Smart v Police - [2016] NZHC 3092

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2016-412-000029 [2016] NZHC 3092

BETWEEN
SHAUN ROBERT SMART

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 December 2016

Appearances:

M Taylor-Cyphers as Agent for C C Lynch for Appellant
CER Power for Respondent

Judgment:

16 December 2016

JUDGMENT OF GENDALL J

Introduction

[1] The appellant Mr Smart was charged with a representative charge of breaching a protection order1 and threatening to injure knowing that his conduct was likely to cause the person to be frightened or intimidated.2 Mr Smart pleaded guilty to both charges. On 18 October 2016 he was sentenced by Judge Crosbie in the Dunedin District Court to 10 months’ imprisonment. He now appeals that decision.

Background

The offending

[2] Mr Smart is the ex-partner of the female victim. They have two children together. On 17 June 2016 a protection order was issued against Mr Smart which protected both the victim and the children.

1 Domestic Violence Act 1995, ss 19(2)(e) and 49.
2 Summary Offences Act 1981, s 21.

SMART v NEW ZEALAND POLICE [2016] NZHC 3092 [16 December 2016]

[3] Soon after, between 17 June 2016 and 1 August 2016, Mr Smart began and continued to send a stream of text messages to the victim. Many of the messages were abusive and threatening. The victim instructed Mr Smart to stop messaging her but this was to no avail. He sent her over 1,400 text messages, including messages warning the victim not to report matters to the police and threats against her if he was dealt with by the police due to her making a complaint. This conduct resulted in the representative charge of contravening the protection order.

[4] Chillingly, included in his barrage of text messages, Mr Smart also sent several messages to the victim which would have been quite threatening and intimidating, including that he would never stop, there was “nothing holding him back” and that even if he went to jail, “she will keep”.

District Court sentencing

[5] On 18 October 2016 Mr Smart came before Judge Crosbie in the District Court for sentencing. The Judge considered aggravating features of the offending to be the frequency of the text messages, the content of the messages, the fact that there were two separate type offences committed and also that the offending was committed while Mr Smart was subject to a sentence of community work. There were no mitigating features of the offending. An aggravating feature personal to Mr Smart was a recent conviction he had for misuse of a telephone. A feature in mitigation was the guilty plea.

[6] Judge Crosbie took a starting point of 12 months’ imprisonment on the breach of protection order offending. That was uplifted by one month for the charge of speaking threateningly. This was then uplifted by a further three months to reflect that the offending, occurred while Mr Smart was subject to a sentence imposed by the court for similar offending, taking the final starting point to 16 months.…

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 Smart v Police

Details

AGLC: Smart v Police [2016] NZHC 3092
Case: [2016] NZHC 3092
Decision Date: 16 December 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Shaun Robert Smart appealed the sentence imposed by the Dunedin District Court. Mr Smart had pleaded guilty to breaching a protection order by sending over 1,400 text messages to his ex-partner, and threatening to injure her. The District Court sentenced him to 10 months’ imprisonment. The primary issues in this appeal were whether the starting point of 12 months’ imprisonment was too high, whether the three-month uplift for offending while on a community-based sentence was excessive, and whether the court failed to distinguish between psychological and physical violence as an aggravating factor.

The Court considered that breaches of protection orders varied greatly in culpability and threat levels, and that there was no specific tariff or guideline for this type of offending. The Court found that the starting point of 12 months was not manifestly excessive, given the extensive nature of the breaches. The Court also found that the three-month uplift for offending while on a community-based sentence was not excessive, and that the sentence imposed by the District Court of 10 months’ imprisonment could not be considered manifestly excessive.

The Court dismissed the appeal and upheld the sentence imposed by the District Court.

No further orders were made by the Court.

Orders