Narayan v Police

[2012] NZHC 988

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2012-406-009 [2012] NZHC 988

WALTER FREDERICK NARAYAN

v

NEW ZEALAND POLICE

Hearing:         10 May 2012

Counsel:         J Holdaway for Appellant

J Webber for Crown

Judgment:      11 May 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2:00pm on the 11th May 2012.

JUDGMENT OF WILLIAMS J

[1]      On 10 May, having heard from counsel, I allowed this appeal with reasons to follow.  Here are those reasons.

[2]      On 5 March, Judge Russell sentenced Walter Narayan to a total of 14 months’

imprisonment on three counts – two of breaching protection orders and one of wilful damage.  He appeals, arguing that this sentence was manifestly excessive.

WALTER FREDERICK NARAYAN V NEW ZEALAND POLICE HC BLE CRI-2012-406-009 [11 May 2012]

[3]      The breach of protection offences were against Mr Narayan’s partner.  They had been in an on again and off again relationship for 10 years.   They have four children  together.    She  obtained  a  temporary  protection  order  against  him  on

1 November 2012.  A month and a half later, late at night on 21 December 2012, the appellant appeared outside her address, banging very loudly on the door.  He woke his daughters and the police were called.  The police located the appellant down the street.  He initially denied the offending.  When eventually put in the police car, he kicked the centre console and smashed a window with his elbow – this incident is reflected in the wilful damage count.

[4]      Two days later, the appellant again went over to his partner’s address.  She asked him to leave several times.  He refused.  He said “If I can’t see my kids, well you can’t either.  And you know where you will be.”  He told police he was there because he wanted to see his children.

[5]      Mr Narayan has many previous convictions,[1]  although none for breach of protection orders.   His history includes 34 family violence callouts, and 19 of his convictions are related to domestic violence.  The appellant seems to have a highly destructive and abiding addiction to drink.  If he is to avoid an ever downward spiral, he needs to do something about that.

[1] These included 24 convictions for violence, 35 for dishonesty, eight for driving, six for breach of sanctions, three for drug crime and 26 for miscellaneous offences (disorderly behaviour, trespass etc).

[6]      In relation to his previous convictions, Mr Narayan had 86 hours outstanding community work and $5,946 in outstanding fines.

[7]      The pre-sentence  report  recommended  imprisonment.    No-one is  arguing against that outcome on appeal.

[8]      The PSR details the appellant’s “up and down” relationship with the victim. It seems their relationship has now stalled indefinitely.   The PSR explains this is largely due to the appellant’s alcohol addiction.  This is discussed further in an A&D Assessment report prepared by the Nelson Marlborough DHB.

The approach of Judge Russell

[9]      The Judge acknowledged Mr Narayan’s criminal history, as well as the PSR and alcohol report discussed above.  He acknowledged the desire of the victim to get away from Mr Narayan.

[10]     The Judge addressed each information separately.   For the 21 December offending (breach of the protection order and wilful damage), he adopted a starting point of eight months.  He then uplifted by two months for previous convictions and discounted by three months for Mr Narayan’s guilty plea.  The final sentence was seven months.

[11]     For the 23 December offending (second breach of the protection order), he also adopted a starting point of eight months.  He then uplifted by four months for the fact it was committed while on bail, and the “number, seriousness and date” of previous convictions.  He then downgraded that by three months for the guilty plea. The final sentence was nine months.

[12]     The Judge then emphasised:

(a)       the aims  of promoting  accountability,  denunciation  and  deterrence

(particularly given the offending related to domestic violence);

(b)the “particularly aggravating” feature of the breaches being face-to- face, at night, involving threats;

(c)      the need to consider the totality of offending and impose a sentence consistent with that.  The Judge felt this required a further discount of two months;

(d)that no suitable address for home detention was proposed and, in any event, home detention was inappropriate here.

[13]     The Judge then said:[2]

[2] At [30].

Rather than impose cumulative sentences I will deal with the charges in this way.  On the two breach of protection order charges the sentence will be one of 14 months imprisonment.  On the intentional damage charge there will be a sentence of two months imprisonment.  Those sentences are to be served concurrently. The total sentence will be 14 months’ imprisonment.

Submissions

[14]     Counsel  for  the  appellant  argued  that  14  months’  imprisonment  was manifestly excessive for offending of this kind.   Mr Holdaway argued for a final sentence of six months on the two counts arising from the events of 21 December

2011 and a sentence of four and a half months for the 23 December count.   He argued that the sentences should be served concurrently because of their similar nature and proximity in time.

[15]     For the police, Mr Webber accepted that the appellant’s final sentence was too high.   He noted that there was no case in which, in similar circumstances, sentences of this length had been imposed for “mid-level culpability”.

Discussion

[16]     The issue is whether the sentence was “clearly excessive”, having particular

regard  to  the  totality  of  offending  (which  must  be  considered  per  s 85  of  the

Sentencing Act 2002).

[17]     When considering whether the sentence was clearly excessive, the focus is on the correctness  of the end  result  –  not  the process  by which  the  sentence  was reached.[3]    I agree  with  counsel  that  this  sentence,  however  reached,  cannot  be supported on the authorities.  It is substantially too high.  It is in order therefore to retraverse the sentencing process in this case to determine an appropriate sentence.

[3] R v MacCullouch [2005] 2NZLR 665 (CA) at [50]

[18]     I agree that all sentences should be imposed concurrently.  They are part of a general (albeit short) pattern of offending, and close in time.[4]

[4] Sentencing Act 2002, s 84(2).

[19]     The first breach of protection order is the lead offence.  As Fogarty J said in Mam v Department of Corrections, instances of breach “vary enormously in culpability and  in  degrees  of  threat,  psychological  or  physical,  to  the  protected persons.”[5]

[5] At [4].

[20]     I have considered the following similar cases:

Case  Charges  Penalty (for breach offence)

Mam v Department of

Corrections
HC Christchurch

CRI-2011-409-111

1 December 2011 per Fogarty J

Breach of protection order

Breach of release conditions

(Telephoned, sent txt message about seeing victim in court)

4 months

Te Wani v Police HC Christchurch CRI-2010-409-223

15 December 2012 per Panckhurst J

Breach of protection order

Common assault
Assault on police officer

(Physical contravention, bit partner, assaulted partner’s mother)

5 months HD originally imposed (revised on appeal to take into account exceptional circumstances) (= 10 months imprisonment)

Leacock-Johnson v Police

HC Dunedin

CRI-2010-412-15

12 May 2010 per Miller J

Male assaults female (x2) Wilful damage (x2)

Breach of protection order

Refusing to permit specimen to be taken

(Two occasions, both involved physical contravention at night, significant violence, aggression)

6 months (con. with other sentences for second incident)

Police v Watson  Breach of protection order (x2)                  4 months HD (= 8 months

DC Whakatane

CRI-2009-087-607

30 April 2009
Judge Rollo

Wilful damage

(Almost exactly the same facts, except a willingness to engage in rehab, PSR recommended HD)

imprisonment)

Letham v Police

HC Timaru

CRI-2008-476-8

12 May 2009 per French J

Breach of protection order (x2)

(Five text messages, mostly emotional angst)

3 months (con)

Haren v Police

HC Timaru

CRI-2008-476-12

20 August 2008

Breach of protection order (x2)

(Actual violence involved, although at a time when the parties were attempting reconciliation)

4 months (albeit, acknowledging that if the accused had been bailed/oral judgment not delivered, non- custodial would probably have been imposed)

Bishop v Police

[2007] NZFLR 635 (HC)

per Rodney Hansen J

Breach of protection order

Wilful damage
Driving with EBA

(Telephoned, went to victim’s work,

rammed her car)

3 months, overturned on appeal to 200h community work, 6 months supervision.

[21]     A starting point for the lead offence here would be six months’ imprisonment. This is informed by the fact the breach was a physical contravention (as opposed to contravention by text or phone call), it was at night, and was threatening and aggressive, with the effect the victim became very frightened.  This is broadly in line with Watson, and reflects the fact the breach was more serious than in Letham and Mam.

[22]     To account for totality in the light of concurrent sentencing,[6]  an uplift by three months is appropriate to take into account the wilful damage and second breach in similar circumstances.   This adjustment would fairly reflect the totality of offending.   The second breach involved less aggressive behaviour, although was accompanied by verbal threats.  Wilful damage is a minor count with a much lower maximum penalty.

[6] Sentencing Act 2002, s 85(4).

[23]     A further uplift by three months is required to take into account Mr Narayan’s

extensive previous convictions.   The relevant ones here are those for breach of sanctions (eg release conditions) and the domestic violence convictions.

[24]     Finally, a three months deduction is in order for the guilty plea.  This would produce a final sentence of nine months’ imprisonment.

Conclusion

[25]     The  appeal  is  allowed  and  a  sentence  of  nine  months’ imprisonment  is substituted.

Williams J