Narayan v Police

[2014] NZHC 1241

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2014-485-20 [2014] NZHC 1241

BETWEEN

SHAILENDRA NARAYAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 June 2014
Counsel:	M J Baker and S R Lack for the Appellant I M Murray for the Respondent
Judgment:	4 June 2014

JUDGMENT OF MALLON J

Introduction

[1]      The appellant pleaded guilty to two charges of breaching a protection order.1

He was sentenced in the District Court to 11 months imprisonment for each breach, to be served concurrently.2   He appeals against that sentence on the grounds that it is manifestly excessive.

The offending

[2]      The appellant is separated from his wife after 17 years of marriage.   They have three children.  The appellant is subject to a final protection order, issued on

22 October 2013, which protects his wife and their three children.   On 13 January

2014 the appellant breached the protection order.   On 20 January 2014 he again breached the protection order.  He was convicted and sentenced in respect of each of

those breaches on 21 January 2014.  In respect of the first breach he was ordered to

1      Domestic Violence Act 1995, s 49.

2      Police v Narayan DC Hutt Valley CRI-2014-096-574, 24 March 2014.

NARAYAN v POLICE [2014] NZHC 1241 [4 June 2014]

come up for sentence if called upon.   In respect of the second, he was fined and ordered to pay court costs.

[3]      The present offending began in the early hours of 21 February 2014.   At around 3 am the appellant went to the house where his wife and children lived.  The appellant woke up his wife.  She answered the door.  He told her he had been beaten up.   He became upset  about his visitation rights with their children.   His wife repeatedly asked him to leave.  He obtained a machete from the garden shed and told his wife that he wanted to kill himself if she would not take him back.  His wife was concerned what might happen if she did not cooperate.  She allowed him to stay at the address and talked to him.  She managed to remove the machete from him and attempted to hide it.  The appellant found the machete again and his wife managed to remove it from him and hide it once more.  After some hours the appellant’s wife sent a text message to a work colleague stating that the appellant was at her house. The  colleague  called  the  police.    The  police  called  the  appellant’s  wife  who confirmed that the appellant was there.  The police arrived shortly afterwards and the appellant was arrested.  He was remanded in custody following the District Court’s

decision to decline his application for bail.3

[4]      The next morning the appellant’s wife received a call on her cell phone.  The caller identified himself as someone from the prison and asked if she was able to take a call from the appellant.  She said she was too busy to take the call.  Later that afternoon she received another call on her cell phone.   The caller was the same person who had called earlier and again he asked if she could take a call from the appellant.  She took the call.  The appellant told her that he wanted her to bring their children to the prison to see him.   She told him that all visitation rights had been suspended.  However she let the appellant speak to the children on the telephone.

The offender

[5]      The  appellant  is  39  years  old.    Apart  from  the  earlier  protection  order breaches in January 2014 he has just one other conviction which is for a driving

offence.   The pre-sentence report writer formed the view that the appellant had a

3      Police v Narayan DC Hutt Valley CRI-2014-096-452, 21 February 2014.

sense of entitlement.  The appellant said that he did not like taking orders from the police and appeared to view himself as the victim.   He thought his wife would forgive  him  and  accept  him  back.    He  was,  however,  willing  to  attend  any assessment or programme required of him.

Victim impact statement

[6]      The appellant’s wife has not been sleeping well.   She is worried that the appellant may snap and do something to her and the children.   She says that the appellant will not accept that the relationship is over.   She was afraid when the appellant turned up at the house.  When he had the machete she was too scared to call the police or raise the alarm.  She was shocked when the appellant called her from the prison.  She thought the prison authorities must have permitted it.  She says that he knows people in the prison.  She is worried that he knows she has put him in jail and that he will be thinking about getting her.  She is scared that the appellant will kill her because she has hurt his pride and he has nothing to lose.  She and the children are leaving their house.  She is worried that he will find them.

District Court sentence

[7]      The District Court Judge adopted a starting point of 12 months imprisonment for the first breach of a protection order.   She uplifted that by three months imprisonment for the breach the next day.   She reduced that to 11 months imprisonment  for  mitigating  factors.     She  imposed  concurrent  sentences  of

11 months imprisonment on each charge.  She imposed standard and special release conditions.

Assessment of appeal

[8]      The principal submission on the appeal is that the starting point of 15 months imprisonment for both breaches was too high.  The appellant compares this sentence with four cases.

[9]      The first case is Narayan v Police.4   In that case Mr Narayan was convicted of two breaches of a protection order.  The first breach occurred late at night when Mr Narayan banged on the door of the house in which his former partner and their children lived.   He was apprehended down the street from the house and caused damage to a police car.  Two days later he went back to the house and refused to leave despite several requests.  He also made threatening remarks.  On a successful appeal against sentence, the Judge took a starting point of six months imprisonment for the first breach and a charge of wilful damage and uplifted that by three months imprisonment for the second breach.  Mr Narayan had many convictions, including

19 convictions for domestic violence related offending. An uplift of three months for previous convictions was cancelled out by a three month discount for the guilty pleas.

[10]     In my view the offending in this case was more serious.  So far as the facts are apparent from the High Court judgment the contact on the first occasion in that case  appears  to  have  been  more  fleeting,  and  it  did  not  involve  a  weapon accompanied by threats to use it as was the case here. Although the second breach in that case occurred soon after the first breach, as was the case here, it must have been particularly distressing to the appellant’s wife in this case that he managed to contact her even though he was in prison and that he did so the very day after he was incarcerated.  That he made this second contact, and that both breaches occurred so soon after the two breaches in January, demonstrate a disturbing disregard for the protection  order imposed  by the Court.    Understandably the  appellant’s  wife is fearful for herself and her children.

[11]     The second  case the  appellant  refers to  is  Toko  v Police.5      In  that  case Mr Toko  was  convicted  of  three  breaches  of  a  protection  order.    Each  breach involved Mr Toko writing a letter, from prison, to either his former partner or her employer.  His partner found the letters to be threatening, obsessive and troubling. The District Court Judge took a starting point of six months imprisonment for the first breach and then uplifted that by three months imprisonment for the other two breaches.  He also imposed a significant uplift for previous offending.

[12]     The appellant compares the three month uplift for two breaches in that case with the uplift of three months for the second breach in this case.  However it was the uplift for previous offending, rather than the starting point or the uplift, that was the focus of the appeal to the High Court in that case.  Moreover, the two breaches in this case were considerably more serious than the breaches in that case, and therefore warranted a starting point higher than the total starting point of nine months imprisonment taken by the District Court in that case.

[13]     The third case referred to by the appellant is Reiha v Police.6   In that case, on a successful appeal against sentence, the appellant was sentenced to four months home detention for charges of male assaults female, threatening to kill and five breaches of a protection order (one for each of five texts sent by the appellant to the victim).   The offending occurred when the victim told the appellant that their relationship was at an end.  So far as the facts can be discerned from the judgment, the appellant’s outburst was over relatively quickly and no weapon was involved. The High Court considered that 16 months imprisonment would have been appropriate but the end sentence of home detention needed to be reduced because of the time spent in custody on remand by Mr Reiha.  The facts are a bit different here. However the starting point of 16 months regarded as appropriate in that case does not indicate that the total starting point of fifteen months imprisonment here was out of the available range.

[14]     The last case referred to by the appellant is Rikihana v Police.7   In that case the appellant was convicted of one count of male assaults female and one count of breaching a protection order.  The District Court Judge adopted a starting point of fifteen months imprisonment for both offences.  On appeal this starting point was not challenged.  It was therefore not considered by the High Court Judge.  The case is therefore of limited assistance when considering an appropriate starting point for breaches of a protection order of the kind that occurred in this case.

[15]     I am not satisfied that any of these cases show that the total starting point of

15 months imprisonment in this case was outside the available range.  It can be said

that this was stern both by comparison with other cases involving breaches of protection orders and by comparison with sentences for male assaults female. However the offending involved a particularly flagrant disregard of court orders and the appellant’s use of the machete, in the middle of the night at the home of the appellant’s wife and her children, was particularly distressing and disturbing.

[16]     The appellant submits that an insufficient discount for his guilty plea was given.  However this submission was acknowledged to be an error.  The appellant was entitled to a discount of no more than 25 per cent for his guilty plea. That would bring his sentence down to twelve months imprisonment.  The Judge in fact reduced the sentence by a further month.   She referred to the appellant’s age, his limited previous convictions, his work record and that he had arranged supportive accommodation for when he is released from prison.  However none of these factors are mitigating. The Judge’s overall discount of four months was therefore generous.

[17]     The  last  point  on  the  appeal  concerns  the  Judge’s  allocation  of  the  end sentence of 11 months imprisonment.   She applied that sentence to both breaches with the sentences to be imposed concurrently.  The appellant submits that this was wrong because the sentence on each charge should appropriately reflect the seriousness  of  each  charge.    The  respondent  does  not  oppose  the  appeal  being allowed to adjust how the sentence of 11 months imprisonment is allocated.  I will allow the appeal to this extent.

Result

[18]     The appeal against sentence is allowed only to the extent that the sentence on the second breach is quashed and replaced with a sentence of two months imprisonment (concurrent).  The sentence of 11 months imprisonment imposed on the first breach remains in place.

Mallon J

Solicitors:

Melanie Baker, Lower Hutt for Appellant

Crown Solicitor, Wellington for Respondent