S v The King

[2025] NZHC 997

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-35

[2025] NZHC 997

BETWEEN

S

Appellant

AND

THE KING

Respondent

Hearing:

19 March 2025

Appearances:

J M Lucas for Appellant

S A Teki-Clark for Respondent

Judgment:

30 April 2025

Reissued:

4 September 2025

JUDGMENT OF McQUEEN J

[1]    On 22 January 2025 S was sentenced to six years and nine months’ imprisonment by Judge Harding in respect of the following charges, to which S pleaded guilty:1

(a)two charges of impeding breathing;2

(b)one representative charge of perverting the course of justice;3

1      R v [S] [2025] NZDC 1182 [Decision under appeal]. A final protection order was also made. The appellant’s name is anonymised to protect the identity of the victim.

2      Crimes Act 1961, s 189A(b)—maximum sentence seven years’ imprisonment. The sentencing Judge referred to one of the charges being of a representative nature although the Crown charge list described them both as representative. Counsel were not able to clarify the position. In any event, there are three strangulation incidents described in the summary of facts.

3      Crimes Act, s 117(e)—maximum sentence seven years’ imprisonment.

S v R [2025] NZHC 997 [30 April 2025]

(c)one charge of theft (under $500);4

(d)two charges of driving while suspended;5 and

(e)two charges of breaching an extended supervision order (ESO).6

[2]    S appeals his sentence on the basis it is manifestly excessive as the overall starting point was too high, and no adjustment was made for totality.

[3]    The Crown opposes the appeal and say the sentence is not manifestly excessive.

[4]For the reasons set out below, I dismiss the appeal.

The offending

Strangulation and theft

[5]    The victim is S’s former partner. At the time of the offending, a non-association order was in place preventing S from being within 20 metres of her home.

[6]    On 9 December 2023, S spent the day at the victim’s home as she was unwell and had requested his help to look after their young daughter. When the victim was in the shower, S looked at her phone and became upset with some messages he saw on it. He entered the bathroom, grabbed her by the throat and pushed her up against the wall. The victim was naked. The victim was unable to breathe or speak. She felt that she was “becoming unconscious” but S let her go just before she lost consciousness. The victim’s body was “flailing about” and she could not remember much after that point. The victim describes the force used during this strangulation as a nine out of 10. She believed that S was intending to cause her to lose consciousness or kill her.

[7]S took the victim’s phone and did not return it, giving rise to the charge of theft.

4      Crimes Act, ss 219(a) and 223(d)—maximum sentence three months’ imprisonment.

5      Land Transport Act 1998, ss 32(1)(c) and 32(3)—maximum sentence three months’ imprisonment or $4,500 fine.

6      Parole Act 2002, s 107TA—maximum sentence two years’ imprisonment.

[8]    The victim’s next memory is of being face to face with S in her wardrobe and him putting his hand around her throat again, telling her that he would kill her. The victim lost consciousness as he impeded her breathing.

[9]    Once the victim regained consciousness, she screamed for help and S strangled her a third time. She does not believe she lost consciousness but remembers them ending up downstairs. The victim went to her front gate and continued screaming for help, still naked from the shower. S followed her out of the house and kicked her through a baby gate, breaking it, and causing the victim to be pushed onto her driveway. Her neighbour called the police and S fled the scene.

[10]Their daughter, who was 18 months old at the time, witnessed the offending.

[11]   A Police safety order was served on S on 11 December 2023. S was arrested on 12 December 2023 in relation to this offending, and a non-contact order was made under s 168A of the Criminal Procedure Act 2011.7

Perverting the course of justice

[12]   Immediately after the Police safety order was issued following the above offending, S messaged the victim saying she was his until she was dead and wanting to know if she would “call the pigs again”.

[13]   Between 15 December 2023 and 16 January 2024, S called the victim 245 times from prison. He listed her phone number as belonging to his sister.

[14]   S called the victim three times on 17 December 2023. He apologised to the victim and said he gets angry when he feels scared of losing her. He spoke about how he wanted them to heal. He talked about his wishes to complete courses while in prison. On 18 December, S called the victim. She told him she did not want to be answering his calls and that she was not there to heal him. They discussed his upcoming EM bail hearing, and he asked the victim, “so am I going to court or what?”

7      Section 168A of the Criminal Procedure Act 2011 allows the court to impose an order prohibiting a defendant remanded in custody for a family violence offence from having any contact with the victim.

in reference to whether the victim would proceed with her complaint. Later in the same call, they began to argue, and S said to her “fuck you, you are mine”, told her she was “bound” to him, and that she could not leave him unless she left the city.

ESO breach and driving while disqualified

[15]   On 17 February 2023, S was made subject to an ESO for two years. S’s ESO conditions included a condition not to possess, use or consume alcohol or drugs. On 26 June 2023, he was convicted of a breach of the ESO and sentenced to come up if called upon for nine months for failing to attend an alcohol and drug screening test. On 19 September 2023, S undertook a screening test. The sample he provided was analysed as inconsistent with human urine.

[16]   S was suspended from driving for a period of three months from 16 May 2023. On 1 and 13 August 2023, S drove a motorcycle in Christchurch without a licence.

Victim’s views

[17]   The victim of the offending provided a statement, expressing her ongoing anxiety including that she does not feel safe at home, and the effect on her daughter who has not been able to sleep alone. She speaks of hating her home and has had to block off the wardrobe with an unwritten rule no one goes in there. She says she is trying to put one foot in front of the other but sometimes falls backwards.

Decision under appeal

[18]   In sentencing S, Judge Harding outlined the offending, noting the impeding breathing charges were “the most serious”.8 His Honour noted the ongoing impact of the offending on the victim and S’s significant criminal history. The Judge acknowledged the Crown submission that the starting point for the strangulation offending should be five and a half to six years. The Judge (somewhat confusingly) categorised the strangulation offending as “very clearly at the top of a very moderate end of serious, close to the most serious of charges”,9 having already refuted the

8      Decision under appeal, above n 1, at [2].

9 At [13].

submission of defence counsel that the offending was properly considered moderate.10 The Judge considered there were repeated episodes of violence in a domestic context leading to unconsciousness, which were significant aggravating factors. He identified the offending as having “some similarities” to Hugenholtz v Police, where a sentence of four and a half years’ imprisonment for all the offending was upheld on appeal.11

[19]   The Judge recorded the Crown submission that three to three and a half years’ imprisonment was appropriate for the perverting the course of justice offending. The Judge also noted the defence submission that while the perverting the course of justice as a sole charge would justify two and a half years, overall, having regard to totality, three and a half years was appropriate for the offending.

[20]   The Judge said the charges of driving while disqualified and breaching the ESO are “entirely discrete and justify collectively … a sentence of six months’ imprisonment”.12

[21]   The Judge acknowledged the Crown submission that S’s “significant number of relevant previous convictions” could justify an uplift of nine to 12 months,13 but did not apply such an uplift, despite saying “[the starting point] is potentially able to be added to because of your previous offences…”.14 The Judge also declined to impose a minimum period of imprisonment.

[22]   The Judge recorded that the breach of the protection order involved very extensive contact with the victim but did not nominate a sentence for that offending.

[23]   The Judge ultimately took a global starting point of seven and a half years’ imprisonment for the perverting the course of justice and strangulation offending. The Judge did not indicate the discrete components of that figure, that is, the starting points selected for each. Nor did the Judge make any express adjustment for totality.

10 At [11].

11 At [13], citing Hugenholtz v New Zealand Police [2020] NZHC 659, where the High Court considered the starting point for the two strangulations in that case would appropriately have been three years and six months’ imprisonment: at [21].

12 At [15].

13 At [7].

14 At [16].

[24]   Applying a 10 per cent discount for S’s guilty plea (entered 10 days from trial), the Judge reached an end sentence of six years and nine months’ imprisonment.

[25]The Judge then explained that S’s sentence was to be made up as follows:15

(a)Three and a half years’ imprisonment for each of the two strangulation charges (concurrent);

(b)Three months’ imprisonment for theft (concurrent);

(c)Three years’ imprisonment for perverting the course of justice (cumulative);

(d)Three    months’    imprisonment     for    driving    while    disqualified (cumulative); and

(e)Three months’ imprisonment for breaching an ESO (cumulative).16

Approach on appeal

[26]   Section 244 of the Criminal Procedure Act 2011 provides for S’s right of first appeal against his sentence. Under s 250 of the Criminal Procedure Act, the appeal court must allow the appeal if it is satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed.

[27]   An appeal against sentence is an appeal against the Judge’s discretion.17 The Court will not intervene where the sentence is within the range available to the sentencing Judge.18 The Court will intervene only if the sentence is manifestly excessive, with the route by which the judge reached that outcome relevant to the analysis but seldom pivotal.19

15 Decision under appeal, above n 1, at [17].

16   The phrasing in respect of the driving while disqualified charges and breaching the ESO charges is imprecise. The Judge may have intended the three months’ imprisonment for each to be concurrent with the other, and cumulative on the overall sentence, as otherwise the calculation of the sentence would be seven years’ imprisonment; rather than six years and nine months.

17     Filivao v R [2024] NZCA 103 at [30].

18     Tutakangahau v R [2014] NZCA 279 at [36].

19     Ripia v R [2011] NZCA 101 at [15]; and see Kumar v R [2015] NZCA 460 at [81].

The parties’ overall positions

[28]   Mr Lucas, for S, accepts that a sentence of imprisonment is inevitable but submits that the Judge failed to assess appropriate starting points for each of the strangulation and perverting the course of justice charges and therefore fell into error. He says this error was then compounded by not assessing totality. Mr Lucas argues that the Judge was wrong to deem the strangulation and perverting the course of justice charges as separate and distinct offences when constructing the sentence, as they are inexorably linked.

[29]   Mr Teki-Clark, for the Crown, submits higher starting points were properly available to the Judge for the strangulation and perverting the course of justice offending. Mr Teki-Clark also says that the Judge erred by not imposing an uplift for S’s significant criminal history. He says this effectively “cancels out” the accepted error of the judge in not adjusting for totality. Mr Teki-Clark says that the sentence should not be disturbed on appeal.

[30]   There is a lack of clarity in aspects of the sentencing Judge’s decision. Although the focus of the appeal is on the end sentence, I consider that it necessary to approach the sentencing exercise afresh.

Strangulation offending

[31]   Counsel accept that Shramka v R is the leading authority for strangulation offending.20 In that case, the Court of Appeal reviewed the legislative history of the offence, noting that it demonstrates Parliament’s intent to signal the distinct significance of strangulation offending as serving multiple policy objectives beyond those generally provided for in the Sentencing Act 2002.21 Strangulation can have a “devastating psychological impact on victims” which makes it a “uniquely effective form of intimidation, coercion and control”.22 It is recognised as a precursor of more serious criminal offending, particularly homicide.23 An abuser who strangles a victim

20     Shramka v R [2022] NZCA 299, [2022] 3 NZLR 348.

21     Shramka, above n 20, at [29].

22     At [22] citing the report of Te Aka Matua o te Ture | Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016) at [1.2].

23     At [18] and [42(a)] citing Strangulation: The Case for a New Offence at [2.26]–[2.28].

may not be intending to kill but is demonstrating that they can kill.24 These factors are directly relevant to an offender’s culpability and increase the need for deterrence and community protection.25

[32]   The Court of Appeal cautioned against adopting an over-mathematical or mechanistic approach, emphasising that sentencing is an evaluative exercise.26 The objective is to establish a starting point which properly reflects the culpability inherent in the offending.

[33]   The Court of Appeal considered the appropriate starting point for strangulation offending generally, identifying eight relevant aggravating features.27 The Court then discussed three levels of strangulation offending, observing that the appropriate categorisation will often depend on the presence and intensity of the aggravating factors. The Court identified the “worst class of strangulation” as that described in the Law Commission’s report on strangulation:28

… a perpetrator enters the victim’s home in breach of a protection order. After an altercation, he strangles her with his hands on and off for several minutes, leaving her struggling for breath, incontinent and unconscious. The victim thinks she will die and knows that the perpetrator has the power to kill her. Because he invaded her home, after the strangulation, she lives in constant fear for her security and life. As a consequence, he has achieved coercion and control over her.

[34]   For offending of this type (involving six of the eight aggravating factors), the Court of Appeal considered that an appropriate starting point would be five and a half years’ imprisonment.29 If the offending also followed a history of strangulation or domestic violence, the Court said a starting point of six years’ imprisonment would be appropriate.30

[35]   The Court of Appeal categorised Mr Shramka’s case as moderate, engaging four aggravating factors (vulnerability, breach of a protection order, aggravated

24     At [23], citing Strangulation: The Case for a New Offence at [1.2], [2.16] and [2.25].

25     M v R [2024] NZHC 3632 at [21] citing the Sentencing Act 2002, s 7(f)–(g).

26     Shramka, above n 20, at [43]–[44].

27 At [42].

28     Strangulation: The Case for a New Offence, above n 22, at [5.42]–[5.44]).

29     Shramka, above n 20, at [47].

30 At [48].

violence, and enduring psychological harm). Mr Shramka had strangled his ex-partner for about half a minute, and she nearly lost consciousness. The Court concluded an appropriate starting point would be three years’ imprisonment.

[36]   Mr Lucas submits that the starting point for S’s strangulation offending should have been two and a half to three years’ imprisonment. Mr Lucas submits that the Judge was incorrect to categorise the offending as “close to the most serious”, as the victim lost consciousness one time (rather than several times) and the offending should not be viewed as repeated, rather it is properly seen as all occurring in a limited time period on the same day. He says this is consistent with the representative nature of one of the strangulation charges. Mr Lucas submits that S’s offending was less serious than the offending in Hugenholtz, on which the sentencing Judge relied.31 Mr Lucas also identifies three cases in which a starting point of two and a half to three years’ imprisonment was applied: Miller v Police,32 Oldham v R,33 and M v R.34 Mr Lucas submits Miller v Police is the most apposite to the present offending.

[37]   In contrast, Mr Teki-Clark submits S’s offending fits squarely within the “worst class” example of strangulation offending as envisaged in Shramka, discussed above. Mr Teki-Clark refers to Hurndell v R, noting the survey of Shramka and other recent cases of assistance undertaken in that decision.35 Mr Teki-Clark submits that there is no directly comparable case to the present offending. He emphasises the duration of the offending and the presence of the child during the offending and says an appropriate starting point would be five and a half to six years’ imprisonment.

[38]   There is confusion about the exact nature of the two strangulation charges— representative or not—and which incidents are said to be associated with which charge. I consider that the most appropriate approach is consider the three incidents of strangulation together for the purpose of assessing the relevant aggravating factors in the present offending. I now turn to consider the presence and intensity of aggravating factors.

31     Hugenholtz v New Zealand Police [2020] NZHC 659.

32     Miller v Police [2022] NZHC 2636.

33     Oldham v R [2024] NZCA 690.

34     M v R, above n 25.

35     Hurndell v R [2023] NZHC 3416 at [29], citing Edwards v Police [2013] NZHC 2825; Ackland v Police [2019] NZHC 312, [2019] NZAR 1112; and Vega v Police [2013] NZHC 2476.

Presence and intensity of aggravating factors

[39]   The victim was vulnerable and became increasingly so over the course of the incidents. She was unwell on the day of the offending. She was strangled three times, demonstrating the physical disparity between her and S and compounding the “terror” she experienced.36 The victim was naked during the offending, including out in public as she tried to escape S and he forced her onto the driveway. At one point she was trapped in a small space, being the wardrobe. Her phone was taken by S, meaning she was unable to use it to seek help.37

[40]   There was aggravated violence. As noted, there were three incidents of strangulation and on one occasion the victim lost consciousness.38 I do not accept  Mr Lucas’ submission that the offending (although addressed in two charges) must be treated as one continuous incident so that it does not constitute repeated offending such that the factor of aggravated violence is engaged. The Court of Appeal distinguishes between repeated strangulations amounting to a prior history, and constituting aggravated violence.39 Here, the three strangulations are properly regarded as amounting to aggravated violence. In one incident the victim lost consciousness. In the others, the summary of facts shows that the strangulation caused her body to “flail about” and affected her memory of events. Whether or not a victim loses consciousness, strangulation can cause what has been described as a “uniquely wide” range of adverse effects.40

[41]   S threatened to kill the victim. This is consistent with the coercive nature of strangulation offending, as already discussed.

[42]   The victim suffered physically from a sore neck, scratches and breathlessness. She also believed S was intending to cause her to lose consciousness or kill her. In its report, the Law Commission noted that “it is the terror that results from strangulation that is at the heart of this kind of criminal conduct”.41 It is apparent the victim has

36     See Strangulation: The Case for a New Offence, above n 22, at [5.44].

37     Oldham v R, above n 33, at [15].

38     It is not suggested there was a loss of continence.

39     Shramka, above n 20, at [42(b) and (e)].

40     See Strangulation: The Case for a New Offence, above n 22, at [2.7].

41     At [5.44].

suffered enduring psychological harm including struggling to find her home a safe place after the offending.

[43]   The young child of the victim and S was present for the entirety of the offending and has experienced ongoing impacts, the full extent of which, while perhaps presently unknown, should not be underestimated.

[44]   I acknowledge there was no home invasion as such, and that S did not go to the victim’s home with a plan to strangle her. But S was subject to a non-association order relating to the victim and her invitation to come to her home was to care for their child because the victim was unwell. In these circumstances, S has breached the victim’s trust that he would attend the home to fulfil his fatherly responsibilities. Further, the victim deserved to be safe in her home.42 Also, the second two incidents of strangulation may be seen as including elements of premeditation. In these circumstances, I consider little significance can be placed on the absence of the factors of home invasion and premeditation.43

[45]   I accept that the numerous family harm incidents between S and the victim as detailed in the Family Violence bail report do not reach the threshold to engage the aggravating factor of history of strangulation or very serious family violence (primarily due to the lack of further available information). I nonetheless again consider the absence of this factor is of little significance in the circumstances.

[46]   Thus, I calculate that five of the eight Shramka factors apply here: vulnerability of the victim, aggravated violence, threat to kill, enduring harm to the victim and harm to the child present. In my view they are each present with a considerable degree of intensity.

[47]   As Boldt J found in Rivers v Police, an angry and abusive response by the offender following a strangulation further aggravates the offending.44 Here, after the third strangulation, S kicked the victim through a baby gate and out of her house into the driveway, while she was naked. I conclude that such incidental violence and abuse

42     Solicitor-General v Hutchinson [2018] NZCA 162.

43     Shramka, above n 20, at [44].

44     Rivers v Police [2024] NZHC 2847 at [36] and [38].

can properly be considered a further aggravating factor for the purposes of applying

Shramka.

Other caselaw

[48]   Against that conclusion, I turn to consider the caselaw referred to by counsel. I do this mindful of the desirability of consistency in sentencing decisions for similar offenders committing similar offences in similar circumstances.45 The Court of Appeal in Shramka contemplated that subsequent decisions, at all levels, would add to the examples available as reference points for comparison.46 I observe that while the sentencing Judge relied on Hugenholtz, I find it of limited assistance, given it was decided before Shramka.47

[49]   In Miller v Police, two strangulations took place shortly after the victim had given birth by major abdominal surgery and the victim lost consciousness twice. This happened at home while a protection order was in place and the circumstances amounted to a threat to kill. A starting point of two years and five months’ imprisonment was applied for the strangulations. An uplift of ten months was imposed for charges of injuring with intent to injure and assault with a weapon. Certain discounts were applied. On appeal, Palmer J found no error in the sentence nor that it was manifestly excessive.48

[50]   In M v R, the defendant kidnapped his former partner when she ended their relationship, detaining her in his car while driving a long distance over many hours, forcing her to remain in the car when she tried to escape, including by strangling her on two occasions and compelling her to take MDMA.49 The sentencing Judge treated the kidnapping as the lead charge, considering a starting point in excess of three years would be appropriate and that combined with the strangulation charges, the minimum starting point  that could be adopted was four years’ imprisonment.50  On appeal,    La Hood J considered a global starting point of four years for the kidnapping and

45     Sentencing Act, s 8(e).

46     Shramka, above n 20, at [45].

47 At [45].

48     Miller v Police, above n 32, at [7]–[9].

49     M v R, above n 25.

50 At [5].

strangulation charges was within range. His Honour considered the strangulation offending to be moderate (involving at least four aggravating features) and that on its own it may well have justified a starting point of around three years.51

[51]   In Oldham v R, the victim was first hit with a backhanded blow to the face, then, when she said she was leaving, Mr Oldham smothered her with his hands and then a pillow to prevent her breathing, “not too long to go unconscious, so like just enough”.52 The sentencing Judge applied a starting point of 28 months. On appeal, the Court of Appeal assessed Mr Oldham’s offending against the factors from Shramka. The relevant aggravating factors were the vulnerability of the victim (due to her pregnancy, smaller size and lesser strength), a history of strangulation offending, the taking of the victim’s phone, the events taking place at home and enduring psychological although not physical harm. The Court concluded that his offending was slightly less severe than Mr Shramka’s, falling between Mr Shramka’s “moderate level” offending warranting a three-year starting point and a more transitory and less harmful lower-level offending which might result in a starting point of as low as two years.53 The Court considered Mr Oldham’s offending was closer to moderate level strangulation offending and therefore, the 28-month starting point was, if anything, lenient.

[52]   In Hurndell v R, Preston J regarded the strangulation offending by Mr Hurndell as significantly more serious than that in Shramka but remaining at the “moderate” level of strangulation offending.54 Vulnerability, aggravated violence and enduring harm to the victim were all factors present to a high degree, where the offending was described by the sentencing judge as “effectively waterboarding and torturing” the victim. Justice Preston concluded that the four-year starting point adopted by the sentencing Judge was available although at the high end of the range.

[53]   I finally note two other recent authorities. In Tuhou v Police, the offending was accepted to be more serious than in Shramka and a starting point of three years for two strangulation charges and one charge of threat to kill, with an uplift of nine months for

51 At [22].

52     Oldham, above n 33, at [5].

53 At [23].

54     Hurndell, above n 35.

separate assaults, was upheld on appeal.55 Mr Tuhou strangled the victim twice, during which she became incontinent, and he threatened to kill her. In addition, Dunningham J noted that also aggravating was that the other assaults involved elements of strangulation and the repetitive nature of Mr Tuhou’s actions.

[54]   In Rivers v Police, Boldt J concluded that a starting point of three and a half years’ imprisonment (rather than the three-year starting point applied by the sentencing Judge) would not have been excessive in circumstances which included a history of serious domestic violence, loss of consciousness, two separate strangulations, a threat to kill, the victim’s vulnerability and the suffering of enduring harm.56 The first strangulation occurred at a service station forecourt in full view of the public, with the second taking place a few days later at home.

Discussion

[55]   Attempting to compare factual circumstances to assess the presence and intensity of an aggravating factor is not an easy task. This is exacerbated where strangulation is charged and considered in concert with other violent offending. In my view, some of the starting points for strangulation offending upheld on appeal in the caselaw discussed above are plainly lenient. For this reason, I cannot, for example, accept that Miller v Police is an apposite comparison to use for present purposes, as suggested by Mr Lucas.57 Ultimately, I find returning to Shramka to be of most assistance in assessing an appropriate starting point for the present offending. This is the approach taken by the Court of Appeal in Oldham v R. The legislative intent in creating a strangulation offence is clear, and sentences for such offending should reflect the seriousness of the underlying act or acts, in line with the Court of Appeal’s approach in Shramka.

[56]   When I compare the presence and intensity of aggravating factors here to that in Shramka, for which the Court of Appeal considered a starting point of three years’ imprisonment was appropriate, I have no doubt that S’s offending is more serious and

55 Tuhou v Police [2024] NZHC 1079.

56 Rivers, above n 44.

57 I note that in Miller v Police, above n 32, the High Court Judge concluded that the sentence  imposed was not manifestly excessive. The Judge did not discuss the application of the Shramka factors in any detail nor express a view on the most appropriate sentence.

therefore deserves a higher starting point. The Court of Appeal considered that had Mr Shramka’s offending involved home invasion and loss of consciousness (adding to the four aggravating factors established) a starting point of four years or more would have been justified.58 Thus, where I have found six aggravating factors to apply with some intensity and the absence of other aggravating factors to be of little significance, a starting point of four years or more would apply for offending that falls between the Court of Appeal’s highest level of offending and the Court’s moderate level of offending. I reiterate that S’s strangulation offending involved three strangulations. I conclude that his offending falls at the high end of the moderate level.

[57]   Mindful of the need to take an evaluative approach, especially given the potential for aggravating factors to overlap, I conclude an appropriate starting point for S’s strangulation offending is five years’ imprisonment. This properly recognises the presence and intensity of the relevant aggravating factors and that approached separately, each of the strangulation charges could warrant a discrete sentence in the vicinity of at least three years.

The starting point for perverting the course of justice

[58]   There is no guideline judgment for attempting to pervert the course of justice. However, attempting to pervert the course of justice strikes at the heart of the administration of justice, and usually warrants a “moderately lengthy term of imprisonment”.59

[59]   Mr Lucas submits that an appropriate starting point would be two and a half years’ imprisonment for the charge of perverting the course of justice, if sentenced alone, as S did not explicitly instruct the victim to lie to police nor ask her not to give evidence.

[60]   Mr Teki-Clark submits that an appropriate starting point would be three to three and a half years’ imprisonment. He says S’s calls were “emotionally manipulative” rather than directly abusive, although violence was insinuated in some

58     Shramka, above n 20, at [52].

59     R v Churchward CA439/05, 2 March 2006 at [14].

calls, and the volume of calls is also aggravating. Mr Teki-Clark notes that the calls were made while S was subject to the non-association order and the victim was vulnerable.

[61]   Counsel referred me to two key authorities. In Miller v R, the appellant wrote a letter from prison to the former partner of a fellow inmate who was awaiting trial.60 The letter was threatening in nature and the appellant asked the witness not to show up at court. The witness gave evidence but was placed in a witness protection programme. The Court of Appeal upheld a starting point of three and a half years’ imprisonment.

[62]   In R v Sharma, the appellant assaulted his partner, and she reported the matter to police.61 He was arrested and remanded in custody. Police obtained recordings of 93 phone calls between the defendant and the victim over the two months leading up to his trial. In those calls, he repeatedly asked the victim to write letters asking for the charges to be dropped and for her to leave town prior to the trial so she could not be contacted. The starting point of two and a half years was acknowledged as “toward the higher end of the range” but upheld on appeal.62

[63]   I consider the present case is somewhat similar to R v Sharma, given the context of family offending, although I accept that S did not explicitly instruct the victim to request the charges be dropped and so the present offending is slightly less serious. S’s 245 calls were, however, emotionally manipulative. Against a background of serious violent offending, the victim had real reason to be afraid of S. The transcript of the calls also shows elements of coercive control.

[64]   As the Court of Appeal held in Miller v R, “the real focus in each case of an attempt to pervert the course of justice must be on the intention behind the attempt and on its potential effect”.63 Although S did not explicitly ask the victim to withdraw her complaint or refuse to give evidence, as in Miller v R and R v Sharma, I consider that

60     Miller v R [2014] NZCA 382.

61     R v Sharma [2017] NZHC 2925.

62 At [27].

63     Miller v R, above n 60, at [11].

his intention was the same. Given the context of family violence and the volume of the calls, the potential effect of this is significant.

[65]   I conclude that three years is the appropriate starting point for this offending, given the very high volume of calls which were emotionally manipulative, balanced against the lack of explicit threats and abusive language.

Other offending

[66]   No issues were raised by counsel as to the sentences imposed for the other offending. The sentencing Judge imposed a three-month sentence for the theft charge, and I consider this was open to him, although I accept that given its close connection to the strangulation offending it could also have been addressed by an uplift as an aggravating factor. While the calculation of the sentence suggests the Judge then imposed a cumulative sentence of three months’ imprisonment for the breaches of the extended supervision order and the driving charges in combination, this is inconsistent with the Judge’s prior comment that these charges are entirely discrete and justify together a sentence of six months’ imprisonment. Mr Lucas submits that the Judge was correct to ultimately impose three months for these charges together. In principle, however, I agree with the Judge’s substantive assessment rather than his final calculation. Accordingly, I consider a further nine months’ imprisonment for the other offending is available.

[67]   Therefore, I would have calculated a global starting point of eight years and nine months’ imprisonment at this stage.

Discount(s)

[68]   I record there is no issue with the guilty plea discount of 10 per cent. I was not provided any information about, nor does the decision under appeal discuss, any further mitigating factors.

Uplift for previous relevant convictions

[69]   The sentencing Judge acknowledged the possibility of an uplift given S’s relevant previous convictions (including wounding, assault and multiple breaches of

sentence) but ultimately did not apply any such uplift, to S’s benefit. Mr Teki-Clark submits that an uplift of nine to 12 months’ imprisonment is appropriate.

[70]   I consider an uplift of nine months is both warranted and necessary here.64 S was subject to an extended supervision order at the time of this offending. At 30 years of age, S has a significant history of violence, including wounding with intent to cause grievous bodily harm, aggravated robbery and assaulting police.

Provisional end sentence

[71]   Applying the discount and the uplift results in a provisional end sentence of eight years and seven months’ imprisonment (rounded down in favour of S).

Adjusting for totality

[72]   The sentencing Judge did not expressly address the requirement in s 85(2) of the Sentencing Act that if cumulative sentences of imprisonment are imposed, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. While it may be that this was in the Judge’s mind it would have been helpful for this to be explicit. The final sentence must be a just sentence.65

[73]   Mr Lucas submits that the sentences for the strangulation offending and the perverting the course of justice offending are “inexorably linked” as the latter offending came about because of an attempt to avoid the consequences for the former offending. Mr Teki-Clark accepts that some adjustment is appropriate, proposing that the overall starting point for the strangulation and perverting justice offending should be set at between seven and eight years’ imprisonment, with the sentencing Judge’s failure to apply an uplift for previous convictions also to be considered in reaching a final sentence.

64     Shramka, above n 20, at [51].

65     Cross v Police [2024] NZCA 136 at [49], citing Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [37] and [49] and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [77].

[74]   A totality reduction is not automatic.66 As this Court has previously said, it is an assessment that should be made at the end of the sentencing methodology, as it goes to the overall appropriateness of the end sentence given the cumulative effect.67

[75]   I agree that some adjustment is required for totality, primarily because of the connection between the two sets of serious offending. Standing back, I consider that a just sentence for all the offending would be seven years’ imprisonment.68

Suggested end sentence structure

[76]   Having concluded a final sentence of seven years’ imprisonment for S’s offending is available, such a sentence could be structured in the following way:

Strangulation offending (concurrent)

(a)impeding breath: four years and eight months’ imprisonment.

(b)impeding breath: four years and eight months’ imprisonment.

Perverting the course of justice

(c)two years and four months’ imprisonment.

Other matters (concurrent)

(a)theft: three months’ imprisonment.

(b)driving while disqualified (x 2): three months’ imprisonment.

(c)breaching the conditions of the ESO (x 2): three months’ imprisonment.

66     Giles v R [2020] NZHC 2372 at [47], citing Ashcroft v R [2014] NZCA 551 at [32].

67 At [47].

68     A totality adjustment of one year and seven months’ imprisonment.

Conclusion

[77]   For the above reasons, I do not consider the final combined sentence imposed in the District Court results in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. I am satisfied the end sentence of six years and nine months’ imprisonment is just and within the range reasonably available to the sentencing Judge particularly given the need to uphold the purposes of denunciation and deterrence in cases of serious family violence.

[78]   Therefore, although the process by which the sentence was reached was ambiguous in parts, the end sentence is not manifestly excessive. On the contrary, as demonstrated by my construction of an appropriate sentence, a slightly higher end sentence would have been justified.

[79]   For the avoidance of doubt, I record that the other orders made by the District Court as to disqualification from driving and the protection order remain. I understand the extended supervision order is suspended while S is incarcerated and will resume on his release from custody69—in those circumstances I make no comment on the availability or otherwise of a minimum period of imprisonment.

Result

[80]The appeal is dismissed.

McQueen J

Solicitors:

Crown Solicitor, Christchurch for Respondent

69     See Parole Act 2002, ss 107Q(2) and 107P(1) and (2)(a).