Pollard v Police
[2019] NZHC 2611
•14 October 2019
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2019-425-000022
[2019] NZHC 2611
BETWEEN GEORGE CRAIG POLLARD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 October 2019 Appearances:
J K Fraser for Appellant
R W Donnelly for Respondent
Judgment:
14 October 2019
ORAL JUDGMENT OF GENDALL J
POLLARD v NEW ZEALAND POLICE [2019] NZHC 2611 [14 October 2019]
Introduction
[1] Following his guilty plea, the appellant, Mr Pollard was convicted and sentenced in the District Court at Invercargill on one charge of doing a threatening act, in contravention of section 308(a) of the Crimes Act 1961. He now appeals the sentence of 12 months’ supervision, 100 hours’ community work and the order to pay
$800 emotional harm reparation imposed on him by Judge Brandts-Giesen on 21 May 2019.
[2] Section 308(a) provides that everyone is liable to imprisonment for a term not exceeding three months who, with intent to intimidate or annoy any person, breaks or damages or threatens to break or damage any dwelling house.
Facts
[3] Mr Pollard and the victim here were in a de facto relationship for approximately 20 years. They have four children together.
[4] The offending occurred in the context of that domestic relationship. In breach of a police safety order, the appellant had gone to the victim’s home address and punched several holes in the internal walls of the house. The victim had awoken to the appellant standing over the bed.
[5] Specifically, at 1.40 am on 8 January 2019, the police were called to the victim’s address as the victim wanted Mr Pollard who was there removed. The police came and did note there were several holes in the internal walls of the property. The appellant was served with a three-day police safety order.
[6] Later, the victim rang police telling them that Mr Pollard had returned to the address, entered and gone into her bedroom, where she woke to find him standing over the bed. He punched the walls several times again, making more holes.
District Court sentencing decision
[7] Turning now to the District Court sentencing decision, Judge Brandts-Giesen sentenced the appellant to 12 months’ supervision on the conditions set out in the pre- sentence report, namely that:
(a)The appellant was to undertake and complete the non-violence programme and abide by the rules of the programme to the satisfaction of a probation officer; and
(b)The appellant was also to attend and complete an appropriate alcohol and drug programme to the satisfaction of a probation officer. The specific details were to be determined by the probation officer.
[8] The Judge also sentenced the appellant to 100 hours of community work, and required an emotional harm payment of $800 to be made to the complainant.
Principles on appeal
[9] I turn now to the principles on appeal. Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.2 It is only appropriate for the Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached.”4
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
3 Ripia v R [2011] NZCA 101 at [15].
4 Skipper v R [2011] NZCA 250 at [28].
The ground of appeal
[10] The sole ground of appeal outlined in the Notice of Appeal here is that the sentence imposed is “manifestly excessive”. The appellant suggests the sentence was at the higher end of the available options and when viewed together (i.e. 12 months’ supervision, 100 hours’ community work and $800 emotional harm reparation) he submits this sentence is excessive and should have been in the order of nine months’ supervision, $400 emotional harm reparation and 50 hours’ community work.
[11] The appellant bases this submission primarily on his assertion that the holes in the wall happened prior to the issue of the police safety order and that the “incident”, which lead to the Police being called should have taken this into account. The appellant accepts, however, that he has pleaded guilty to the summary of facts as provided which outlines the different position which I have outlined above.
Analysis
[12] At the outset, I need to say that this court is not in a position to revisit the facts on the basis of which the appellant has pleaded guilty.
[13] On the face of it, the sentence of supervision (which is one essentially focussing on an offender’s rehabilitative needs) coupled with limited community work and the order to pay emotional harm reparation was one at the lower end of the spectrum of sentences imposed for offending relating to domestic violence. Although the present offending by the appellant likewise was at the lower end, the sentence was of a type supported by the Department of Corrections, and one which would provide him with assistance in ensuring such offending did not reoccur. As Judge Brandts- Giesen in the District Court put it, supervision would hopefully help “curb the worst of [the appellant’s] tendencies, including those of alcohol.”5
[14] The appellant has a history of alcohol related offending, predominantly driving offending, and no rehabilitative sentence has been imposed in the past. I am satisfied
5 New Zealand Police v Pollard [2019] NZDC 13008 at [13].
here that a sentence of supervision, combined with what I see as modest punitive element, was an appropriate sentence.
[15] Although it might be seen as possible that the supervision could have been imposed for a lesser duration than 12 months, the conditions imposed (the standard conditions under s 49(1) of the Sentencing Act 2002, and two special conditions), as I see it, would not necessarily place significant obligations on the appellant for the later part of his sentence.
[16] Given the facts as they stand, I conclude that the sentence imposed of 12 months’ supervision coupled with what, in my view, is limited community work and an order to pay $800 emotional harm reparation is quite within a properly justifiable range here and, indeed, as I have noted already, it is at the lower end of the spectrum of sentences imposed for offending relating to domestic violence. The sentence imposed is not manifestly excessive.
Conclusion
[17]For all these reasons this appeal is dismissed.
...................................................
Gendall J
Solicitors:
John K Fraser Law Limited, Invercargill Preston Russell Law, Invercargill
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