NIKI JOHN GAMBLE-MACKESY AND NEW ZEALAND POLICE

[2024] NZHC 2905

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-000093

[2024] NZHC 2905

BETWEEN

NIKI JOHN GAMBLE-MACKESY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

7 October 2024

Appearances:

S A McKenna for Appellant

R A Greenhalgh for Respondent

Judgment:

7 October 2024

JUDGMENT OF VAN BOHEMEN J

[appeal against sentence]

This judgment was delivered by me on 7 October 2024 at 12:30 pm

Registrar/Deputy Registrar Date……………………………..

Solicitors:

McKenna King, Hamilton Crown Solicitor, Hamilton

GAMBLE-MACKESY v POLICE [2024] NZHC 2905 [7 October 2024]

[1]    Niki Gamble-Mackesy appeals the sentence of one year and seven months’ imprisonment imposed by Judge R G Marshall in the District Court at Hamilton on 23 August 2024,1 having pleaded guilty to one charge each of assault with intent to injure,2 threatening to kill,3 and theft (over $1,000).4

[2]    Mr Gamble-Mackesy contends his sentence is manifestly excessive because the Judge adopted a starting point that was out of proportion to the gravity of the offending.

Relevant background

[3]    Mr Gamble-Mackesy was in a relationship with the victim for approximately 14 months.

[4]    On 14 May 2024, while Mr Gamble-Mackesy and the victim were having a conversation in a car parked at the Whiritoa Surf Club, Mr Gamble-Mackesy grabbed the victim’s mobile  phone.  When  the  victim  attempted  to  retrieve  her  phone, Mr Gamble-Mackesy punched her in the right side of her head with a closed fist. He then shoved the victim’s head against the inside of the car door. The victim got out of the car and walked home, leaving Mr Gamble-Mackesy with her mobile phone.

[5]    Later that day, the victim located Mr Gamble-Mackesy at an address in Whangamatā. Mr Gamble-Mackesy refused to return the victim’s phone and tried to stop her from driving away from the address. He opened the driver-side door of the victim’s car and pushed her inside. The victim then drove away.

[6]    Late that evening, Mr Gamble-Mackesy drove to the victim’s address. The victim got into the car and Mr Gamble-Mackesy told her that he would only return her mobile phone if she performed sexual  acts  on  him.  When the  victim  declined,  Mr Gamble-Mackesy drove off with her. When the pair arrived in Waihi and the

1      Police v Gamble-Mackesy [2024] NZDC 20391 [Sentencing notes].

2      Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.

3      Section 306. Maximum penalty seven years’ imprisonment.

4      Section 223(b). Maximum penalty seven years’ imprisonment.

victim tried to get out of the car, Mr Gamble-Mackesy grabbed her arm, pulled her back inside and told her that he would kill her and her family if she left him.

Sentence imposed in the District Court

[7]    After outlining the background to the offending, Judge Marshall noted that Mr Gamble-Mackesy has previous convictions and had recently been released from prison after serving a sentence for robbery and escaping custody. The Judge also referred to a domestic violence offence from 2019.5

[8]    The Judge considered the pre-sentence report made for “pretty tragic reading”, recording Mr Gamble-Mackesy was at a very high risk of reoffending and harming victims. The report noted Mr Gamble-Mackesy had served five previous terms of imprisonment and the Judge recognised that, at the age of 29, he had spent many of his young-adult years in prison. The Judge observed Mr Gamble-Mackesy had refused to engage in a number of programmes in the past and was viewed as “pretty institutionalised and antiauthoritarian.”6

[9]    The Judge noted that the police proposed starting points of 18 months on the assault with intent to injure charge, four to six months on the other charges and two months for Mr Gamble-Mackesy’s previous convictions which, the Judge observed, would be well in excess of two years. The Judge also recorded that Mr Gamble-

Mackesy’s counsel submitted a starting point of 12 months as appropriate.7

[10]The Judge then said:

[9]   I have come to the conclusion on the assault with intent to injure   charge and the threat to kill charge, there was violence and premeditation there, there was attack to her head, she was vulnerable and you used the violence to steal her cellphone in an attempt to blackmail her and threaten to kill her. All in all on those three charges I take a starting point of 20 months’ imprisonment. I uplift that by three months because of your previous relevant offending and your offending while you were on release conditions, so that is 20 months plus a further three months.

5      Sentencing notes, above n 1, at [4].

6      At [5]–[6].

7 At [8].

[11]   The Judge then applied a 20 per cent discount for Mr Gamble-Mackesy’s guilty plea, observing he had accepted responsibility for the offending.8

[12]   The Judge did not consider home detention as a viable option for Mr Gamble- Mackesy,  noting it would likely be setting him up to fail.   The Judge observed     Mr Gamble-Mackesy had not completed any community-based sentences and, in his view, would be an unsuitable candidate.9

[13]   The Judge imposed an end sentence of 19 months’ imprisonment on the charge of assault with intent to injure together with concurrent sentences of six months’ imprisonment for threatening to kill and three months’ imprisonment for theft. The Judge also imposed the special release conditions recommended in the pre-sentence report.10

Approach on appeal

[14]   An appeal against sentence is an appeal against a discretion. Section 250(2) of the Criminal Procedure Act 2011 (CPA) provides that the Court must allow an appeal against sentence if it is satisfied that, for any reason, there was an error in the sentence and that a different sentence should be imposed. In any other case, it must dismiss the appeal.11

[15]   Section 251 of the CPA provides that, if a court allows an appeal against sentence, it must either set it aside and impose another sentence as appropriate, vary the sentence or any part of it, or remit the sentence back to the Court which originally imposed it.

[16]   The Court of Appeal has confirmed that, in applying s 250(2) of the CPA, the Court should continue to apply its long-established approach to reviewing sentences.12 An appeal against sentence will be successful only if the appellant can point to an

8 At [10].

9      At [7] and [11].

10     At [12]–[13].

11     Criminal Procedure Act 2011, s 250(3).

12     Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30]; and Tamihana v R [2015] NZCA 169 at [14].

error, either intrinsic to the judge’s reasoning, or as a result of materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion.13 Unless there is a material error in the end sentence, the Court will not intervene.14 There will be a material error if the end sentence is manifestly excessive or wrong in principle.15

[17]   In general, the focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached.16 However, there may be cases where there has been an error that requires correction, even if the sentence imposed is within range.17

Submissions

Submissions for Mr Gamble-Mackesy

[18]   Mr McKenna, counsel for Mr Gamble-Mackesy, submits the Judge adopted a starting point that was out of proportion to the gravity of the offending. He submits a starting point of 12 months is appropriate for this offending.

[19]   Mr McKenna accepts, on the lead charge of assault with intent to injure, there were two aggravating features of the offending:

(a)Attacks to the head: Mr Gamble-Mackesy struck the victim in the side of her head with a closed fist and then pushed her face up against the inside of the car door with an open palm. Mr McKenna says this is not the worst example of this aggravating feature as there was only a single strike and the pushing and shoving did not carry the same risk of serious injury.

(b)Vulnerable victim: the victim was female and Mr Gamble-Mackesy had a physical strength advantage over her. While Mr McKenna accepts this is an aggravating feature, he suggests it is inappropriate to class

13     Tamihana v R [2015], above n 12, at [14] and [29]–[30].

14     Te Aho v R [2013] NZCA 47 at [30]; Tamihana v R, above n 12, at [14].

15     Tamihana v R, above n 12, at [14].

16     Tutakangahau v R, above n 12, at [36]; Tamihana v R, above n 12, at [14].

17     Tutakangahau v R, above n 12, at [36].

victims as vulnerable purely by virtue of gender without more. Therefore, he submits this feature was only present to a low to moderate degree.

[20]   However, Mr McKenna disputes the Judge’s finding that the offending was premeditated. He says there is nothing to suggest the meeting in Whiritoa was orchestrated — Mr Gamble-Mackesy acted violently in the heat of the moment.     Mr McKenna accepts Mr Gamble-Mackesy’s actions throughout the remainder of the day, including not returning the mobile phone and making the threat, can be considered to have had a degree of premeditation. However, he says the initial assault was opportunistic rather than planned. Mr McKenna refers the Court to the cases of Fraser v R and Kohu v Police and submits the offending in Kohu is the closest to the present case, where a global starting point of 12 months was adopted and not disturbed on appeal.18

[21]   Mr McKenna takes no issue with the uplifts applied for past offending or with the discount applied for Mr Gamble-Mackesy’s guilty plea. However, he says the Judge erred by applying the 20 per cent guilty plea discount to the starting point of 20 months rather than applying that discount to an adjusted starting point of 23 months once the uplift for prior offending had been imposed.

[22]Mr McKenna accepts that imprisonment is the reast restrictive option.

Submissions for the Crown

[23]   Ms Greenhalgh, Crown counsel, submits the starting point adopted by the Judge was within the range available  and was  appropriate in the  circumstances.  Ms Greenhalgh notes the two cases relied on by Mr Gamble-Mackesy involved a single incident of violence, whereas, in this case, the Judge was dealing with a series of events that involved repeated acts of violence together with a serious threat of violence.

18     Fraser v R [2024] NZCA 211; and Kohu v Police [2013] NZHC 944.

[24]   Ms Greenhalgh submits the aggravating features of the offending were such that the starting point adopted was not only appropriate but could have been higher:

(a)Attacks to the head: Mr Gamble-Mackesy hit the victim in the head twice.

(b)Victim vulnerability: the victim was Mr Gamble-Mackesy’s domestic partner. Ms Greenhalgh says the victim was not only vulnerable because she was physically weaker than him, but she was also confined within the vehicle, unable to escape the attack.

(c)Premeditation: Ms Greenhalgh says Mr Gamble-Mackesy orchestrated a situation where the victim met him at the surf club prior to the assault, and he later visited her at her home, forcing her into his vehicle and taking her to Waihi in  the  middle  of  the  night  against  her  will.  Ms Greenhalgh submits, given the repetition of the acts, there was a degree of premeditation.

(d)Facilitation   of   further   offending:   relying   on   R   v   Taueki,19  Ms Greenhalgh says the use of violence to facilitate the commission of another offence should be seen as an aggravating factor. She submits Mr Gamble-Mackesy took the victim’s phone and used it in an attempt to blackmail her, enabling him to steal the phone.

(e)Family violence: Ms Greenhalgh says the inherent vulnerability of family situations aggravates violent offending.

[25]   Ms Greenhalgh submits the Judge gave appropriate weight to the aggravating factors he identified. She says the offending was appropriately placed in the mid- region of band 3 of Nuku v R — the guideline judgment for similar offending involving intent to injure.20 Ms Greenhalgh also refers to the case of Goodman v R where a

19     R v Taueki [2005] 3 NZLR 372 (CA) at [31].

20     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

starting point of two years was endorsed by the Court of Appeal as within the available range.21

Analysis

[26]   As a preliminary matter, I record that the Judge applied the correct two-step sentencing methodology.22 Under the methodology set out by the Court of Appeal in Moses, stage one deals with circumstances of the particular offending while stage two deals with the circumstances of the offender. For that reason, uplifts for prior offending, as well as discounts for personal circumstances, fall for consideration at stage two. Uplifts are only applied at stage one in situations where the offender is being sentenced for multiple offences and an uplift is applied to the starting point adopted for the lead offence.

[27]   In this case, the Judge clearly adopted 20 months as a global starting point for all three charges.23 Accordingly, the uplift of three months for prior offending and the 20 per cent (four month) discount were correctly applied to the 20-month starting point, resulting in an end sentence of one year and seven months’ imprisonment.

[28]   There is no guideline judgment for the offence of assault with intent to injure. However, in Tamihana v R, the Court of Appeal considered the approach in Nuku v R, which set out three bands by reference to aggravating factors, “helpful in sentencing for offending contrary to s 193,” despite that guideline decision focusing on different offences with higher maximum sentences.24 The Nuku bands are:25

(a)Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

21 Goodman v R [2016] NZCA 64.

22 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

23 Sentencing notes, above n 1, at [9].

24    Tamihana v R, above n 12, at [16] and [18]. Nuku v R is the guideline judgment for the offences  of wounding with intent (s 188(2)), injuring with intent (s 189(2)) and aggravated wounding or injury (s 191(2)).

25 Nuku v R, above n 20, at [38].

(b)Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at

[31] of Taueki are present.

(c)Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

[29]   If assault with intent to injure is taken as the leading charge, I consider there were two aggravating features of the offending present:

(a)Attacking the head: even where weapons are not used, attacks on the head of a victim can have particularly serious consequences. While Mr Gamble-Mackesy did not use a weapon and the victim sustained only minor injuries, she suffered two blows to the head. I consider this aggravating feature to be present to a moderate degree.

(b)Vulnerability of the victim: Mr Gamble-Mackesy and the victim were in a relationship. He had a strength advantage over her and Mr Gamble- Mackesy attacked the victim in the confines of a car, where she was unable to immediately escape the attack. I consider this aggravating feature to be present to a moderate degree.

[30]   I accept that the assault lacked premeditation and that Mr Gamble-Mackesy acted violently in the heat of the moment. Therefore, premeditation was not an aggravating feature of the assault with intent to injure charge. However, Mr Gamble- Mackesy’s actions in refusing to return the victim’s mobile phone, visiting her late at night, driving her to Waihi and issuing the threat illustrate a degree of premeditation in relation to the other charges, and is relevant to the sentence imposed in respect of those charges.

[31]   I do not consider the aggravating features of facilitating a further crime or family violence to be separate aggravating features in this offending. However, given that Mr Gamble-Mackesy and the victim were in a relationship at the time, domestic

violence is a relevant consideration, particularly in relation to the vulnerability of the victim.

[32]   While, on the above analysis, there are two separate aggravating features, I am satisfied that the offending still falls within Nuku band two. I am also satisfied that the starting point adopted by the Judge was consistent with the guidance in Nuku, bearing in mind that the starting point adopted by the Judge was a global one for the three charges to which Mr Gamble-Mackesy had pleaded guilty.

[33]   If the Judge had identified a separate starting point for the assault with intent to injure charge, a starting point of 15 months would have been available and would have been consistent with the indicative starting range adopted in Fraser v R,26 even accepting that Mr Gamble-Mackesy’s assault was not as serious as that considered in Fraser. Given that the three charges involved discrete acts occurring over a period of time, it would have been open to the Judge to apply notional uplifts in respect of the charges of threatening to kill and theft. Uplifts of at least two to three months would have been appropriate for each of those charges. The net result would have been the same or higher than the starting point adopted by the Judge.

[34]   I consider the fact a 12-month starting point was adopted in Kohu v Police to be of little assistance.27 In that case, the Court accepted that the offending came within band one of Nuku but observed that domestic violence was a scourge and sentences towards the upper end of a range were appropriate.28 Moreover, as Ms Greenhalgh noted, in Goodman v R, the Court of Appeal observed that sentences of between two to three years’ imprisonment for domestic violence offending are not uncommon.29

[35]   Given these considerations, I am satisfied that the sentence of 19 month’s imprisonment is not manifestly excessive, and I see no reason to disturb the sentence imposed in the District Court.

26     Fraser v R, above n 18, at [27].

27     Kohu v Police, above n 18.

28     At [14] and [16].

29     Goodman v R, above n 21, at [12].

Result

[36]Mr Gamble-Mackesy’s appeal is dismissed.

G J van Bohemen J