Robinson v Police

[2019] NZHC 1412

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2019-419-0034

[2019] NZHC 1412

BETWEEN

KENNETH CHARLES ROBINSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	20 June 2019
Appearances:	R T Nye-Wood for the appellant ASC Alcock for the respondent
Judgment:	20 June 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors:

Public Defence Service, Hamilton Almao Couch, Hamilton

ROBINSON v NEW ZEALAND POLICE [2019] NZHC 1412 [20 June 2019]

[1]    Kenneth Robinson appeals his sentence of nine months’ imprisonment imposed by Judge M L S F Burnett in the District Court at Hamilton on 18 April 2019.1 Mr Robinson had pleaded guilty to one charge of breaching a protection order.2

Approach to appeals against sentence

[2]    I must allow the appeal only if I am satisfied both there is an error in the sentence, and a different sentence should be imposed.3 In any other case, I must dismiss the appeal.4 The approach previously taken by courts on sentencing appeals continues to apply;5 the measure of error is the sentence be “manifestly excessive” – the principle is “well-engrained” in this Court’s approach to sentence appeals.6 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than by the process by which it is reached.7

Offending

[3]    A protection order was issued against Mr Robinson by the Tauranga Family Court on 4 October 2006. It became final on 4 January 2007. He has been in an on- and-off relationship with the applicant for the order –the victim in the appeal – for 17 years.

[4]    On 13 February 2019, Mr Robinson was at the victim’s address in Hamilton. He began verbally abusing a friend of the victim who arrived at the address. The victim told Mr Robinson to leave but he refused. He used her phone to call the landlord before the victim grabbed her phone back and called the police. In continued breach of the protection order, Mr Robinson refused to leave.8

1      Police v Robinson [2019] NZDC 7451.

2      Domestic Violence Act 1995, ss 19(2)(c), 49(1)(b) and 49(3). The maximum penalty is three years’ imprisonment.

3      Criminal Procedure Act 2011, s 250(2).

4      Section 250(3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

6      At [33] and [35].

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

8      Under s 19(2)(c) of the Domestic Violence Act 1995, it is a condition of every protection order that a respondent must not, without the protected person’s express consent, remain on any land or building occupied by the protected person.

District Court decision

[5]Judge Burnett ordered an end sentence of nine months’ imprisonment, after:

(a)adopting a starting point of six months’ imprisonment;

(b)applying a six-month uplift for Mr Robinson’s previous breaches of the protection order and continued pattern of offending; and

(c)applying a full 25 per cent discount in recognition of Mr Robinson’s guilty plea.

Mr Robinson’s appeal against sentence

[6]Mr Robinson says the end sentence was manifestly excessive because:

(a)the Court proceeded with sentencing on an incorrect factual basis;

(b)the uplift for previous convictions was disproportionately high; and

(c)no credit was given for his participation in restorative justice.

Discussion

[7]I turn now to consider those contentions.

—incorrect factual basis?

[8]    Mr Robinson’s counsel, Russell Nye-Wood, relies on two alleged factual errors in the District Court judgment:

(a)the Judge referred to Mr Robinson verbally abusing the victim, when the summary of facts – to which Mr Robinson pleaded guilty, providing the basis for the Judge’s sentencing of him – only refers to him verbally abusing the victim’s friend; and

(b)the Judge implied that it was Mr Robinson’s behaviour which forced the victim to leave her flat, due to him “not leaving her alone or allowing her to feel safe”. The Judge’s attribution of the victim’s “loss

of everything” to Mr Robinson’s behaviour is said to be without factual foundation.

[9]    There is no suggestion in the summary of facts Mr Robinson verbally abused the victim. But, even if the abuse exclusively was directed towards the visitor, it still illustrates an assertion of the sort of coercive control over the victim and her home as underpins domestic violence, justifying protection orders. And that assertion plainly extended to the victim, as police had to be called to remove Mr Robinson from the address.

[10]   The restorative justice report discusses the victim’s living situation. Her flat was broken into while she was away, after which she felt unsafe at the address and chose to stay in a tent. She planned to move to Auckland. There is nothing in the summary of facts to suggest the victim was away from her flat on account of Mr Robinson’s actions. While Mr Robinson may have caused the victim to feel unsafe and unsettled in her own home, the burglary and its subsequent consequences are too far removed from his offending to have any material effect on his culpability.

[11]   Mr Nye-Wood says the factual errors are of such an extent they cannot be divorced from “the effective starting point of 12 months’ imprisonment” and that the error should be corrected by exercising the sentencing discretion afresh. I disagree. The Judge did not significantly rely on either finding, focusing instead on Mr Robinson’s pattern of behaviour and comments contained in the pre-sentence report.

[12]   In any event, whether the sentence is manifestly excessive is a means of examining the significance of the error, to decide if a different sentence should be imposed.9 Alone, the factual errors are not pivotal.

—uplift for previous convictions disproportionately high?

[13]   Mr Nye-Woods also says the six-month uplift for Mr Robinson’s previous breaches of the protection order was too high. He says an uplift of 100 per cent is unusual, and the principle an offender is not to be re-punished for previous offending

9      Tutakangahau v R, above n 5, at [32].

must be observed. Also, previous breaches of protection orders are usually considered when setting the starting point for this type of offending.

[14]   Breach of protection orders is a category of offending in which prior convictions may be relevant in assessing the starting point,10 because culpability requires taking account of the relationship history.11 To ignore the background history in setting the starting point “would be artificial and prevent a proper analysis of the gravity of the offending”.12 That is the approach usually adopted in sentencing for this category of offending.13

[15]   But the Judge set a standalone starting point, then uplifted to recognise Mr Robinson’s relevant previous convictions. There was not double counting. Ignoring the history of Mr Robinson’s relationship with the victim makes analysis of an appropriate starting point somewhat artificial. I prefer the approach adopted in Mitchell v R. But whatever the methodology adopted, the focus remains on the end sentence.

[16]   Breaches of protection orders vary greatly in culpability and in degrees of threat and harm to the protected person.14 For that reason, there is no tariff case for breaches of protection orders – each case hinges on its own facts.15 But any breach of a protection order still is inherently serious.16 Protection orders are not made lightly; there must have been a prior incident of domestic violence.17 It is of note the maximum sentence for breaching a protection order increased by Parliament in 2013 from two years to three years’ imprisonment.18

[17]   Mr Robinson was not physically violent toward either the victim or her friend. The degree of threat present was lower than in other cases. But his conduct was confrontational, even if primarily directed at the victim’s friend. A high degree of

10     R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [16].

11     Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498 at [12].

12 At [12].

13     See Palmer v Police [2015] NZHC 143 at [17]; Crean v Police [2015] NZHC 3203 at [16(b)]; and

Tetau v Police [2015] NZHC 1284 at [26]–[28].

14     Anderson v R [2016] NZCA 346 at [26].

15 At [26].

16     Weidemann v R [2018] NZCA 381 at [43].

17     Taumalolo v Police [2016] NZHC 1525 at [21].

18     Domestic Violence Amendment Act 2013, s 11(1).

physical violence is not required for a breach to be considered serious. Indeed, any significant violence will likely be reflected in a separate charge.19

[18]   Mr Robinson’s relationship with the victim has continued, despite the protection order. The standard conditions for protection orders accommodate such, by requiring the protected person’s “express consent”.20 A protected person’s permission can be a relevant factor to the offender’s overall culpability.21 The victim’s earlier permission is not material; her withdrawal of consent does not reduce Mr Robinson’s breach.22

[19]   Mr Robinson has eight previous convictions for breaching the protection order since 2006, most recently in late November 2018. They show a continuing and consistent pattern of reoffending.23 Mr Robinson also has several convictions for breaches of community work and breaching court release conditions. He additionally has convictions for male assaults female in 2015, and injuring with intent to injure in 2008 – both domestic violence incidents.

[20]   Mr Nye-Wood says Mr Robinson’s offending is similar to that in Irvine v Police, attracting a ten-month starting point.24 He distinguishes it from the offending in Bartlett v Police, attracting a 14-month starting point.25 But, while there were two breaches in Irvine, they occurred close together, and the appellant had no previous convictions for such breaches. Mr Irvine’s starting point thus contained no uplift for previous convictions. Comparatively, Mr Robinson’s eight previous convictions are integral to an assessment of the gravity of his offending. Repeated breaches of protection orders call for a proportionate response,26 more severely as the court’s order continues to be disregarded over time. That accounts for the distinction between Mr Robinson’s case and in Bartlett.

19     Palmer v Police, above n 13, at [23].

20     Domestic Violence Act 1995, s 19.

21     Palmer v Police, above n 13, at [27].

22 At [28].

23     Tetau v Police, above n 13, at [27].

24     Irvine v Police [2017] NZHC 3085.

25     Bartlett v Police [2016] NZHC 850.

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

[21]   Mr Nye-Wood also refers to Narayan v Police, as suggesting a starting point of eight to nine months’ imprisonment would have been within range, taking into account Mr Robinson’s previous convictions.27 But Narayan was decided before Parliament increased the maximum penalty for breaches of protection orders by 50 per cent. Hence twelve months now may be the comparable sentence to be drawn from Narayan, as is endorsed by other sentencings for current breach with convictions for previous breach.28

[22]   The Judge’s effective twelve-month starting point thus is orthodox, reflecting a balance between the conduct engaging the protection order on the one hand and Mr Robinson’s extended history of non-compliance (including shorter terms of imprisonment, most recently in November 2018). Even if previous sentencing was non-custodial, there comes a time when penalties must have some bite.29 Notably, it is a sentence at the lowest third of the statutory range, which illustrates its place in the spectrum of offending. A fifteen-month starting point was entirely open to the Judge.

—no credit given for participation in restorative justice?

[23]   Last, Mr Nye-Woods says the Judge erred in failing to give credit for Mr Robinson’s participation in restorative justice, as demonstrating his remorse and warranting a five to ten per cent discount.

[24]   Participation in a restorative justice process must be taken into account when sentencing an offender.30 The Judge made no express reference to the positive outcomes reached in the restorative justice conference. Mr Robinson acknowledged what he did was wrong, and showed some degree of insight and a willingness to address his anger and substance use issues. He said he wants to stay in contact with the victim and she expressed a similar wish. Mr Robinson’s participation should have been considered by the Judge.

27     Narayan v Police [2012] NZHC 988.

28     Turner v Police [2017] NZHC 1113 (14-15 months); Crean v Police, above n 13 (15 months); and

Hamilton v Police [2014] NZHC 2698 (11 months).

29     R v Cartwright CA 175/02, 28 August 2002 at [24].

30     Sentencing Act 2002, ss 8(j), 9(2)(f) and 10.

[25]   Still, restorative justice processes are based on the premise the offender accepts responsibility for his or her actions.31 The pre-sentence report, dated after the restorative justice report, says Mr Robinson was resistant to being referred to any rehabilitative interventions – he wanted “to achieve these matters himself”. Mr Robinson also referred to the protection order as the victim’s “trump card” and said the protection order is enforced by her for “no reason”. The mixed comments in the pre-sentence report undermine the extent to which Mr Robinson can be taken to accept responsibility for his behaviour.

[26]   The marginal impact of any such discount – of only two to four weeks – is insufficient to render the Judge’s end sentence of nine months’ imprisonment manifestly excessive. And it also is a benevolent sentence; an end sentence closer to a year’s imprisonment would have been entirely within range.

Result

[27]The appeal is dismissed.

—Jagose J

31     R v Harrison [2008] NZCA 514 at [23].