Newton v Police
[2023] NZHC 3704
•14 December 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-220
[2023] NZHC 3704
BETWEEN MATTHEW ALLEN NEWTON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 December 2023 Appearances:
R J T George for Appellant
W J S Mohammed for Respondent
Judgment:
14 December 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 14 December 2023 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
NEWTON v NEW ZEALAND POLICE [2023] NZHC 3704
Introduction
[1] On 12 October 2023, Matthew Newton was sentenced in the District Court1 to 21 months’ imprisonment in relation to the following offending:
(a)contravenes protection order (family violence);2
(b)possess methamphetamine;3
(c)possess methamphetamine utensils;4
(d)possess cannabis;5
(e)refused officer’s request to give blood;6 and
(f)two charges of driving while disqualified (third or subsequent).7
[2] He appeals the sentence on the grounds that the starting point applied was too high and the uplift for his previous convictions should not have been imposed.
Facts
[3] Mr Newton was disqualified from driving for six months on 8 March 2023. He was discovered driving in breach of this disqualification by police on 27 April 2023. On the same day, Mr Newton arrived at the victim’s address, in whose favour a protection order had been made in respect of Mr Newton. Nothing further happened that day after the victim told Mr Newton to leave and never return.
1 New Zealand Police v Newton [2023] NZDC 22782.
2 Family Violence Act 2018, s 112; maximum penalty 3 years’ imprisonment.
3 Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty 6 months’ imprisonment and/or a fine not exceeding $1,000.
4 Misuse of Drugs Act, s 13(1)(a) and (3); maximum penalty 1 year imprisonment and/or a fine not exceeding $500.
5 Misuse of Drugs Act, s 7(1)(a) and (2); maximum penalty 3 months’ imprisonment and/or a fine not exceeding $500.
6 Land Transport Act 1998, s 60(1)(a) and (2); maximum penalty 3 months’ imprisonment or a fine not exceeding $4,500. The Court must also order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.
7 Land Transport Act, s 32(1)(a) and (4); maximum penalty 2 years’ imprisonment or a fine not exceeding $6,000. The Court must also order the person to be disqualified from holding or obtaining a driver licence for 1 year or more.
[4] However, on 4 May, Mr Newton returned. He stood on the front porch, yelling incoherently. The victim’s daughter, frightened by the yelling, told her mother he was there. The victim walked outside to tell Mr Newton to leave. He approached and yelled in her face. He raised his fist and held it by the victim’s head as he continued yelling. The victim cowered, believing Mr Newton was going to assault her. The victim’s daughter began to scream, prompting Mr Newton to leave.
[5] On 7 May, Mr Newton was again found driving while disqualified. When arrested, he was found to have two small bags containing 0.17 g of methamphetamine and two more bags containing 0.65 g of cannabis. When his vehicle was searched, a methamphetamine utensil was found. Mr Newton refused to provide a blood specimen when required.
Principles on appeal
[6] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.8 As the Court of Appeal identified in Tutakangahau v R (quoting the lower court’s decision), a Court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10
District Court decision
[7] The District Court Judge took the breach of the protection order as the lead charge. He considered the offending to be serious given Mr Newton returned soon after being told never to come back. While there, he subjected the victim to psychological abuse, while physically proximate, involving a threat of assault. A starting point of 12 months was adopted having regard to the gravity of the offending
8 Criminal Procedure Act 2011, ss 250(2) and 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
10 Ripia v R [2011] NZCA 101 at [15].
and without reference to Mr Newton’s previous conviction for breaching the protection order.
[8] An uplift of eight months was applied for Mr Newton’s fifth and sixth driving while disqualified convictions. The refusing to provide a blood specimen attracted a two-month uplift with a further one-month uplift for the drug offending.
[9] A global starting point of 23 months was reduced to 21 months to reflect totality.
[10] The Judge noted Mr Newton had been released from prison on 12 April 2023 with conditions. The lead charge for that sentence was a breach of the protection order in favour of the victim. A condition of his release was not to contact the victim of the protection order offending. Another condition was not to possess or consume controlled drugs. A 10 per cent uplift was applied for offending while on release conditions and in breach of those conditions.
[11] In respect of Mr Newton’s previous convictions, the Judge noted his driving while disqualified convictions had already been accounted for in the starting point but said Mr Newton possessed relevant convictions for breaching the protection order, refusing to provide blood, and drug-related offending. An eight per cent uplift was applied.
[12] Mr Newton had pleaded not guilty, received a sentence indication, declined that, and confirmed his not guilty pleas before eventually pleading guilty. An 18 per cent discount was afforded for his guilty plea.
[13] Despite reaching a short-term sentence of imprisonment, the Judge did not consider a community-based sentence was appropriate.
Submissions
Appellant’s submissions
[14] Mr George, for Mr Newton, says an eight-month starting point would be more appropriate on the protection order breach. Acknowledging the highly fact-specific nature of such offending, he submits the offending lacks physical violence, an extensive history of similar offending against the same victim, and submits it is similar to the case of Irvine v Police,11 where this Court held a starting point of 10 months was stern in light of what he says was more serious offending.
[15] Mr George also contends the two-month uplift for refusing to provide a specimen was too high given the maximum sentence for that offence is three months’ imprisonment. He suggests no uplift was necessary.
[16] In respect of the uplift for previous convictions, Mr George submits these were already taken into account in setting the starting point and that any further uplift amounts to double counting. He notes that a 10 per cent uplift was also applied for deterrence in light of the offending having occurred while on sentence, and an effective 18 per cent uplift for deterrence is excessive.
[17] Taking all these adjustments into account, Mr George submits an end sentence of 14 months’ imprisonment is appropriate.
Respondent’s submissions
[18] In respect of the lead charge, being the breach of the protection order, Mr Mohammed submits the Judge was right to treat this as serious given the following aggravating features:
(a)the threat of violence was to the head;
(b)the threat of violence occurred in front of the victim’s children who were also protected people under the order;
11 Irvine v Police [2017] NZHC 3085.
(c)the offending occurred at the victim’s home, where she and her children were entitled to feel safe;
(d)the appellant refused to leave and only did so when the victim’s daughter started screaming;
(e)the offending has had a significant psychological impact on the victim and her children;
(f)the offending occurred only days after the appellant was told to leave the victim’s address and never return; and
(g)the appellant had previously breached the protection order and been convicted for that.
[19] Mr Mohammed said the cases cited by Mr George to support a lower starting point are generally not as serious as the present case, noting that in Russell v Police, the High Court upheld the starting point of 15 months’ imprisonment on one charge of breaching a protection order by telephoning the victim five times, although she did not answer.12 The offending in Robinson v Police was also less serious than in the present case as it concerned a refusal to leave in front of a friend, and the target of abuse in that case was the victim’s friend.13 In the present case, the threat of physical violence to the head was to the victim herself in her home and in front of the victim’s children. Similarly, the case in Irvine is less serious as it involved repeated telephone calls and banging on the lounge window of the victim’s house, but not a threat of physical violence in front of a child.
[20] While Mr Mohammed accepts the case of Wallace-Joe v Police is more serious, the starting point of 12 months’ imprisonment was not challenged on appeal and, when compared with other cases, this starting point appears to be a generous outlier.14
12 Russell v Police [2023] NZHC 631.
13 Robinson v Police [2019] NZHC 1412.
14 Wallace-Joe v Police [2016] NZHC 3060.
[21] In respect of the total uplift of 11 months for the other offending, Mr Mohammed submits this was available, particularly when one takes account of the two months’ reduction for totality. The further offending encompassed other imprisonable offending including for recidivist driving while disqualified and drug charges.
[22] Mr Mohammed points to Mr Newton’s offending having taken place while subject to conditions and his extensive criminal history. This includes previous driving offending, a recent conviction for breaching the same protection order, and serious drug convictions. Mr Mohammed says the history reflects an ongoing refusal or failure by Mr Newton to rehabilitate and be deterred by sentences.
[23] Against this is what Mr Mohammed describes as a generous guilty plea discount given the many steps that took place before guilty pleas were entered. These include three adjournments in May and June 2023 while he considered whether to accept a sentence indication which he ultimately declined and then seeking a further sentence indication in August which the Court declined before he entered guilty pleas.
Analysis
Starting point
[24] I concur with the District Court Judge both in taking the breach of the protection order as the lead offence and in his identification of the aggravating features of the offending. That said, I note that the Judge appears to have reached the starting point without reference to Mr Newton’s conviction for a breach of the same protection order. In Carlyon v Police, prior convictions for breaches of protection orders were said to be integral to the assessment of the gravity of the index offending. This is because a history of previous breaches is directly relevant to the assessment of the gravity of the most recent offending and the culpability of the offender.15
[25] Sentences for breaching protection orders vary greatly, and case-by-case comparisons are difficult because the offending is so variable and always highly
15 Carlyon v Police [2017] NZHC 2526 at [20].
contextual.16 The maximum sentence for breach of a protection order is three years so, leaving aside for the moment comparable cases, it is difficult to see that, for a moderately serious breach of a protection order such as here, a starting point of 12 months is out of range. In any event, I accept Mr Mohammed’s analysis of the cases cited by Mr George generally support the starting point adopted by the Judge. In particular, in this case, the threat of violence was more overt than in those cases, it was preceeded by Mr Newton having technically breached the protection order a few days earlier and being told not to return to the address, and was aggravated by threatening the victim in front of the victim’s daughter.
Uplift for other offending
[26] An eight-month uplift on the two driving while disqualified charges cannot be criticised. Starting points in the vicinity of 10 months are usually applied for those on their fifth or sixth convictions.17 Given this uplift encompassed two such charges, it could be described as lenient.
[27]Neither party criticises the one-month uplift for minor drug offending.
[28] As to the uplift of two months for the refusal to give a blood specimen, such offending is rarely dealt with in detail, and the discrete nature of the charge makes it difficult to identify what might qualify the lower and higher ends of the range beyond previous convictions. In Muhinda v R,18 the appellant was sentenced to 18 months’ imprisonment on charges of careless driving, driving while disqualified, and refusing a blood specimen. The refusing the blood specimen charge received a two-month concurrent sentence. Here, the two month sentence was imposed cumulatively, and I acknowledge it was high given the maximum penalty is three months’ imprisonment. A sentence of one month’s imprisonment would be a more proportionate uplift. However, as this would only affect the end sentence by one month, it does not necessarily mean the end sentence was manifestly excessive.
16 Jackson v Police [2019] NZHC 281 at [41]; and Pahulu v Police [2020] NZHC 153 at [29].
17 Borell v Police [2014] NZHC 2422 at [42].
18 Muhinda v New Zealand Police [2015] NZHC 2024.
Adjustments for personal factors
[29] In adjusting a sentence upwards for prior convictions, it must be borne in mind that a sentence should be based primarily on the facts of the offence for which the offender is being sentenced, and it must not be increased merely because of previous convictions because doing so would be to effectively increase the sentence imposed on that previous occasion or occasions.19 In considering whether the previous convictions bear upon character and culpability, an indication of reoffending, and the need to protect society through a deterrent sentence, the courts will consider the number, seriousness, and nature of the convictions, and the time since the last conviction.
[30] Mr Newton’s previous convictions have already been accounted for in respect of his driving while disqualified, although it does not appear that the Judge took into account the previous breach of the protection order in setting the starting point for that offence, and I consider he should have. In my view, the 12 month sentence reflected both the gravity of the offending and the fact he had previously been convicted of the same offence with the same victim.
[31] If I exclude the previous convictions for contravening a protection order and refusing to give blood when considering the uplift, the only recent relevant convictions are for speaking threateningly in a family violence context and possessing cannabis and methamphetamine. While he has a significant criminal history prior to this, it largely comprises dishonesty offending.
[32] Given the limited number of the recent convictions for similar offending, I consider the uplift of eight per cent was too high. A modest uplift of two to five per cent was all that was warranted when it is recognised that the starting points for some of the offending did reflect, or should have reflected, the history of similar offending.
[33] However, I also accept Mr Mohammed’s submission that the discount of 18 per cent for Mr Newton’s guilty plea was generous given the delays in entering the
19 Wipa v R [2018] NZCA 219 at [25]–[28].
plea and, if any aspect of the sentencing was stern, or too high, then this largely ameliorated it.
Conclusion
[34] While I accept that aspects of the sentencing were, when examined closely, a little too high, those would have resulted in only modest adjustments to the sentence, and which could have been compensated for by a lesser guilty plea discount. In any event, looking at the range of offending, the fact it occurred while on release conditions, and the similarity to recent offending for which Mr Newton has been convicted, I am satisfied that the end sentence could not be said to be manifestly excessive.
[35]Accordingly, the appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
R J T George, Barrister, Christchurch
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