Pahulu v Police
[2020] NZHC 153
•13 February 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-000550
[2020] NZHC 153
BETWEEN MONU TANIELA PAHULU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 February 2020 Appearances:
S Walker for the Appellant
K Fitzgibbon for the Respondent
Judgment:
13 February 2020
JUDGMENT OF MOORE J
[Appeal against sentence]
This judgment was delivered by me on 13 February 2020 at 2:00 pm.
Registrar/ Deputy Registrar Date:
PAHULU v NEW ZEALAND POLICE [2020] NZHC 153 [13 February 2020]
Introduction
[1] On 22 November 2019 Judge E Paul, in the District Court at Auckland, sentenced Mr Pahulu to 17 months’ imprisonment following his pleas of guilty on the nine following charges:
(a)breach of a protection order (x 2);1
(b)breach of release conditions (x 2);2
(c)breach of community work;3 and
(d)failing to answer District Court bail (x 4).4
[2] Mr Pahulu appeals his sentence on the basis that both the starting point and the uplift for previous convictions resulted in a manifestly excessive sentence. He also claims the Judge erred by failing to grant him leave to apply for home detention.
The offending
Breaches of protection order
[3] The victim is Mr Pahulu’s ex-partner. The couple have two children together. On 18 December 2016, the victim was granted a final protection order against Mr Pahulu.
[4] The first breach occurred on 5 February 2019 at the family home. Although the summary of facts is silent on the point, it seems that the couple were residing together at the time. The conditions to the protection order permitted this if the
1 Family Violence Act 2018, ss 90(a)(iv) and 112(1)(a): Maximum penalty three years’ imprisonment. The first breach took place in February 2019, so it is governed by the Domestic Violence Act 1995 (repealed on 1 July 2019 by the Family Violence Act 2018), ss 49(1)(b) and 49(3). The second is governed by the Family Violence Act 2018. The maximum penalty is three years’ imprisonment under both Acts.
2 Sentencing Act 2002, s 96(1): Maximum penalty one year imprisonment.
3 Sentencing Act 2002, s 71(1)(a): Maximum penalty one year imprisonment.
4 Bail Act 2000, s 38(a): Maximum penalty one year imprisonment.
protected person expressly consented. Consent could be revoked by the protected person at any time.
[5] Mr Pahulu attempted to initiate an argument with the victim following which she told him to leave. He refused and remained inside the house. Further requests that he leave were ignored. In the face of these refusals, the victim left the address and flagged down a passing Police patrol. The Police found Mr Pahulu hiding under a bed in one of the bedrooms.
[6] The second breach occurred some seven months later on 27 September 2019. Mr Pahulu arrived at the victim’s home while she was hanging up the washing. It seems that by this time Mr Pahulu was no longer residing at the address. As he walked past her, the victim asked Mr Pahulu what he was doing there. He ignored her and went inside. The victim followed. She told him he was not welcome and asked him to leave. An argument followed. Unable to get Mr Pahulu to leave, the victim left and, it seems, called the Police and waited down the street for them to arrive.
Breach of community work
[7] This charge relates to Mr Pahulu’s failure on 24 November 2018 to report for work after he had been sentenced to community work.
Breach of release conditions
[8] On 10 January 2017 Mr Pahulu was sentenced to 22 months’ imprisonment on charges including male assaults female, speaking threateningly, contravening a protection order, failing to answer bail and breach of community work. On 13 January 2017 he was released subject to conditions. One of those conditions was that he attend a departmental programme. He was expelled from the programme just a week or so later as a consequence of multiple breaches. Another condition of release was that he not associate with the victim. He breached that condition on an occasion different from those which are the subject of the current appeal.
Failure to answer District Court bail
[9] Four charges reflected this offending. Neither counsel was able to assist with any specifics or detail around the offending nor is that level of specificity necessary to dispose of this appeal.
Previous criminal history
[10] Mr Pahulu, at the age of 35, has a very extensive criminal history. This includes seven convictions for family violence. He has 23 convictions for breaching various Court orders and three convictions for breaching a protection order (in 2012 and 2016). In 2017 he was sentenced to 22 months’ imprisonment for a variety of offences committed during 2016 and 2017. These included charges of male assaults female, failing to answer District Court bail, breaching community work and breaching release conditions.
[11] It is understood that the domestic violence offences and the breaching of a protection order related to the same victim as the later charges which are the subject of this appeal.
Victim impact statement
[12]In respect of the breach in February 2019 the victim stated:
I feel extremely unsafe as my protection order has not done anything to stop Monu from coming over. He lets himself in or lock me in the house so I can’t leave. He’s good with the kids so I don’t understand why he is like this and he comes from a good family.
District Court decision
[13] The breaches of the protection order were taken as the lead offences. The sentence of 17 months’ imprisonment was constructed in the following way:
(a)a starting point of nine months’ imprisonment for breaching the protection order in February 2019;
(b)a three month uplift for breaching the protection order in September 2019;
(c)a three month uplift on account of the other charges;
(d)a one month uplift on review to account for the uncompleted community work; and
(e)a six month uplift for the history of offending against the victim, and previous convictions.
[14] This led to a total of 22 months before the guilty plea discount. The Judge made a five-month reduction, resulting in aa final sentence of 17 months’ imprisonment.
[15] The Judge noted that Mr Pahulu’s counsel had attempted to secure an EM address but that had not proved possible.
[16] The Judge concluded by imposing standard and special release conditions six months past Mr Pahulu’s sentence end date.
[17]All sentences were ordered to be served concurrently.
Approach to appeal
[18] Section 250 of the Criminal Procedure Act 2011 applies. Pursuant to that provision the Court must allow the appeal if it is satisfied that:
(a)for any reason there was an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[19] In any other case the Court must dismiss the appeal.5 This section confirms the approach taken by the Courts under the Summary Proceedings Act 1957 where the Court said: 6
(a)there must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”;
(b)to establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court; and
(c)it is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.
[20] This Court will not intervene where the sentence is within the range that can be properly justified.7
Submissions
Appellant
[21] Mr Walker, for Mr Pahulu, first submits that the combined starting point of 12 months’ imprisonment for the two breaches of the protection order was excessive. He describes the breaches as lower end and suggests more moderate, albeit still stern, sentences should have been imposed; six months’ imprisonment for the first breach with an uplift of two months to take into account the second breach, a total of eight months’ imprisonment.
[22] He submits that in setting a 12 month starting point the Judge must have factored in Mr Pahulu’s relevant previous convictions. By adding a six month uplift for previous convictions the Judge must have double counted and thus erred.
5 Criminal Procedure Act 2011, s 250(3).
6 Yorston v Police HC Auckland, CRI-2010-404-164, 14 September 2010 at [13]-[15].
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[23] Mr Walker submits that the appropriate final sentence would have been to uplift the eight months by three months for the other charges, one month for the uncompleted community work, and three months on account of Mr Pahulu’s previous convictions. With aa discount for the guilty plea of three months, this would lead to a final end sentence of 12 months’ imprisonment.
[24] Mr Walker also takes issue with the six month standard and special release conditions from the sentence end date. Assuming the Judge was referring to the sentence expiry date, calculated to be 23 February 2021, his standard and special release conditions would expire on 23 August 2021. Given Mr Pahulu’s release date will be 10 June 2020 the release conditions will endure for a further 14 months after Mr Pahulu’s release.
[25] Finally, Mr Walker points out that the Judge gave no consideration to whether a sentence of home detention should be imposed. He submits that under s 80I(2) of the Sentencing Act 2002 (“the Act”) the Judge should have made an order granting Mr Pahulu leave to apply for cancellation of the sentence of imprisonment and the substitution of a sentence of home detention if a suitable residence was identified.
Crown
[26] Ms Fitzgibbon, for the Crown, submits that the 12 month starting point, while plainly at the upper available limit, were nonetheless within range. She describes the breaches as “moderately serious”. She submits that the six month uplift for Mr Pahulu’s extensive criminal history was also appropriate.
[27] As for the release conditions, Ms Fitzgibbon submits that Mr Pahulu’s chronic history of non-compliance with Court orders and the continuing risk he poses to the victim made the imposition of a maximum period of release conditions necessary.
[28] On the issue of whether leave to apply for home detention ought to have been granted, Ms Fitzgibbon submits that although the Judge did not explicitly address this issue in his sentencing notes it can be taken that he was not prepared to make such an order for the same reasons.
Analysis
[29] In Jackson v Police Hinton J undertook a helpful analysis of sentencing levels involving breaches of protection orders.8 She concluded, and I agree, that sentences for breaching protection orders vary to a large extent. For that reason, a case-by-case comparison is difficult because the offending is so variable and is always highly contextual.9
[30] However, having regard to the cases referred to in Jackson, as well as those relied on by counsel in the present case, I cannot but conclude that a starting point of nine months’ imprisonment for the first breach uplifted by three months for the second was manifestly excessive.
[31] I do not regard Mr Pahulu’s breaches as “moderately serious”. There was no physical violence, threats of violence, harassment or psychological abuse, as is common with this type of offending. On the 5 February 2019 breach the parties were arguing, leading the victim to extricate herself from the disagreement and flag down a passing Police patrol. This does not seem to be a case where the offender’s presence with the victim was prohibited by the order. Instead, Mr Pahulu was lawfully in the victim’s company but refused to leave when asked and persisted in that refusal. In my view that conduct places the offending towards the lower end of culpability. On the second breach on 27 September 2019 it would appear that Mr Pahulu did not engage with the victim at all. But, again, he refused to leave when asked to do so. Again, this is relatively low level offending of its type.
[32] Mr Pahulu’s conduct is in stark conduct to the authorities cited by the Crown. For example, in Irving v Police a 10 month starting point was upheld for two breaches of a protection order where the offender called the victim 23 times over approximately
48 hours, then went to her address and banged on her windows at night.10
Dunningham J described the 10 month starting point as being at the upper limit of the appropriate range.
8 Jackson v Police [2019] NZHC 281.
9 At [41].
10 Irving v Police [2017] NZHC 3085.
[33] In Mataiti v Police a 16 month starting point was upheld for two breaches of a protection order.11 On the first occasion the appellant, enraged when the victim would not give him a cigarette, became verbally abusive, refused to leave the property and smashed a hole in a door. He left the property with the couple’s three-year-old child when he realised the victim was calling the Police. On the second breach the appellant and the victim became engaged in a heated argument. He refused to leave the property despite her repeated requests. There was some pushing and shoving between the parties which was sufficiently evident to lead the neighbours to call the Police. Health J observed that while the starting point was stern there was no basis to interfere with it on the grounds of manifest excess. Again, the offending in Mataiti is a good deal more serious than the present.
[34] In Carlyon v Police the appellant was sentenced on two breaches of a protection order.12 He twice entered the victim’s house without her invitation and refused to leave while verbally abusing her. The sentencing Judge took a starting point of 18 months with an uplift of six months on account of the appellant’s history. Venning J found that the starting point was appropriate, noting that prior convictions for breaches of protection orders are integral to the assessment of the gravity of the offending. He noted, however, that when applying an uplift for previous offending a sentencing Judge must be careful not to double count the defendant’s convictions for breaching protection orders. Venning J described the appellant’s criminal history as “an appalling record of 56 convictions for assault and trespass”. Notwithstanding, he considered the uplift of six months was excessive when taken together with the starting point. He reduced the uplift to three months.
[35] Mr Pahulu’s past breaches of the protection order must affect my assessment of the gravity of his offending.13 Even so, I am satisfied that the starting point of 12 months was too high because of the relatively low level culpability of the index offending. In my view, having regard to maximum penalty of three years’ imprisonment, a sentence of six months’ imprisonment for the first breach, uplifted by three months for the second appropriately reflects the totality.
11 Mataiti v Police [2014] NZHC 1675.
12 Carlyon v Police [2017] NZHC 2526.
13 Mitchell v R [2013] NZCA 583 at [12].
[36] The sentencing Judge’s uplift of three months’ imprisonment for the remaining charges cannot be criticised. Indeed, Mr Walker responsibly accepts as much. He also accepts that the one month term of imprisonment imposed on Mr Pahulu for his failure to complete the community work as ordered was appropriate.
[37] However, in contrast, the uplift of six months’ imprisonment for Mr Pahulu’s previous convictions is, in my view, excessive. While the Judge rightly described that history as “bad”, particularly in relation to the offending against this particular victim, such an uplift, from a starting point of 16 months is unsustainable. On this topic the Court of Appeal observed in Tamihana v R:14
“Previous convictions can be relevant, particularly where the previous convictions indicate a tendency to commit the type of offending for which the offender is being sentenced. Issues of deterrence and, in some cases protection of the public may require an uplift for previous offending. Similarly, previous convictions may bear on the issue of character. Nevertheless, the Court must be careful to see that a sentence for a person who has been previously convicted is not increased merely by reason of those previous convictions. A prisoner shall not be sentenced again for an offence which he has already expiated.”
[38] In Tamihana the six month uplift for prior convictions from a starting point of 18 months represented 33 per cent of the starting point. The Court of Appeal regarded such an uplift as excessive and substituted a three month uplift.15
[39] In the present case the uplift is even greater, equating to a 38 per cent increase on the 16 month starting point. In my view a three month uplift would have been appropriate to recognise Mr Pahulu’s history of other types of family violence offending.
[40] Unsurprisingly Mr Walker takes no issue with the Judge’s discount of five months on account of Mr Pahulu’s plea of guilty. On a 22 month provisional sentence this represents a discount of nearly 23 per cent in the context of pleas which were not entered at the first practical opportunity.
14 Tamihana v R CA672/2014, [2015] NZCA 169 at [27].
15 Referring to Beckham v R [2012] NZCA 290 at [84] and Tiplady-Koroheke v R [2012] NZCA 477 at [23]-[25].
[41] This leaves the question of whether the Judge should have granted leave under s 80I of the Act for Mr Pahulu to apply for home detention. In this context it is necessary to take into account what the Judge was confronted with at the time of sentencing. He expressly acknowledged Mr Walker’s attempts to obtain a suitable address for an electronically-monitored community-based sentence. He recorded that it had not proved possible. At no stage did Mr Walker ask the Judge to grant leave to apply. In those circumstances it is difficult to criticise the Judge. At the hearing I asked counsel to address me on whether it is mandatory for a sentencing Judge to consider leave to apply for home detention when imposing a short sentence of imprisonment, that is a sentence of less than two years.
[42] I record my gratitude to Ms Fitzgibbon for her helpful supplementary, written submissions on the point. She has drawn my attention to a recent judgment of this Court in Papa v Police.16 There Palmer J held that the failure to consider leave to apply for home detention was a material error. The issue of whether to grant leave in terms of s 80I of the Act must be addressed and reasons given.
[43] Given my finding that the sentence was manifestly excessive, it is necessary for me to set a different sentence and turn my mind to whether leave to apply for home detention should be granted. I am not prepared to make an order under s 80I(2) of the Act. Since sentencing and the filing of this appeal Mr Walker has attempted to identify an appropriate and suitable home detention address. He tells me that the only available option is Mr Pahulu’s ex-partner. Plainly that is not appropriate. On the question of whether Mr Pahulu would be a suitable candidate for home detention I accept that he has not previously been sentenced to home detention and thus his compliance with such a sentence is more difficult to evaluate. I also accept Mr Walker’s submission that there are examples of offenders who have a history of poor compliance with Court orders who, nonetheless, succeed in completing a sentence of home detention without breach.
[44] However, in this case, Mr Pahulu’s previous convictions are so extensive, both in time and in type that no Court could have confidence that he would comply with
16 Papa v Police [2019] NZHC 1309.
any conditions imposed. This pessimism is supported by the comments of the author of the pre-sentence report. As already noted, Mr Pahulu’s previous history from 2002 to the present is peppered with numerous breaches of various Court orders and sentence conditions.
[45] Finally, similar observations may be made as to the length of the standard and special release conditions. I agree with Ms Fitzgibbon that given Mr Pahulu’s history of non-compliance with Court orders, including special post-release conditions, and the risk he poses to the victim, the imposition of the maximum period of release conditions is appropriate. His post release conditions are not particularly onerous and are aimed to assist Mr Pahulu with his reintegration and to prevent recidivism.
Conclusion
[46] Thus, in summary, the appeal is allowed and the sentence adjusted in the following ways. The starting point for the protection order breaches is nine months with an uplift of three months for the other seven charges, one month on the review and three months on account of previous convictions. This totals 16 months to which a 23 per cent discount is given for the guilty pleas, bringing the final sentence to 12 months.
Result
[47]The appeal is allowed.
[48] On each of the charges of contravening a protection order the sentence of 17 months’ imprisonment is quashed and a sentence of 12 months’ imprisonment substituted.
[49] All other sentences remain intact including the imposition of the standard and special release conditions.
[50]No order is made in terms of s 80I of the Act.
[51]All sentences are to be served concurrently.
Moore J
Solicitors:
Mr Walker, Auckland
Crown Solicitor, Auckland
9
7
0