Priday v Police

[2023] NZHC 3107

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2023-454-18

[2023] NZHC 3107

BETWEEN

PAUL PRIDAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 October 2023
Appearances:	J A Younger for the Appellant G M Stone for the Respondent
Judgment:	3 November 2023

JUDGMENT OF PALMER J

Solicitors

J A Younger, Palmerston North

BVA The Practice, Palmerston North

PRIDAY v NEW ZEALAND POLICE [2023] NZHC 3107 [3 November 2023]

What happened?

[1]    Mr Paul Priday, aged 48, and the complainant have had a 13-year on and off relationship. They have a child together. There have been 32 family harm incidents recorded between the two of them before January 2023. Family protection orders were issued against Mr Priday in favour of the complainant in 2012 and 2020.

[2]    In the early hours of 1 January 2023, Mr Paul Priday returned to the tent he was sharing with the complainant, at a campground. He was intoxicated. The complainant decided to leave. Mr Priday got upset with her, grabbed her, and they struggled and fell onto a bed with Mr Priday on top of her. She screamed. He pinned her down. He punched her in the face and body and held his hand over her nose and mouth to stop her yelling. She sustained cuts and bruises to her face and swelling to her lower jaw. For this, Mr Priday has pleaded guilty to assault on a person in a family relationship and breach of a protection order.1 Afterwards, he told her he thought he should kill her this time. She managed to get out of the tent and away from Mr Priday.

[3]    The next day the complainant ended her relationship with Mr Priday. The complainant received texts from Mr Priday and, on 6 January 2023, blocked his number. But he continued to contact her, in breach of the protection order:

(a)On 28 and 29 January 2023 he left voice messages for her, which included messages such as “[y]our fucken dead slut …” and “… [y]our dead mother fucker”. For this he has pleaded guilty to a second breach of a protection order.

(b)On 10 February 2023, he left two messages threatening to ‘get her’ and that she’s “fucken dead”. For this, he has pleaded guilty to a third breach of a protection order.

(c)On 12 February 2023, Mr Priday texted the complainant three times, calling her a slut and saying she will die. For this, he has pleaded guilty to a fourth breach of a protection order.

1      Crimes Act 1961, s 194A; and Family Violence Act 2018, ss 9, 90(a) and 112(1)(a). Maximum penalties of two years’ imprisonment and three years’ imprisonment respectively.

(d)On 13 February 2023, Mr Priday went to the complainant’s home at

2.45 am and stood in her backyard. A couple of hours later he left a voice message saying, “you’re dead cunt and I mean it”. For this, he has pleaded guilty to a fifth breach of a protection order.

(e)All of the threats Mr Priday made to the complainant about killing her from 1 January to 13 February 2023 gave rise to a representative charge of threatening to kill, to which he has pleaded guilty.2

[4]    On 24 July 2023, in the District Court at Palmerston North, Judge J F Moss sentenced Mr Priday to 25 and a half months’ imprisonment:3

(a)The Judge set a global starting point for all the offending of three years’ imprisonment, referring to: the seriousness of the assault and threats to kill; the high risk to the complainant; the number of breaches of the protection order; the detention of the complainant in a tent; and punches to the head.

(b)The Judge uplifted the starting point by six months for Mr Priday’s previous offending, including nine convictions for breaching protection orders, four male assaults female offences, one assault with a weapon, one threat to kill, and one wilful damage, as well as the fact that the threat to kill occurred while he was on, or just after he was on, bail.4

(c)The Judge discounted the sentence by 25 per cent for an early guilty plea and by a further 20 per cent for Mr Priday’s deprived and abusive upbringing, his drug and alcohol abuse, his neurological impairments, his participation in restorative justice, and for showing genuine remorse for his offending.5 Much of this was based on the report received under s 27 of the Sentencing Act 2002.

2      Crimes Act, s 306. Maximum penalty of seven years’ imprisonment.

3      New Zealand Police v Priday [2023] NZDC 15438 at [11].

4 At [7].

5      At [8] and [11].

[5]    Mr Priday appeals. Ms Younger, for Mr Priday, submits the end sentence was manifestly excessive for five specified reasons. Mr Stone, for the Police, submits it was not and disputes four of the reasons. I deal with each of the points in turn.

Should the appeal be allowed?

[6]    Under s 250(2) of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed. I must be satisfied that the sentence is manifestly excessive.6 The focus is on whether the end sentence imposed by the Judge was within range.7

1Starting point

[7]    First, Ms Younger submits the starting point was too high, based on comparable cases,8 and taking into account Mr Priday’s intoxication, mental state, and background. Similar cases should be dealt with in a similar way. She submits the 1 January offending deserves a starting point of 12 to 18 months, and the other four breaches of protection orders justify an uplift of 12 months, leading to a global starting point of two to two and a half years.

[8]    Mr Stone submits three years is within range as an appropriate starting point having regard to the circumstances here and in comparison with other cases. A starting point of 18 months is justified by the 1 January offending alone. The breaches of the protection order contain seriously aggravating features, including going to the complainant’s house at night which is psychological abuse.

[9]    I agree with the Crown’s submissions. The offences in the cases cited by Ms Younger were less serious than those here. The assault here involved attacks to the head, physical injuries, and an attempt to detain the complainant. Looking at the features of the assault, and the comparable cases cited by both parties, I agree with the Crown that the assault alone would have justified an 18-month starting point. I also

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], and [35].

7      Ripia v R [2011] NZCA 101 at [15].

8      Smart v Police [2016] NZHC 3092; and Mitchell v R [2016] NZCA 299.

agree a 12-month starting point would have been well justified for threatening to kill given the pre-meditation, the link to actual violence, and the frequency of the threats.9 A 12-month starting point would also have been justified for the breaches of protection order, which involved violence or threatened violence.10 Intoxication is not a mitigating factor.11 And background is examined later in the sentencing process. The global starting point of three years was within the range available to the Judge.

2Double-counting

[10]   Second, Ms Younger says the Judge double-counted the previous convictions in setting the starting point and then applying the uplift.

[11]   Mr Stone submits that, as she should, the Judge considered previous breaches in assessing the starting point for the new breaches of protection order. She identified those offences separately from the violent offending.

[12]The Judge’s reasoning was sequenced as follows:

(a)She noted there had been a number of threats to kill, over a few weeks.12

(b)She considered the threat to kill contained in the breach of protection order was extremely serious.13

(c)She noted that Mr Priday had faced nine breaches of protection orders and now faced five additional breaches. She said the five breaches, the single threat to kill, and the nasty hiding “up the starting point”.14

(d)She stated, “before I consider the previous offending, I consider the starting point is three years”.15

9      Haynes v Police [2022] NZHC 950.

10     Morris-Stewart v Police [2016] NZHC 1030.

11     Sentencing Act 2002, s 9(3).

12     New Zealand Police v Priday, above n 3, at [3].

13 At [4].

14 At [5].

15 At [6].

(e)She then considered the previous offending.16

[13]   Understood in this context, I do not consider the Judge double-counted the breaches of protection order. She referred to the previous breaches as a way of introducing, and assessing, the current breaches. But she set a starting point for the current breaches before considering the previous offending.

3There was no offending on bail

[14]   Third, Ms Younger submits there was no offending while on bail. Mr Stone recognises this was an error, as do I. But he submits the uplift of six months, for this and Mr Priday’s previous convictions, while stern, was not manifestly excessive. I agree with that too. An uplift is warranted for previous offending which indicates some tendency to commit the particular type of offence which is before the court.17 An uplift is a way to deter an offender from continuing the pattern of offending.18 The uplift must not be disproportionate, taking into account such factors as the number of offences, their seriousness, the sentences previously imposed, and the time since the last conviction. Here, the most recent sentence for Mr Priday’s family violence was two and a half years’ imprisonment in January 2020. While stern, I do not consider the uplift of six months, or 16 per cent, is outside the range available to the Judge.

4Discounts

[15]   Fourth, Ms Younger submits the Judge did not allow a sufficient discount for Mr Priday’s mental health, rehabilitation efforts, remorse, restorative justice, and cultural factors. She submits the following discrete discounts should have been given: 20 per cent for his many background and cultural factors; and 10 per cent for his steps towards rehabilitation, mental health, remorse, and restorative justice. She submits the Judge did not take the s 27 report into account. She relies on Pene v R, where there was insight, rehabilitation efforts, an attempted restorative justice conference, and Radich J increased the discount from 15 per cent to 20 per cent for background factors. and discounted a further five per cent for efforts at rehabilitation and remorse.19

16 At [7].

17     Jones v R [2021] NZCA 402 at [33] citing Beckham v R [2012] NZCA 290 at [84]–[85].

18     Beckham v R, above n 17, at [84].

19     Pene v R [2023] NZHC 1234 at [31]–[32].

Ms Younger also relies on Kolofale v R, where a 20 per cent discount for background and cultural factors was upheld and there was an additional seven per cent discount.20

[16]   Mr Stone submits that Kolofale v R and Pene v R can be distinguished from this case. While Mr Priday’s reflection is commendable, he took no concrete steps towards rehabilitation other than requesting recommencement of ACC counselling, which he has not commenced. The s 27 report was comprehensive, the Court considered it, and the 20 per cent discount is appropriate.

[17]   I agree that giving discrete discounts for different factors is best practice, in the interests of transparency and in acknowledging the importance of remorse and rehabilitation. But Ms Younger’s real point is that the amount of the overall discount is wrong. The Judge considered all the relevant factors, with reference to the reports before her.21 Rehabilitative steps taken after sentencing were not before the Judge. The 20 per cent total discount was within the range available to the Judge. For example, that was the total discount given by the Supreme Court to Mr Berkland for a deprived background, addiction, and efforts at rehabilitation.22 There is a limit to which other cases of discounts are helpful because of the different personal circumstances in each case. I do not consider the discounts given for different circumstances in Kolofale v R or Pene v R cast doubt on this sentence.

5Period on EM bail

[18]   Fifth, Ms Younger submits the Judge erred in not making any adjustment for the period from 12 June 2023 to 19 July 2023 which Mr Priday spent on electronically-monitored (EM) bail at his father’s house who was rapidly declining after a stroke. Mr Priday complied with the conditions. However, the occupants withdrew their consent due to a strained relationship with his stepmother, and Mr Priday voluntarily returned to prison.

20     R v Kolofale [2022] NZCA 74.

21     New Zealand Police v Priday, above n 3, at [8]–[9] and [11].

22     See Berkland v R [2022] NZSC 143 at [162]–[163].

[19]   Mr Stone submits that he could not take issue with some credit being given for the four and half weeks spent on EM bail. But it is up to the Court to assess and does not make a material difference.

[20]   I do not consider the Judge erred in not giving a discount for this period. A discount is not always given for time on EM bail.23 The Court considered it. It was within the Judge’s discretion not to give a discount for such a short time.

Result

[21]   Overall, while there was an error in the District Court sentencing in respect of offending while on bail, its effect was not material. The starting points, uplifts, and discounts were all available to the Judge. The sentence was consistent with the overall totality of the offending. The sentence was not manifestly excessive. I dismiss the appeal.

Palmer J

23     Sentencing Act, ss 9(2)(h) and 9(3A); and Longman v Police [2017] NZHC 2928 at [7] and [12]-[13]; and Paora v R [2021] NZCA 559 at [50]–[52].