Prince v Police

[2019] NZHC 1742

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-34

[2019] NZHC 1742

BETWEEN

BRADLEY PRINCE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	23 July 2019
Appearances:	D A Ewen for Appellant M L Paish for Respondent
Judgment:	23 July 2019

JUDGMENT OF COOKE J

[1]    On 7 June 2019 the appellant, Bradley Prince, was sentenced before Judge Tompkins in the District Court at Hutt Valley to seven months’ imprisonment for two charges of breach of a protection order.1

[2]    Mr Prince appeals his sentence on the grounds the sentence was manifestly excessive because the Judge erred in taking into account impermissible considerations and by failing to take account of the principle of totality.

Factual background

[3]    The appellant is the subject of a protection order issued on the application of his adoptive father. The order extends protection to Mr Prince’s birth mother, the victim in this matter.

1      New Zealand Police v Prince [2019] NZDC 11268; Domestic Violence Act 1995, ss 19 and 49(1)(a), maximum penalty three years’ imprisonment.

PRINCE v NEW ZEALAND POLICE [2019] NZHC 1742 [23 July 2019]

[4]    Mr Prince was adopted out at age 16. When he was 25 he reengaged with his birth mother. The relationship quickly deteriorated when Mr Prince’s drug use, alcohol and mental health problems began to surface. Mr Prince is now 42 years old and it is evident the relationship has not improved.

[5]    The summary of facts states there have been at least three previous family harm incidents between the defendant and the victim. The criminal history does not record any convictions for family violence. The reference in the summary of facts may include the two previous convictions for breach of protection orders in 2012 and 2016. The current charges relate to two breaches of this protection order for entering and remaining on land occupied by a protected person without consent.

[6]    On 3 December 2018 the appellant went to the victim’s house. He approached the victim in her driveway and asked for a cigarette. She refused his request and repeatedly told him to leave. He refused to leave and remained on the property until she called the Police. He was arrested and charged with breach of a protection order but granted bail on 4 December 2018.

[7]    On 7 January 2019 Mr Prince again went to the victim’s house without permission. In explanation he said “yes I was there, I have been going around everyday for the past 14 weeks”. He was arrested and charged with breaching a protection order and was remanded in custody.

[8]    On 13 March Mr Prince received a sentence indication of seven months’ imprisonment with release conditions.2 He entered guilty pleas that day. He unsuccessfully applied for bail on 16 April, and unsuccessfully attempted to appeal the decision refusing to grant bail on 18 April.

District Court decision

[9]    The District Court decision is brief and does not explain how the Judge reached the end sentence. After briefly outlining the charges and factual background, the Judge noted the s 38 report and pre-sentence report before the Court, and then held:

2      New Zealand Police v Prince DC Hutt Valley CRI-2019-096-894, 13 March 2019.

[4]        … The pre-sentence report recommends imprisonment which is inevitable, given the circumstances and notes for a variety of reasons Mr Prince is considered at high risk of re-offending and unlikely meaningfully to engage in any form of departmental rehabilitative programme. Only two special release conditions are proposed, both of which are explicitly designed to protect Mr Prince’s mother from his repetitive, disruptive and traumatic intervention into her life.

[5]        In those circumstances, on each of the two charges to which guilty pleas were entered on 13 March 2019, Mr Prince is convicted and sentenced to seven months’ imprisonment with standard and special release conditions as per the pre-sentence report to extent to six months past his sentence end date.

Approach to appeal

[10]   This appeal is governed by subpart 4 of Part 6 of the Criminal Procedure Act 2011. A first appeal under subpart 4 must be determined in accordance with s 250. Section 250 provides:

(2)The first appeal court must allow the appeal if satisfied that—

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

(3)The first appeal court must dismiss the appeal in any other case.

[11]   The focus will be on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.3

Analysis

[12]   Mr Ewen for the appellant stresses the mental health issues that are part of  Mr Prince’s background. He suggests a starting point of four months was more appropriate given these issues and the non-violent nature of the offending. Mr Ewen also argues the Judge erred in taking into account the victim’s allegations of past offending against her. As the judgment appealed against does not provide details as to the starting point, uplifts, or discounts, the key issue is whether the end sentence was

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

within range. The absence of reasoning does not by itself mean the appeal should be allowed.4

[13]   In Morris-Smith v New Zealand Police Wylie J summarised the general approach to the offence of breaching a protection order in the following way:5

[14]    There is no tariff case for breaching a protection order.6 The maximum penalty for this offence was two years’ imprisonment, but that maximum penalty has … been increased to three years’ imprisonment.7

[15]    The Court of Appeal has stated that the Courts should uphold the integrity of protection orders and respond sternly to those who flout their force and effect.8 Orders are intended to ensure that the recipient of the protection order is secure and inviolate. Repeated breaches of protection orders call for a condign sentencing response. Where there has been repeat offending over a brief period of time, a short term of imprisonment is the proper response.9

[14]              The offence potentially involves a wide range of conduct. For non-violent breaches of a protection order in circumstances where the offender has a history of breaching orders the starting point generally begins from around four months imprisonment, with the starting point increasing depending on the circumstances such as the threat of violence. The following cases may provide some general assistance although the present case is one that needs to be addressed on its own circumstances, which are somewhat unusual:

(a)Irvine v Police:10 The appellant and the victim had been in an on and off relationship for three years, before a final protection order was issued preventing contact between the two. Four days later the victim received 23 telephone calls from the defendant. She answered one of those calls in order to tell the defendant to leave her alone. A few days later the defendant went to the victim’s home, where he banged multiple times on the lounge window of the house before leaving the property. The District Court Judge adopted a starting point of 10

4      See R v Jefferies [1999] 3 NZLR 211 at [16].

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

6      Apineru v Police [2014] NZHC 1969 at [15].

7      Domestic Violence Amendment Act 2013, s 11.

8      R v Cartwright CA175/02, 27 August 2002 at [20]-[21].

9      R v Nathan CA209/06, 29 November 2006 at [25].

10     Irvine v Police [2017] NZHC 3085 (attached).

months’ imprisonment, referring to the history of the defendant’s offending against the victim and concerns for her safety. On appeal to the High Court the Judge upheld the starting point, noting that although the appellant did not have a history of breaching protection orders, he breached the order within days of its imposition in a flagrant and continuing manner, while subject to a sentence for earlier offending. The Judge considered the starting point was at the upper limit of the appropriate range but was available to the District Court Judge.

(b)R v Mitchell:11 The defendant was convicted of four charges of breaching a protection order against her former partner when she left a voice mail message. She had a substantial history of breaching protection orders. The unthreatening nature of the voice mails meant that the offending was regarded as not particularly serious. The sentencing Judge took a starting point of eight months’ imprisonment but deducted four months to reflect totality, leaving an end sentence of four months’ imprisonment. On appeal the Court of Appeal noted the starting point of eight months was towards the top of the range, but was an available response given the defendant’s relentless and continuous behaviour.

(c)Morris-Stewart v New Zealand Police:12 The appellant was convicted of one charge of breaching a protection order, one charge of wilful damage and one charge of breaching release conditions. The beneficiary of the protection order was the defendant’s former partner. The defendant sent the victim numerous text messages over a period of a day. He had a history of family violence charges against the victim and a history of breaching protection orders. The content of the messages was threatening and abusive. A starting point of 12 months’ imprisonment adopted on appeal, with an uplift of three months for breach of release conditions and one month for the charge of wilful

11     Mitchell v R [2015] NZCA 442, (2015) 30 FRNZ 534.

12     Morris-Stewart v Police, above n 5.

damage.     After discounts the end sentence was 15 months’ imprisonment.

[15]              Here there was no violence, or threat of violence involved in the offending. There is also not a significant proven history of breaching protection orders, with only two previous convictions of breaching protection orders in 2012 and 2016. There are references to other suggested breaches of the protection order in the memorandum to the Court from the Victim Advisor. The Judge does appear to have taken this into account as it referred to his equally brief sentencing indication. Such allegations are not appropriately taken into account unless recorded in the summary of facts.13 The summary of facts refers to there being three previous family harm incidents. No particulars are provided in order to understand what that is referring to. I nevertheless accept the circumstances here suggest a pattern of behaviour, particularly given the two previous breaches of the protection order. I also consider the offending aggravated by the fact the second offence occurred not long after the first, and while Mr Prince was on bail for the first charge. In light of the aggravating factors I consider a starting point of six months’ imprisonment is appropriate.

[16]              In terms of mitigating circumstances Mr Prince has been diagnosed with Schizo Affective Disorder Bipolar type and with an opiate dependency. He has been working with community mental health and substance abuse programmes to little success. The pre-sentence reports estimates it is unlikely that he will be able to meaningfully engage in any form of departmental programme. He is assessed at a high likelihood of reoffending but at a low risk of harm to others. Normally such factors might lead  to  a  discount,  but  notwithstanding  the  personal  difficulties Mr Prince faces there does not appear to have been any effective effort made by him to attempt to desist in conduct that is causing the victim significant distress. To give  a discount over and above that for admitting the present offence does not appear appropriate in these circumstances.

13     R v Proctor [2007] NZCA 289 at [17]–[20].

[17]              With a 25 per cent discount for guilty plea the end sentence is brought down to just over four months. The end sentence of seven months imprisonment seems to me to be outside the available range.

[18]              The unfortunate factor is that Mr Prince had already served over five months in prison at the time of his sentence in July 2019, so the effect of allowing the appeal will have little practical effect.

Post release conditions

[19]              The Judge imposed special release conditions extending to six months past his sentence end date. The special release conditions were for Mr Prince to not associate with the victim and not to go or be found in the victim’s street of residence. Mr Ewen submits the post release conditions in combination with the seven month period of imprisonment resulted in an end sentence all out of proportion to the gravity of the offending, and that the Judge failed to consider totality.

[20]              Under s 93 of the Sentencing Act 2002 an offender sentenced to a short term sentence of imprisonment will automatically be subject to standard release conditions,14 and the court may impose any special conditions extended up to six months after the sentence expiry date. Imposition of the special release conditions must be consistent with the sentencing principles under s 8 and ought not to be more onerous or last longer than is necessary to protect the safety of the community.15

[21]              Mr Ewen argues that the standard conditions of release are already significant restrictions and that to impose the conditions for a six month period offends the totality principle. As indicated there are unusual features of this case given that the victim is Mr Prince’s birth mother, and there is apparent concern for both her and Mr Prince, including from Mr Prince’s adoptive father. In these circumstances, special conditions of the kind imposed by the Judge seem to be appropriate. They have both a protective, and a rehabilitative function. It is necessary for Mr Prince to desist from his contact with his birth mother. I consider the six month period was justified in order to address

14     Parole Act 2002, s 14.

15     R v Janssen [2007] NZCA 450 at [15]; and Latham-Johnstone v Department of Corrections [2014] NZHC 2451 at [17].

the appellant’s history of unwillingness to comply with court orders and protection orders. If he fails to do so further imprisonment may be necessary.

Conclusion

[22]              I allow the appeal and substitute an end sentence of four months’ imprisonment, with the standard and special release conditions as specified by the District Court.

Cooke J

Solicitors:

Brandon Street Chambers, Wellington for Appellant Crown Solicitor, Wellington for Respondent