Russell v Police - [2023] NZHC 631

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
Appellant

AND

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Russell v Police

Details

AGLC: Russell v Police [2023] NZHC 631
Case: [2023] NZHC 631
Decision Date: 27 March 2023

CaseChat Overview and Summary

Phillip Russell appeals against his sentence of 12 months' imprisonment for breaching a protection order, and a concurrent term of four months for breaching release conditions. The police oppose the appeal, arguing that the sentence was within range and appropriate. The Court finds that the appeal should be dismissed.

The Court considered whether the Judge erred in departing from the orthodox sentencing approach. The Court held that the Judge did not err in this respect, as the approach adopted was appropriate given the extensive history of breaches of protection orders by Mr Russell. The Court further held that there was no double counting of previous convictions, as no uplift was imposed from the starting point.

The Court also considered whether the starting point was excessive. The Court found that the starting point of 15 months was within range, as the circumstances in which the index offending occurred indicated a continued disregard for the debilitating effect of Mr Russell's campaign of abuse against his former wife. The Court noted that the cases cited by the appellant were largely irrelevant, as they did not involve offenders with a similarly extensive background of breaches of protection orders.

Finally, the Court considered whether the guilty plea discount was appropriate. The Court found that it was open to the Judge to impose slightly less than the maximum discount in the circumstances, and that the end sentence remained within range. The Court held that it would not be appropriate 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.

Accordingly, the Court dismissed Mr Russell's appeal. The sentence cannot be described in any way as manifestly excessive.

Orders