OWEN ANTHONY JACKSON AND NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS s
[2022] NZHC 3300
•8 December 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-178
[2022] NZHC 3300
BETWEEN OWEN ANTHONY JACKSON
Appellant
AND
NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS
Respondents
Hearing: 7 December 2022 Appearances:
K J May for Appellant
G E R Alloway for Respondents
Judgment:
8 December 2022
JUDGMENT OF MANDER J
This judgment was delivered by me on 8 December 2022 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
JACKSON v NEW ZEALAND POLICE [2022] NZHC 3300 [8 December 2022]
[1] Owen Jackson was sentenced in the Christchurch District Court1 to 15 months’ imprisonment on charges of conversion of a motor vehicle,2 assault on a person in a family relationship,3 threatening to kill,4 possession of a pipe for methamphetamine use,5 and breach of release conditions.6
[2] Mr Jackson appeals his sentence on the grounds the Judge failed to recognise the different charges faced at sentencing compared to those upon which he was provided with a sentence indication, and that credit should have been afforded to him to reflect his disadvantaged background.
Facts
[3] Mr Jackson was released from prison in April 2022. He failed to report to his probation officer on 20 May of that year. This gave rise to the breach of release conditions charge.
[4] Shortly after being released from prison, Mr Jackson was allowed to borrow a vehicle. In mid-July, he was asked to return this vehicle but did not do so. That failure led to the conversion charge.
[5] On 29 July 2022, Mr Jackson visited his mother’s workplace and found her sitting in her car. He opened the vehicle’s passenger door and leaned inside. He began arguing with his mother and spat in her face. When she said she was calling the Police, Mr Jackson threatened to kill her and her boyfriend, before snatching her phone away and grabbing her by the clothing around her neck. During this incident the victim’s glasses were damaged, and she suffered bruising and swelling to her eye.
[6] When Mr Jackson was arrested a day later, Police found a glass methamphetamine pipe in his vehicle.
1 New Zealand Police v Jackson [2022] NZDC 22058.
2 Crimes Act 1961, s 226; maximum penalty seven years’ imprisonment.
3 Crimes Act, s 194A(1); maximum penalty two years’ imprisonment.
4 Crimes Act, s 306; maximum penalty seven years’ imprisonment.
5 Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one year imprisonment and/or a fine not exceeding $500.
6 Parole Act 2002, s 71(1); maximum penalty one year imprisonment and/or a fine not exceeding
$2,000.
Principles on appeal
[7] An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 The focus is not on the process by which the sentence was reached but on the correctness of the end result.8
District Court sentencing
[8] Mr Jackson received a brief sentence indication of an end sentence of 15 months’ imprisonment. The indication was relatively impromptu and informal, the Judge recognising that it would otherwise be some months before a sentence indication could be provided to Mr Jackson. In the period between being provided this indication, and the sentencing decision, charges of breaching release conditions and intimidation were withdrawn.
[9] At sentencing, Judge Couch set a starting point of eight months’ imprisonment for the charges relating to the assault and threatening of Mr Jackson’s mother. The vehicle charge attracted a five-month starting point, and the breach of release conditions a four-month starting point. This resulted in a global starting point of 17 months’ imprisonment, which the Judge considered was appropriate on a totality basis.
[10] To reflect Mr Jackson’s history of family violence and property offending, the Judge imposed a 10 per cent uplift, about which no complaint is made on appeal. The delayed guilty pleas attracted a 20 per cent discount. This resulted in an end sentence of 15 months’ imprisonment. Reparation of $400 was also ordered in respect of the motor vehicle.
The appeal
[11] On behalf of Mr Jackson, Mrs May submitted the sentencing Judge had overlooked that two charges had been withdrawn after the sentence indication had
7 Criminal Procedure Act, ss 250(2) and 250(3).
8 Ripia v R [2011] NZCA 101 at [15].
been provided, which reduced the seriousness of the overall offending and should have been reflected in the sentence ultimately imposed. It was also suggested that edits to the summary of facts had resulted in some particulars relating to the assault being less serious. However, the main focus of the appeal centred on additional information, contained in letters provided by Mr Jackson, his lawyer for his abuse in state care claim, and a psychological treatment report which it was submitted had justified an additional discount. This information had not been made available to the Court for the purpose of the sentence indication but was before the Court at sentencing. Mrs May submitted the Judge did not address this material and may have inadvertently overlooked its relevance and mitigatory effect.
[12] Mr Jackson suffered physical, sexual and psychological abuse while in the care of both his family and the state. This abuse was submitted by Mrs May to have a clear causal nexus with the offending against Mr Jackson’s mother, such that a discount was warranted.
Analysis
[13] The issues on the appeal are relatively confined. While Mrs May did submit the charges that had been withdrawn ought to have reduced the seriousness of the offending for the purposes of sentencing, no material issue was taken with any of the starting points adopted by the sentencing Judge. Because of the range of circumstances in which family relationship assault can occur, making comparisons with other cases is not straightforward. The exercise is further complicated in the circumstances of this case by Mr Jackson’s additional offending. However, it is not apparent that the Judge’s starting point was otherwise but well within range when compared with the approach taken in some cases.9 Having regard to the very informal sentence indication exercise and the relatively minor nature of the two charges that were subsequently dropped, I do not consider their withdrawal materially affected the correctness of the starting points adopted by the Judge. No complaint is made that Mr Jackson was misled nor any suggestion that he wished to revisit his pleas.
9 Woods v Police [2019] NZHC 335; Barlao v New Zealand Police [2021] NZHC 1828; and R v Werahiko [2008] NZCA 24.
[14] The primary issue on the appeal was whether greater recognition should have been given to the information concerning Mr Jackson’s abuse while in family and state care as a youth. This information is sourced from Mr Jackson himself in a letter provided to the sentencing Judge, a letter of Ms Sonja Cooper who acts for Mr Jackson in his abuse claim against the Ministry of Social Development, and a psychological treatment report prepared by Dr Heather Gordon.
[15] Ms Cooper’s letter is the most informative. It references CYFS records, and details how Mr Jackson suffered neglect and regular physical assaults as well as other bullying behaviours such as verbal humiliation at the hands of his parents. When Mr Jackson left home at 15, it was recommended he be placed in a youth programme based on Great Barrier Island. Ms Cooper refers to serious physical, psychological and sexual abuse that occurred when Mr Jackson participated in this programme. She contends this traumatic experience caused Mr Jackson anxiety, depression, post-traumatic stress disorder , and caused him to self-medicate with substances and to have intense trust issues.
[16] Mr Jackson’s letter outlines maltreatment during his childhood and a variety of emotional challenges. Further, Dr Gordon’s report makes note of childhood abuse and corroborates the information around the effects of this abuse as it relates to anxiety, trust issues (particularly in relation to authority figures), and triggers that give rise to aggressive behaviour.
[17] An offender’s background may justify a reduction in sentence where there is a causal nexus between relevant elements of the background and the offending. It is not necessary for the Court to be satisfied these features of an offender’s past circumstances are a proximate cause of the offending.10 What is required is a broad, holistic approach.11 The assessment should involve an overall examination of how those personal circumstances may have contributed to an offender’s culpability or to their offending.12
10 Carr v R [2020] NZCA 357 at [64].
11 Waikato-Tuhega v R [2021] NZCA 503.
12 At [51].
[18] Discounts for an offender’s upbringing and personal background are highly fact-specific.13 Here, Mr Jackson’s letter indicates the offending in relation to his mother was precipitated by a wish to confront her about the abuse he suffered as a child. Mr Jackson reported that his father had died only months beforehand. He says he had been deceived by his mother and sister concerning funeral arrangements, and was motivated on the spur of the moment to confront his mother about childhood abuse. Because of the self-reported nature of this account and lack of corroborative evidence, care is required before placing too much weight on this account. Nevertheless, there appears to be a causal link between Mr Jackson’s abuse at the hands of his parents, consequences of this abuse, such as his PTSD and his struggle to regulate his emotions when triggered, and the assault on his mother and the accompanying threats.
[19] Arguably, there is an element of impairment of choice giving rise to reduced culpability. Mr Jackson is reported to have suffered extensive trauma, with which he continues to struggle. This appears to be linked to the violence he used on this occasion. There is obviously less of a nexus evident in relation to the other offending.
[20] The Crown accepts there is a causal connection between the childhood abuse suffered by Mr Jackson and the family violence offending and that his personal background should have been taken into account and acknowledged with an appropriate discount. However, it was argued the starting point adopted by the sentencing Judge for both the assault and the threatening to kill charges, and the unlawful taking of vehicle charge, were generous.14 It was submitted the sentence as a whole was not manifestly excessive.
Decision
[21] The starting points for family violence and charges involving the conversion of vehicles will vary greatly depending on the individual circumstances of the particular case and care is required before reliance can be placed on one or two particular sentencing decisions. In this instance, the Crown relied on sentencing
13 Whittaker v R [2020] NZCA 241 at [51].
14 Auckram v Police [2022] NZHC 1446; O’Sullivan v Police [2015] NZHC 2032; and
Shufflebotham v Police [2015] NZHC 3114.
decisions that involved considerably more serious episodes of family violence that were more prolonged and involved greater danger. As I have earlier found, the starting points for the unlawful use of a vehicle and the family violence appear unimpeachable, but I am not confident they could necessarily be categorised as generous.
[22] I consider it was an error not to take into account the mitigating effect of Mr Jackson’s traumatic upbringing, given the accepted linkage with his use of violence. I hasten to add that Mr Jackson’s personal background does not excuse his conduct, but, as properly acknowledged by Mr Alloway on behalf of the Crown, it is a factor which ought to have been taken into account in assessing Mr Jackson’s overall culpability for that particular offending. In the circumstances, a 15 per cent discount would have been appropriate. That results in a sentence of 13 months’ imprisonment. The adjustment of two months is relatively small, but it represents a reduction greater than 10 per cent of the overall sentence and does not therefore amount to tinkering.
[23] Despite the short-term sentence imposed, it is not apparent that a sentence of home detention was available to Mr Jackson, and there is no basis upon which to explore that possibility in the absence of information regarding the technical requirements of such a sentence.15
Result
[24] The appeal is allowed. The sentence of 15 months’ imprisonment imposed in respect of the unlawfully taking a motor vehicle, and threatening to kill charge is quashed and substituted with a sentence of 13 months’ imprisonment. All other sentences and orders imposed in respect of the other charges remain unaltered as do the release conditions imposed by the District Court Judge.
Solicitors:
Crown Solicitor, Christchurch
Copy To:
K May, Barrister, Christchurch
15 Sentencing Act 2002, s 80A.
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