August 2024 Counsel:
D Lotz for Appellant
C L T-W-Fiennes for Respondent
Judgment:
15 August 2024
JUDGMENT OF OSBORNE J
[1]Vit Mudraninec appeals a sentence imposed by Judge M J Callaghan.1
Background
[2]Protection orders are made under the Family Violence Act 2018 (Act).
[3]The Act’s purpose is to stop and prevent family violence by:2
(a)recognising that family violence, in all its forms, is unacceptable; and
(b)stopping and preventing perpetrators from inflicting family violence; and
1 Police v Mudraninec [2024] NZDC 14078.
2 Family Violence Act 2018 [Act], s 3(1).
MUDRANINEC v NEW ZEALAND POLICE [2024] NZHC 2299 [15 August 2024]
(c)keeping victims … safe from family violence.
[4] Principles that guide the achievement of those purposes include that perpetrators of family violence should face effective responses to, and sanctions for, family violence and should have access to, and in some cases be required to engage with, services to help them stop and prevent their family violence.3
[5] “Family members”, under the Act, in relation to a person, includes any person who has been in a de facto relationship with that person. In October 2023, the Family Court made against Mr Mudraninec a temporary protection order in favour of a former partner (ex-partner). The standard no-contact condition attached to the protection order.4 The Temporary Protection Order was made final on 15 November 2023.
[6] On 8 April 2024, while on bail in relation to earlier charges, Mr Mudraninec sent an unsolicited text message to his ex-partner, recording: “Your nickname shouldn’t be yummy but a wretch”; and “Unhappy and sad person who needs to work as a slut” (the “second offence”). The offending was clearly offending of psychological abuse.
The charge
[7] Mr Mudraninec was charged with making unauthorised contact with his ex- partner.5
[8] Mr Mudraninec pleaded guilty to the second offence and admitted the facts as I have summarised them. His ex-partner provided a victim impact statement in which she recorded:
I am really scared of Vit and every time I get calls and text messages from him I get panic attacks. I am on medication to help me with my anxiety because of his behaviour. I got a Protection Order to help me feel safe but I feel that Vit doesn’t abide by it.
3 The Act, above n 2, s 4(h) and (i).
4 Section 90(b).
5 An offence under ss 90(b) and 112(1)(a) of the Act: maximum penalty three years’ imprisonment.
The sentence
[9] The Judge sentenced Mr Mudraninec to 40 hours of community work and to nine months of supervision with a special condition that he complete a Stopping Violence Programme to the satisfaction of the probation officer.
[10]In explaining the sentence he was imposing, the Judge recorded:
I have to assess whether or not the Judge (on 1 May 2024) would have ordered something else bearing in mind that there was another charge. I am satisfied that the Judge would have at least considered and probably done something else rather than just a reparation order so I am going to deal with you this way.
[11]There then followed the sentence of community work and supervision.
[12] The Judge identified Mr Mudraninec is 44 years of age. He noted Mr Mudraninec had a previous conviction (1 May 2024) for the same offence in relation to the same victim. On that occasion, Mr Mudraninec had been convicted and ordered to pay reparation to the ex-partner of $2,500. I note the reparation had been paid by the date of the subsequent appearance.
[13] Ms Fiennes has provided a summary of facts in relation to the earlier offence, the offending which Mr Mudraninec admitted on that occasion related back to November 2023 involved his creating multiple fake Facebook profile accounts to post defamatory and derogatory comments about the ex-partner in multiple Christchurch Community Groups, in other words, psychological abuse. Allegations in the posts included that the ex-partner was illegally working in New Zealand, had stolen personal items and was scamming people. Further, that the ex-partner was said to be using men and spreading chlamydia. Mr Mudraninec admitted that the constant online abuse had caused the ex-partner considerable stress and nightmares.
Appellant’s submissions
[14] Mr Mudraninec does not appeal against the community work sentence — he has completed it.
[15] Mr Mudraninec appeals against the sentence of supervision. Mr Lotz says the basis of the appeal is that the Judge re-sentenced Mr Mudraninec as if he were the original sentencing judge and thereby imposed a combination of sentences that was manifestly excessive. That was the submission as contained in Mr Lotz’s written submissions. On reflection, and having had the benefit of the Police submissions, Mr Lotz at this hearing recognised that although the Judge had approached the description of the relevance of the earlier sentence in a somewhat-unusual way, the general approach to sentencing on the subsequent charge was appropriate.
[16]Mr Lotz submitted in relation to the sentence itself:
(a)the offending was at the lower end of moderately serious (that is, unauthorised contact by text message in the context of a relationship ending);
(b)the guilty plea was entered at the first opportunity;
(c)the effect of the messages on the victim was nevertheless recognised;
(d)the closeness of time of the present offending to the previous offending was an aggravating feature of the offending; and
(e)Mr Mudraninec had already completed the Stopping Violence course as part of the conditions of the temporary protection order, a matter which was made known to the Judge at the time of sentencing.
[17] Mr Lotz submitted the Judge had not adequately addressed whether the combination of community work and supervision (with a special condition) was appropriate. Mr Lotz acknowledged the difficulty of recording all matters in a busy List Court, but referred to the decision of this Court in Porter v Police.6 There Woodhouse J identified the statutory provisions which the District Court Judge in that
6 Porter v Police HC Tauranga CRI-2008-470-16, 9 July 2008.
case did not appear to have addressed. In particular, Mr Lotz invoked this discussion from Porter:
[8] There is no indication from the sentencing notes that the learned Judge addressed the special statutory provisions that apply to sentences of supervision and to the combination of a sentence of community work with supervision. I readily acknowledge that in the time available in a List Court it is not possible to record all matters that may have been taken into account, but from the information available to me it does appear that these matters may not have been addressed. The relevant provisions are as follows:
20 Guidance on use of combinations of sentences
(1)A court may impose a particular combination of sentences on an offender only if satisfied that any of the sentences making up the combination, if imposed alone or in any less restrictive combination, would not be in accordance with—
(a)the purpose or purposes for which sentence is imposed; or
(b)the application of the principles in section 8 to the particular case.
(2)A court may only combine a sentence of community work with a sentence of supervision or intensive supervision if satisfied that—
(a)a sentence of community work is appropriate; but
(b)the offender requires the imposition of standard conditions or any of the special conditions available under a sentence of supervision or intensive supervision to address the causes of his or her offending.
46 Guidance on use of sentence of supervision
A court may impose a sentence of supervision only if the court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
50 Special conditions related to programme
A court may impose any special condition or conditions related to a programme if the court is satisfied that—
(a)there is a significant risk of further offending by the offender; and
(b)standard conditions alone would not adequately reduce that risk; and
(c)the offender requires a programme to reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
[18] In Porter, the District Court sentence was one of 80 hours community work and nine months’ supervision (with special conditions including as to counselling for anger management) on a charge of common assault.
[19] Mr Lotz identified the appeal in Porter was allowed with the sentence of supervision cancelled.
[20] Mr Lotz referred also to observations made by this Court in Creegan v Police.7 It was there observed, by reference to earlier authority, that supervision should be imposed in addition to community work only where it is necessary for rehabilitation and to reduce the prospect of further offending.8
[21] Mr Lotz submitted in this case the fact Mr Mudraninec had already completed a Stopping Violence course weighed against the need for supervision. The extent of restriction imposed by the supervision sentence was punitive rather than rehabilitative. Mr Lotz recorded that Mr Mudraninec, as a self-employed person, cannot travel internationally to visit his family and friends in his own country due to the conditions of supervision.
[22] He submitted the sentence of supervision ought not to have been imposed in combination with the sentence of community work.
Police submissions
[23] For the Police, Ms Fiennes submitted the sentence appealed was not manifestly excessive.
7 Creegan v Police [2015] NZHC 1513.
8 At [28].
[24]In relation to particular points she submitted:
(a)the Judge, in sentencing Mr Mudraninec for what was a second offence correctly had regard to the first conviction, particularly in the context of the significance of family violence;
(b)as identified by this Court in Jackson v New Zealand Police, offending of this nature, while appearing less severe compared to other offending, may be significant in the context of the history between a defendant and a particular victim.9 This is why previous breaches of the protection order are of integral importance to the assessment of the gravity of offending;
(c)the seriousness of a breach of a protection order is reflected in Parliament’s previous decision to increase the maximum penalty from two years’ imprisonment to three years’ imprisonment;10
(d)aggravating features of Mr Mudraninec’s offending were:
(i)the second offence, in breach of the protection order, occurred while Mr Mudraninec was on bail in relation to the earlier breach;
(ii)the offending involved family violence (albeit a matter implicit in the charge);
(iii)the ex-partner suffered significant harm, with continued breaches retraumatising her; and
(iv)the victim in this case is both specifically vulnerable and vulnerable by virtue of the protection order.
9 Jackson v New Zealand Police [2019] NZHC 281 at [42].
10 See Morris-Stewart v New Zealand Police [2016] NZHC 1030 at [14]–[15] — it having been recognised that repeated breaches of protection orders call for a condign sentencing response.
(e)although the Judge did not address the relevant statutory provisions (as referred to in Porter) and did not outline how this was a significant risk of further offending, it is clear the Judge considered there was a risk of reoffending that justified the completion of a Stopping Violence course;
(f)having regard to the occurrence of earlier family violence to justify the making of a protection order and then the breaches of that protection order, it would appear steps to date have been insufficient to prevent Mr Mudraninec reoffending — there was clearly a significant risk of further offending;
(g)in the absence of information before the Judge to indicate the respondent had already completed a Stopping Violence course, it was open to the Judge to conclude such a course was required to reduce the likelihood of further offending. I note that this particular submission was made in Ms Fiennes’ written submissions and that Mr Lotz has since clarified the information the Stopping Violence course had been completed was communicated to the Judge; and
(h)the Judge’s observation that any course previously undertaken by Mr Mudraninec seemed not to have worked clearly indicated the supervision was imposed for rehabilitative purposes and was not punitive.
Discussion
[25] Mr Mudraninec, through repeated acts of family violence, presents a demonstrable risk to the wellbeing of his ex-partner. Through an apparent lack of control or a lack of understanding of the nature of what he is doing (or both), he has repeatedly subjected his ex-partner to psychological abuse. The purposes of the Act include preventing a person such as Mr Mudraninec from inflicting such violence and of keeping his victims safe from such violence. That is the important statutory context in which the Judge came to sentence Mr Mudraninec for his second period of criminal activity. The Judge’s consideration of how the previous Judge might have sentenced Mr Mudraninec on the earlier charge, if aware of the pending second charge, was a
distracting enquiry. But what the Judge was required to do, in accordance with sentencing principles, was to have regard to the conviction on the earlier charge in assessing the gravity of the present charge. Once the sentencing process is approached in that way, the appropriateness of the Judge’s ultimate sentence is clear.
[26] Mr Mudraninec’s behaviour in April 2024, had it stood alone, might reasonably have been viewed as (Mr Lotz submitted) towards the lower end of moderately serious. But the gravity of psychological violence, such as Mr Mudraninec perpetrates, has to be assessed by reference to a defendant’s preceding conduct and his pattern of conduct. As the principles that apply under the Act involve both the imposition of effective responses to and sanctions for family violence and in some cases requirements for perpetrators to engage with services to help them, a combination of sentences may be particularly appropriate in this area of criminal law. The Judge was clearly imposing a sentence of community work as a punishment. It is equally clear the Judge was imposing the sentence of supervision (in line with the requirements of s 46 Sentencing Act 2002) in order to reduce the likelihood of further offending by Mr Mudraninec through rehabilitation. I recognise there is a significantly restrictive element to the sentence of supervision — whether it is of greater significance to Mr Mudraninec is not something he has chosen to establish by affidavit evidence. I am not prepared to attach significant weight to what is a bare submission by Mr Mudraninec that he is unable to travel internationally to visit his family and friends. There is for instance no evidence as to the need or ability of those people to travel to New Zealand for reciprocal contact purposes.
[27] I am informed that Mr Mudraninec completed the Stopping Violence course as part of the conditions of his temporary protection order, I am not satisfied the condition imposed that he attend such a course converts the overall sentence to one which is manifestly excessive. For him to have offended in the way he did more than six months after the temporary protection order was imposed cogently suggests that any course he has undertaken has had limited, if any, effect on his appreciation of the violence he is visiting on his ex-partner and the impact it predictably has on her and on his ability to restrain himself.
[28] In short, this was offending that, to meet the purposes and apply the principles of the Act, called for effective sanctions for Mr Mudraninec’s violence and at the same time, a requirement that he engage (or further engage) with services to help him stop his family violence.
[29] Mr Mudraninec has not established that the sentence imposed was manifestly excessive.
Outcome
[30]The appeal is dismissed.
Osborne J
Solicitors:
Crown Solicitor, Christchurch Lawhub, Christchurch
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