Russell v Police
[2023] NZHC 631
•27 March 2023
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2023-441-2
[2023] NZHC 631
BETWEEN PHILLIP MARAU GLANVILLE RUSSELL
AppellantAND
THE NEW ZEALAND POLICE
Respondent
Hearing: 8 March 2023 (via AVL) Appearances:
E J Forster for Appellant
F E Cleary for Respondent
Judgment:
27 March 2023
JUDGMENT OF McQUEEN J
[1] On 10 January 2023, Phillip Russell (the appellant) was sentenced by Judge Collins in the Hastings District Court on two charges to which he pleaded guilty.1 These charges were:
(a)breach of a protection order;2 and
(b)breach of release conditions.3
[2] Mr Russell was sentenced to 12 months’ imprisonment for the breach of a protection order charge, and to a concurrent term of four months’ imprisonment for the breach of release conditions. He now appeals on the ground that the sentence imposed was manifestly excessive by way of the starting point and excessive uplifts.
1 Police v Russell [2023] NZDC 250.
2 Family Violence Act 2018, ss 90(b) and 112(1)(a); maximum penalty three years’ imprisonment.
3 Sentencing Act 2002, s 96(1); maximum penalty one year’s imprisonment or $2,000 fine.
RUSSELL v THE NEW ZEALAND POLICE [2023] NZHC 631 [27 March 2023]
[3] The police oppose the appeal, and say that the end sentence was within range and appropriate in the specific circumstances of the case.
[4]For the reasons below, I consider that the appeal should be dismissed.
Background
The offending
[5] Mr Russell and the victim were in a relationship from the late 1990’s, but separated about eleven years ago. They have an adult child together. They have been the subject of multiple family harm investigations. On 29 November 2011, a final protection order was issued by the Hastings District Court. The respondent was Mr Russell and the protected person the victim in the present case. The protection order was served on Mr Russell on 7 December 2011.
[6] In July 2022, Mr Russell was sentenced to 18 months’ imprisonment for convictions on five charges of breaching a protection order and one charge of assaulting a police officer. Upon his release he was subject to release conditions which were to apply for a period of 15 months. One of these conditions was that he not contact the victim.
[7] On 15 November 2022, Mr Russell was released from Auckland Men’s Prison. He flew to Napier and made his way to Hastings. At approximately 5:20 pm on the same day, Mr Russell used a phone at a petrol station to make five calls to the victim, who did not answer the phone, as the number was not known to her. The victim contacted the police as she was scared that it was the defendant trying to call her. Police enquiries traced the phone number back to the petrol station where Mr Russell was seen on CCTV using the phone to call the victim. He was located a short time later and arrested.
[8] Mr Russell’s explanation to the police was that he had called the victim by mistake. His explanation to the writer of the pre-sentence report (PAC report) was that he tried to contact his son but when that was unsuccessful he tried to call the victim.
This was in an attempt to pick up his car so that he could drive to Wellington to see his sick father.
PAC report
[9] The PAC report writer recommended a sentence of imprisonment. They noted that Mr Russell remains adamant that he wants to return to the property where the victim resides despite there being evidence that the victim bought his share in the property. That is opposed by the victim, who has been a victim of violence inflicted by Mr Russell for a period of ten years. The victim wishes to focus on her own wellbeing and that of her children.
[10] The report writer highlighted a positive relationship that Mr Russell has with a forensic court liaison nurse, who has been encouraging him to consider alternative ways of thinking, which is positive as Mr Russell generally refuses to engage with Corrections staff.
[11]The report writer stated:
Prison sentences have failed to provide any deterrent impact for Mr Russell. If there is to be any hope that Mr Russell’s behaviour will moderate on-going work needs to be done with Corrections staff to encourage Mr Russell to consider other release options and a robust release plan needs to be in place prior to any release. While a custodial sentence appears to be the only option at this point in time the Court may wish to consider granting Mr Russell leave to apply for Home Detention.
[12]In other advice from the Department of Corrections it was also said that:
Mr Russell is assessed as posing a high likelihood of further offending and a high risk of harm to others, particularly towards [the victim]. With the extensive history of family harm incidents, it is evident that there is imminent risk to his victim when he is out in the community without the appropriate conditions to mitigate his risks. Mr Russell has not been deterred from having contact with [the victim] despite the non-association and the existence of the Protection Order.
Police have stated their concerns for the victim's safety, advising they are “of the belief that given his behaviour over the years, his declining mental health, anger for any form of Justice department, Police, Corrections and his fixation on [the victim] and the land, that if we do not do all we can to protect her that this sad case will likely end with a murder/suicide type situation”.
Victim impact statement
[13]The victim has provided a statement which confirms that:
(a)when she and Mr Russell separated in 2005, she arranged a separation agreement, pursuant to which she made a full and final payment to Mr Russell for their assets, including the property which she currently resides at;
(b)Mr Russell has no legal or ancestral right to the property;
(c)since the protection order was made final, Mr Russell has been in and out of prison for offending as a result of breaches of the protection order; and
(d)she does not want Mr Russell at her address and is extremely concerned for herself and their son’s safety every time he is released.
[14]She states:
This particular incident will appear relatively minor to the courts, but I cannot stress enough the emotional and psychological pressure these incidents have on my son and myself.
I feel really let down by the courts as nobody ever listens to me and my concerns and we seem to just be repeating the same process for the last 15 years. I do not want any further contact from Phil, [and I] do not want him at my address. I do not know what else can be done but I feel alone and extremely vulnerable and am looking for any help that the courts can offer.
District Court decision
[15]The District Court Judge highlighted Mr Russell’s criminal history, stating:
[4] The real difficulty here is that Mr Russell has 32 previous convictions for breach of a protection order, however 27 of those relate to this victim. So the first five convictions for breach of protection order relate to another victim back in the 1990s or earlier and before that there is a breach of what was known then as a breach of a non-molestation order and there are eight convictions for that. So effectively there are 40 convictions for offending of this nature. This offending is now the 28th against this victim.
[5] In addition, Mr Russell has 11 convictions of assault or other violence in a family violence context. In relation to this victim, they arise from 2012 onwards. On 22 August 2012 he was sentenced to imprisonment for assault[and] assault with a weapon, 4 February 2013 male assaults female, 14 March 2013 threatening to kill, together with breaches of protection order at that time. On 15 January 2015 he was sentenced to assault on a child, injuring with intent to injure as well, for which he received terms of imprisonment.
[6] In addition Mr Russell has 15 convictions for breaches of release conditions since that time. So that shows that not only would he not comply with the protection order conditions imposed but he will not comply with release conditions either.
[16] The Judge considered that Mr Russell holds a “delusional view that his former partner wants to reconcile, that is contrary to every indication before the Court”.4 He considered that protection of the victim was a particularly important part of the sentencing exercise.5
[17] The Judge adopted the approach set out by Brewer J in Crean v Police.6 That approach recognises that while the orthodox sentencing approach factors previous convictions in at the second step:7
…the breaching of protection orders is one of the types of offending where prior convictions are integral to the assessment of the gravity of the index offending.8 This is because a history of previous breaches is directly relevant to the assessment of the gravity of the most recent offending and to the culpability of the offender.9
[18]The Judge stated:
This offending does not call for the orthodox approach. At the heart of the offending, or the heart of the criminality, in intimate partner violence, or former intimate partner violence, is the coercion and control brought about by fear. Here the ongoing psychological message to a woman who has been a victim of violence is that that message is: “I know where you are and I can reach you.” As I say here, that is obvious. The most serious part, Mr Russell, of your offending is the sheer persistence and that makes it serious, actually really serious. Persistence in both breach of the protection order and breach of the release conditions. For the purposes and principles of sentencing that apply today, holding you accountable and protecting the victim have to be given full recognition.
4 Police v Russell, above n 1, at [7] and [14].
5 At [8].
6 Crean v Police [2015] NZHC 3203.
7 At [16(b)].
8 Tetau v Police [2015] NZHC 1284 at [26].
9 Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498 at [12]–[14] and [17].
[19] The Judge considered that the appropriate starting point was one of 15 months’ imprisonment, and that if another offence were before him in the future, he would have no hesitation in adopting the maximum.
[20] The final sentence was 12 months’ imprisonment for the breach of the protection order, and a further concurrent term of four months’ imprisonment for the breach of release conditions. Although the Judge did not say so explicitly, it is clear that his Honour applied a guilty plea discount of 20 per cent. Mr Russell was also made subject to standard and special release conditions for six months after his sentence expiry date, as recommended in the pre-sentence report.
Approach to appeal
[21] The appeal is brought under ss 244 and 250 of the Criminal Procedure Act 2011. Under s 250 of the Criminal Procedure Act, the appeal court must allow the appeal if satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed. The Court must dismiss the appeal in any other case.
[22] Section 250(2) was not intended to change the previous approach taken by the courts under the now repealed Summary Proceedings Act which applied where the sentence was “clearly excessive or inadequate or inappropriate”.10 Further, despite s 250 making no express reference to a requirement that a sentence be “manifestly excessive”, this principle is “well-ingrained” in the court’s approach to sentence appeals. An appeal court will not interfere with the end sentence if the end sentence is within range.11 The focus is on the end sentence and not the process adopted to reach that end sentence.
Analysis
[23]Mr Forster, on behalf of Mr Russell, submits that:
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] and [27].
11 Ripia v R [2011] NZCA 101 at [15].
(a)the Judge’s decision to depart from the approach to sentencing set out in R v Taueki and Moses v R was flawed;12
(b)by comparison with other similar cases, the sentence was manifestly excessive; and
(c)insufficient discount was given for the early guilty plea.
Departure from orthodox approach
[24] Mr Forster says that the Judge’s decision to depart from the orthodox sentencing approach was flawed as there was no balancing of any countervailing factual factors in the assessment of the offending. He submits that Mr Russell calling the victim was not a further episode in the cycle of abuse, but rather Mr Russell attempting to get himself out of a desperate situation. He submits that Mr Russell did not talk to the victim, left no messages, and had a ‘good reason’ for contacting her, which makes the present case distinguishable from more serious offending, such as in Mitchell v R.13 Mr Forster submits also that the Judge did not balance the countervailing personal factors reported in the PAC report. Mr Forster submits that departing from orthodox sentencing principles should be strictly guarded against because a departure is a significant step that removes the transparency and demonstrability of sentencing.
[25] Ms Cleary for the police submits that the Judge did not err by utilising what is a standard sentencing approach for protection orders where there are a number of previous breaches, which has been repeatedly endorsed by the courts. Ms Cleary says that none of the appellate cases which endorse this approach have made it contingent on the index offending reaching a certain level of seriousness. Rather, the prior offending increases the gravity of the index offending. In addition, Ms Cleary says that there was no double counting of the previous convictions, as no uplift was imposed from the starting point.
12 R v Taueki [2005] 3 NZLR 372 (CA); Moses v R [2020] NZCA 296.
13 Mitchell v R [2022] NZCA 159; see also Mitchell v R [2022] NZSC 89.
[26] I do not see merit in Mr Forster’s submissions. While I accept that what Mr Russell actually did in the present circumstances represents a breach of a protection order of a typically minor nature, the point is that Mr Russell’s actions cannot be viewed in isolation. Regardless of what his intentions may have been, Mr Russell breached the protection order for the twenty-eighth time, mere hours after being released from prison for similar offending. This was clearly a situation where it was available and appropriate for the Judge to apply the approach set out in Crean v Police. The Supreme Court has described this sentencing approach (although without referencing Crean) as “largely orthodox”.14 The Judge was logically unable to properly ascertain the gravity of Mr Russell’s offending in isolation from the fact of his previous convictions. I am not satisfied that the Judge erred in this respect. I accept Ms Cleary’s submission that the Judge appropriately applied what is an accepted sentencing methodology in the present context.
[27]Further, as stated by Wylie J: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.16 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.17
[28] Mr Russell’s offending against his former wife has been repetitive in the extreme. As noted, that is important context in assessing what in this case is the index offending. In sum, I do not consider that the Judge erred in departing from the orthodox sentencing approach, and considering the quantity and nature of Mr Russell’s previous offending against his former wife. To ignore the background history in setting the starting point “would be artificial and prevent a proper analysis of the gravity of the offending”.18
14 Mitchell v R [2022] NZSC 89 at [6].
15 Morris-Stewart v Police [2016] NZHC 1030 at [15].
16 R v Cartwright CA175/02, 27 August 2002 at [20]–[21].
17 R v Nathan CA209/06, 29 November 2006 at [25].
18 Mitchell v R, above n 9, at [12].
Starting point
[29] Mr Forster submits that the starting point was excessive. He makes reference to other cases in which lesser starting points were adopted, or cases where similar starting points were adopted, but the offending was more serious. These included:
(a)Williams v Police: in which a starting point of seven months’ imprisonment was adopted on appeal for one charge of breach of a protection order and one charge of male assaults female. The appellant had four convictions for previous breaches of a protection order, three violence convictions in respect of the same victim, and a further assault charge in respect of another victim.19
(b)Smart v Police: in which a starting point of 12 months’ imprisonment was upheld on appeal where the appellant had sent over 1,400 text messages over a six-week period, many of which were abusive and/or threatening.20 The appellant had no convictions for previous breaches of a protection order.
(c)Morris-Stewart v Police: in which a starting point of 12 months’ imprisonment was adopted on appeal where the appellant had sent the victim many text messages throughout the day and night, many of which were abusive and threatening.21 The appellant had three previous convictions for breaching a protection order.
(d)Wallace-Joe v Police: in which the High Court upheld a starting point of 12 months imprisonment for four charges of contravening a protection order, three charges of male assaults female and one charge of wilful damage. The appellant had smashed a window to gain entry to a property and pushed the victim to the ground by her throat. He later also hit the victim in the head and throat, and pushed her again, after
19 Williams v Police [2014] NZHC 3255.
20 Smart v Police [2016] NZHC 3092.
21 Morris-Stewart v Police, above n 15.
putting his fingers round her throat.22 The appellant had one previous conviction for breaching a protection order from 2015.
(e)Robinson v Police: in which a starting point of six months’ imprisonment was upheld on appeal, with an uplift of six months for eight previous convictions for breaches of the same protection order. The appellant had gone to the victim’s house, abused one of their friends and then refused to leave.23
(f)Coory v Police: where a starting point of 18 months’ imprisonment was adopted and uplifted by six months to reflect the appellant’s seven previous breaches of the same protection order. The appellant had sent 13 text messages to the victim over five days, entered her house, verbally abused her, and refused to leave. The final starting point was two years’ imprisonment, which was upheld on appeal.24 I note that Coory is of little assistance to the sentencing exercise—given it was decided prior to the passage of the Domestic Violence Amendment Act 2013.25
(g)Mitchell v R: in which a starting point of two years and six months’ imprisonment was approved by the Court of Appeal, where Ms Mitchell had sent three tranches of letters to the victim from Arohata Women’s Prison. She had 80 prior convictions for breaching or attempting to breach the protection order.26
[30] Mr Forster says that in this case, a 15 month starting point was higher than in cases where there had been associated physical violence, a large number of messages, and remaining despite having been told to leave. He says that in this case, there was no violence, no messages left, no unlawful entry, and little harm caused. He submits that “[w]ithout prior convictions and or it being a continuation of a prior pattern of
22 Wallace-Joe v Police [2016] NZHC 3060.
23 Robinson v Police [2019] NZHC 1412.
24 Coory v Police HC Dunedin CRI-2010-412-037, 25 November 2010.
25 Crean v Police, above n 6, at [16(c)].
26 Mitchell v R [2022] NZCA 159.
abuse it was a de [minimis] breach of a protection order justifying an order to come up for sentence [if called upon]”. He says that Mr Russell’s starting point should be below the eight months starting point identified by the Court of Appeal as the top of the range for protection order breaches involving the sending of voicemail messages.27
[31] Ms Cleary submits instead that in light of Mr Russell’s conflicting explanations, and previous convictions, it was entirely open to the Judge to construe the offending in the manner that he did. Ms Cleary says that “Any submission that [the calls] did not have an impact on [the victim] because the calls were not answered misunderstands the psychological pressure occasioned by such contact”. Ms Cleary submits that the “sophisticated release plan” and Mr Russell’s engagement with the liaison nurse while in custody are unrelated to setting the starting point, given that Mr Russell did not accept that release plan, remaining adamant that he would return to the victim’s address.
[32] The difficulty for Mr Russell on this point is that none of the other cases cited by Mr Forster concerned offenders with a similarly extensive background, and as I have noted above, that background was distinctly relevant to the consideration of the gravity of Mr Russell’s most recent offending. The only exception to that is Ms Mitchell, who had 80 previous convictions for the breaching of a protection order. Mr Russell has 40 previous convictions of a nature as are concerned in the present case. As a result of my conclusion above, the case law cited by Mr Forster is largely irrelevant, because in all cases except Ms Mitchell’s (and to a much lesser extent, Mr Robinson’s), the index offending did not need to be and was not assessed within a broader context of a long-established pattern of abuse.
[33] It is well-established that there is no guideline or tariff judgment for breaching a protection order, and that such offending varies greatly in both culpability and levels of harm. However, the psychological and emotional impact of consistent and ongoing breaches of protection orders should not be understated. Protection orders are intended to be inviolate. While I accept that the index offending in this case was relatively minor, the relevance of Mr Russell’s previous convictions in setting the starting point,
27 Mitchell v R [2015] NZCA 442 at [25].
particularly the fact that he had committed a further breach within hours of being released following similar offending, means that I am unconvinced that the Judge erred in setting a starting point of 15 months. That starting point was undoubtedly within range. I accept Ms Cleary’s submissions regarding the gravity of the offending and the setting of the starting point.
Adjustment
[34] Mr Forster submits that Mr Russell only received a 20 per cent guilty plea discount, when he should have received a 25 per cent discount for his early guilty plea to both charges. He says that no reasons were given by the Judge for departing from the guidance in Hessell v R.28 He says that this was an error, and that Mr Russell’s sentence should be reduced by one month in recognition of this error.
[35] Ms Cleary accepts that there was no explanation from the Judge as to why 20 per cent was the appropriate guilty plea discount, but submits that it was open to the Judge to impose slightly less than the maximum in the circumstances. Ms Cleary says also that the end sentence remains within range. She further notes that the provision of a guilty plea discount must take into account all the circumstances in which the plea is entered, and that the maximum discount is not guaranteed solely by the virtue of a plea being entered at an early stage. Ms Cleary says that given the strength of the Crown case, a guilty plea was inevitable and a full discount was not mandated.
[36] I do not accept that the Judge erred in relation to the guilty plea discount. Ultimately, I am of the view that the end sentence was within range. Notwithstanding the guidance in Hessell, discounts for guilty pleas and/or other mitigating factors were a discretionary matter for the Judge, and I can see no appropriate basis for tinkering with the end sentence by one month, particularly where the police case in this instance was strong.29
28 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
29 At [57], [60], [62], and [65].
Conclusion
[37]In sum:
(a)the Judge appropriately determined that this is a case in which the approach set out in Crean v Police may apply, in that Mr Russell’s previous convictions were relevant to assessing the gravity of the offending and therefore the starting point;
(b)the starting point was appropriately calculated, notwithstanding the relatively minor nature of the index offending—because the circumstances in which the index offending occurred indicate a continued disregard for the debilitating effect of Mr Russell’s campaign of abuse against his former wife; and
(c)it would not be appropriate for this Court to tinker with the guilty plea discount awarded to Mr Russell, in the absence of a clearly identifiable error, or a sentence that was clearly out of range.
[38] I consider that Mr Russell’s appeal should be dismissed. His sentence cannot be described in any way as manifestly excessive.
Result
[39]Appeal dismissed.
McQueen J
Solicitors:
Crown Solicitor, Napier for Respondent
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