R v Smith
[2018] NZHC 2361
•7 September 2018
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE TIHI-Ō-MARU ROHECRI-2016-076-001086 [2018] NZHC 2361
THE QUEEN v
GEORGE DAVID HENRY SMITH
Hearing: 7 September 2018 Appearances:
A R McRae and H V Bennett for the Crown T J Jackson for the Defendant
Date:
7 September 2018
SENTENCING REMARKS OF NATION J
[1] Mr Smith, you are being sentenced on charges of kidnapping, unlawful possession of a firearm, possession of methamphetamine and possession of utensils for using methamphetamine.
[2] You have heard counsel tell me that they have filed written submissions. They were long and detailed and I have considered them carefully. And, those present in Court need to be conscious of the fact that I have carefully considered very detailed submissions that have been filed by both the Crown and by Mr Jackson for Mr Smith.
[3] In November 2016, you were aged 35. You had been in an intermittent relationship with your victim for approximately 15 years. You married in December 2015 but in September 2016 she ended the relationship. You could not accept that it was over.
R v SMITH [2018] NZHC 2361 [7 September 2018]
[4] Early in the morning of 30 November 2016, you were waiting outside her house. When she went to get into her van to drive to work, you grabbed her and pushed her forcefully into the back of the van. You had an associate drive the vehicle away. You held her down in the vehicle as it left the scene. You and your associate drove her into the country. The van was driven to a point under a bridge where it was unlikely to be seen and where you had set up a makeshift camp. Your associate left the scene and probably drove away in your ute. It was found more than a month later in a forested area, about 30 minutes drive away from the scene, hidden from view of the road.
[5] Your actions were serious, sinister and potentially life-threatening for your victim.
[6] A seriously aggravating feature of the offending was the pre-meditation involved. You knew your victim did not want to have any contact with you. There had been an earlier incident when you had, without her agreement, got into her vehicle at her work place and pressured her into driving you to a place in the country where you were married. Although you had ended up being with her for the night, she had been disturbed by what had happened. She went to the Police and ultimately obtained a protection order. She was in Australia for a short time but, on returning, made it clear to you directly that she did not want to have any further contact with you and she did not want you to be harassing her friends and family in the way that had been occurring.
[7] You decided to force her to be with you. On the day before the kidnapping, you contacted her employer to find out what her work schedule would be. You obviously picked out the site you were going to take her to and set up your makeshift camp under a bridge there.
[8] There is no doubt that you arranged for an associate to drive her van so you would be able to force her to stay with you in the back of the van. On all the evidence I heard during the trial, there is no doubt that it was this associate who drove in the morning as you forced the victim to go away with you. The Police have not been able to identify who that person was. It must be of considerable concern to
your victim, and indeed to the Police, that there is someone who remains in the community who was willing to help you kidnap your wife in the way that you did.
[9] You must have arranged for that associate to be able to leave the scene under the bridge where you ended up, either in your ute or in some other way.
[10] You prepared for the kidnapping by camouflaging your face and disguising your appearance somewhat by tying up your beard. Prior to that day, you had bought the ties and the insulating tape.
[11] You knew you would be detaining your victim against her will. You prepared for that by having with you handcuffs and thumb-cuffs. You also had a rifle with ammunition. You were not planning to go wallaby shooting. While your victim was in the van, you took from her one cell phone and threw it out the sunroof of the van. You removed the battery from another cell phone and threw that out of the vehicle.
[12] The offending did involve actual violence but also threatened violence and the use of a weapon. There was violence in the way you forced your victim into the van, the use of force in the way you held her down in the van with the hope that no one would see her being taken away, and the use of force in the way you applied the thumb-cuffs to a degree that physically hurt her. There was real danger in the way you handled the firearm while with her at the campsite, and the way you showed her two bullets and said they were for each of you.
[13] In some other cases, there has been more serious physical violence associated with a kidnapping. I consider the extent of the psychological trauma, which your victim must have suffered over a long period, makes this kidnapping also particularly serious. Given the early hour of the day, the circumstances in which you forced her into the van, and the fact you were holding her in the van with another associate driving, she must have been hugely fearful as to what was going to happen to her. It would have been obvious to her that you were not thinking straight. It is understandable, and I accept that, when she was in the van and when she was with you under the bridge, she feared for her life. She did not know where she was except that she was somewhere in the country. She was not in a situation where she could
get help. It was almost 24 hours after she was taken, when you had fallen asleep, that she went on to the road from under the bridge and was able to get help from a passing motorist. I accept, from what I heard from both your victim and the motorist who picked her up and took her to the Police station, that she was distressed and fearful.
[14] In Heke v R, the Court of Appeal, referring to an earlier judgment of the Court of Appeal in R v Wharton, said:1
… cases involving a former spouse who defies a protection order and detains a fearful, often battered and helpless female ex-partner for motives of power, revenge, jealousy or irrational anger” are becoming more common and are no less serious than other types of kidnapping.
[15] I bear in mind that you were found not guilty on the charge of breaching a protection order but that does not change the fact you knew a protection order had been made. What you did with your victim here had many of the features which the Court of Appeal said make this sort of case no less serious than other types of offending. As in R v Wharton, this kidnapping “involved prolonged and lawless invasion of the rights, dignity and integrity of a woman powerless to resist [you]”.2
[16] In Wharton, the Court of Appeal reduced a sentence for kidnapping from four and a half to three and a half years, but that was in a situation where the appellant had pleaded guilty.
[17]In Heke v R, in 2016, the Court of Appeal referred to:
The Courts’ recognition of the particular need for deterrence, denunciation and protection in such cases has, if anything, increased in the 12 years since that case was decided.
[18] A further aggravating feature with this offending was that it involved a breach of trust. That is nearly always the case with domestic violence offending. But, I also accept that, in detaining the victim under the bridge throughout the day and the following night, you were manipulating her to stay with you as you wanted because she was your wife.
1 Heke v R [2016] NZCA 38 at [10], citing R v Wharton (2003) 20 CRNZ 109 (CA).
2 R v Wharton, above n 1, at [12].
[19] You took advantage of her when she was vulnerable, forcing her into the van early in the morning, when she was taken completely by surprise and when you intended that no one else would be able to come to her assistance. She was also vulnerable simply by the way, through your size, you would have been able to physically overpower her and intimidate her.
[20] The only mitigating circumstance I can have some regard to is the fact that, during the time you detained her, you did not inflict the sort of serious physical injuries which have occurred in some other cases. Balanced against that however has to be the serious psychological harm she suffered.
[21] I must arrive at a starting point sentence for the kidnapping, having regard to all mitigating and aggravating features of the offence. There is no tariff decision for kidnapping. In Cassidy-Gugich v R, a starting point of two years and six months was upheld on appeal in relation to kidnapping of the offender’s ex-partner.3 In that case, Downs J said that was a correct starting point in situations where a former partner is detained briefly and there is associated violence or threats of violence, but longer and more serious instances of kidnapping would attract more serious sentences.
[22] In Solicitor-General v Nahu, the Court of Appeal held that a kidnapping alone, without violence, in circumstances where the defendant abducted the victim late at night from her home and orally abused and threatened her, could have sustained a sentence of four to five years.4
[23] I accept the harm you have caused your victim has been serious and ongoing. It is not surprising that she feels constantly unsafe and on-guard, she fears to be alone and she has been left with a sense of “utter despair and hopelessness”.
[24] At your first trial, you were found guilty on the charges of unlawful possession of methamphetamine and possession of utensils. You had pleaded guilty to the charge of unlawful possession of a firearm. Because I am treating that offending as really being part of the kidnapping offence, which is the lead offence
3 Cassidy-Gugich v R [2016] NZHC 3027.
4 Solicitor-General v Nahu CA309/98, 28 October 1998.
when it comes to sentencing, this is not a situation where I can give you any discount for the guilty plea on the charge of unlawful possession of a firearm.
[25] The maximum penalty for unlawful possession of a firearm is four years’ imprisonment. For possession of methamphetamine of the quantity you had here, (1.5 grams), the maximum penalty for that offence is six months’ imprisonment or
$1,000 fine. For the possession of a pipe, the maximum penalty is one year’s imprisonment.
[26] You have recognised, while in prison, your use of methamphetamine has caused you to offend. You told the probation officer, who prepared a report for the Court in April, that you felt you were capable of non-abusive interaction with partners and other people except when actively taking methamphetamine. The fact you planned to use methamphetamine after kidnapping your victim increased the risks for her. It increased the risk that you would do something dangerous and irrational. I thus treat your possession of the methamphetamine and the pipe as an aggravating feature of the offending.
[27] The same applies with regard to your possession of the firearm. I accept that you handled that rifle and spoke of using it and the two bullets you showed your victim in a way that made her deeply fearful, although she was able to persuade you to put it down, away from her, which you did.
[28] Through your counsel, you say your actions were drug and emotion fuelled desperation and the events would not have taken place but for the drugs and the fact you had been on them for some time before what happened. In relation to that, I should say, it is not just because you were using drugs that this offending happened. It also happened because, somewhere in your mind, you thought it was alright for you to use violence with your wife to get her to a position where you hoped she would be with you and do things with you in the way that you wanted. It was because you thought it was alright to treat her with the violence that happened that these events occurred. There are other people who have used drugs who do not have that in their nature.
[29] Your counsel suggested that the level of seriousness for kidnapping in this case meant that a starting point of three to four years is appropriate, before consideration of aggravating and mitigating factors relating to you personally.
[30] The Crown submits a starting point of four to four and a half years would be appropriate.
[31]I consider the appropriate starting point for all offending is four years’
imprisonment.
[32] I must then consider whether there are any aggravating or mitigating features relating to you personally. You know that Mr Jackson referred to matters which he wished me to take into account in that regard.
[33] You have a limited conviction history which dates back to 1999. It includes two convictions for assault, and drug and dishonesty related offending. Your current convictions are your first since 2009. Because of the historic nature of your assault convictions and the lack of other recent or relevant convictions, there are no aggravating features relating to you personally which would require an uplift on the starting point sentence.
[34] Mr Jackson referred to the way you have been a compliant prisoner and the way, while in prison, you have addressed your drug abuse issues. He referred to the close relationship you have with your parents, the way they have been supportive of you and the way you were able to work well with your father in his logging contracting business so that, with your remand in prison, there has been a significant economic impact on both you and your parents. No doubt, when you think of that, you might also think of the impact your offending has had on your victim and her family and friends.
[35] Your counsel has referred to an offer which was made through counsel for you to be involved in restorative justice sessions with your victim. Not surprisingly, that was rejected by her. But can I say, you have heard the complainant, your victim, your wife, talk about the effect this offending had on her. You have heard her mother
talk about that. You should be able to understand how deeply fearful they are of you and, given the involvement of an associate in the offending, the way they might well be fearful of others who you can associate with in this town. As you continue to serve your sentence, you should be thinking about the effects all that has on them and you should be thinking of ways that you might be able to reassure them that they can be safe. To do that, you will have to acknowledge the reality of the way you offended. You will have to take responsibility for that. You will not be able to keep denying your offending in the way that is apparent in the most recent report from the probation officer.
[36] What is of concern to me and what will be of concern to the Parole Board is your seeming inability to acknowledge precisely what you did and the effect this would have had on your victim. To the probation officer, you denied responsibility for your offending and said that you did not believe you took the victim away against her will although, at the same time, you told the probation officer you were unable to recall what happened. To the probation officer, you claimed to have encountered the victim after returning to Timaru from a hunting trip and that you drove to the camp site in her vehicle where you simply engaged with your victim as a couple, all this, as I say, is despite the fact that you also say you cannot recall precisely what happened.
[37] Through your counsel, in his written submissions, it was apparent and it is apparent, consistent with what you said to the probation officer, you still deny that you had an associate drive the complainant’s vehicle. It is not surprising that, with your saying these things, your victim remains fearful of you but also, no doubt, your associates who you will be spinning this line to. There is nothing in the material before me to indicate that you appreciate how totally wrong your actions were, how frightening they would have been to your victim and how damaged she must be because of them. In reality, you have displayed a lack of remorse for what happened. That will be of relevance to the Parole Board but it is not to be seen as an aggravating factor relating to you personally that would require an uplift.
[38] You pleaded not guilty on all charges other than the charge relating to the firearm. Obviously, the discount that is normally available for a prompt guilty plea is not available for you.
[39] This means that your end sentence, for all the offences for which you have been found guilty, is four years’ imprisonment.
[40] The Crown has suggested that, in the particular circumstances of this case, the Court should impose a minimum period of imprisonment. As of now, you have been in custody on remand for a little over 21 months. Without the imposition of a minimum term for longer than one third of the end sentence, you will be eligible to apply for parole immediately. That does not mean you will necessarily be granted parole. Your current denial of the true nature of your offending may well be a factor for the Board to consider carefully. In this regard, I note the submission that was made for you that what occurred might be considered a brief aberration. I do not accept that submission. Your counsel referred to what had been a pattern of psychological abuse that had preceded the events at the end of November 2016. There had been that pattern. There had been the earlier incident where you had ended up again in the country with your victim.
[41] If and when you are granted parole, you will be subject to specific pre-release conditions, a number of which will no doubt be intended to ensure your victim can feel safe in the community in which she lives.
[42] The Crown submits that, without the imposition of a minimum period of imprisonment, a sentence would not hold you accountable for the harm done to the victim and the community through the offending for which you have been convicted at trial. It submits that, given the degree of pre-meditation and your conduct towards the victim, a minimum term is required for the protection of both the victim and the community. I consider that whether or not a minimum term is required has to be considered with regard to the particular circumstances of the offending, rather than the attitude which you still have now towards your offending.
[43] Whether or not you are granted parole, you will be subject to the sentence of this Court for its full duration. The length of that sentence has been imposed for the purpose of punishment, denunciation and deterrence. In the circumstances, I do not consider that there are otherwise aggravating factors in your particular case, by comparison with other offences of this type, that require a minimum term of imprisonment to be imposed. I am not imposing a minimum term.
[44] Mr Smith, please stand. On the charge of kidnapping, you are convicted and sentenced to imprisonment for four years. On the charge of unlawful possession of a firearm, you are convicted and sentenced to imprisonment for two months.
[45] On each of the charges of possession of utensils for taking methamphetamine and possession of methamphetamine, you are sentences to one month’s imprisonment.
[46]All sentences are concurrent.
[47] Kidnapping is an offence where, on conviction, you become liable to the particular sanctions of the three-strikes legislation. I am now giving you a warning as to that. You will also be able to talk to Mr Jackson about what it means afterwards.
Judge gives first warning.
[48] I also make an order for forfeiture of the firearm and the utensils for methamphetamine use.
Solicitors:
Gresson Dorman & Co., Timaru Quentin Hix Legal Ltd, Timaru.
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