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. Judge Crosbie allowed a full 25 per cent guilty plea discount and then reduced the sentence by a further two months to account for totality, taking the end sentence to

10  months’ imprisonment.    He  declined  to  substitute  the  sentence  with  home detention.

[7]      Overall  then,  on  the  representative  breach  of  protection  order  charge, Mr Smart  was  sentenced  to  10  months’  imprisonment  and  on  the  speaking threateningly charge a concurrent sentence of two months’ imprisonment was imposed.   The Judge also imposed special conditions for a further six months involving such treatment, counselling, programme or intervention as may be directed including a Stopping Violence Programme.   A non-association order was also imposed.

The appeal

[8]      On this appeal, the appellant submits that there has been an error in the sentence imposed due to:

(a)       the starting point of 12 months’ imprisonment being too high;

(b)the three-month uplift for offending whilst on sentence for nuisance was excessive; and

(c)       there was a failure to distinguish the offending here from that which involves actual violence.

[9]      It is suggested that the 12 month starting point was much higher than other cases involving text messaging and that an appropriate starting point would have been in the vicinity of eight to 10 months’ imprisonment.  The 25 per cent uplift for the offending having occurred while serving a community based sentence for unrelated offending was also seen as excessive.   A more appropriate uplift would have been one month.  Finally, it is accepted that Mr Smart’s conduct amounted to psychological abuse, but it is contended that Judge Crosbie failed to distinguish between offending involving actual physical violence as an aggravating factor and what occurred in this case. The sentence should have taken this into account.

[10]     The adjustment of two months in recognition of totality and personal factors, and the 25 per cent discount for guilty plea were seen as appropriate.  Overall, the appellant maintains that a sentence in the range of six to eight months’ imprisonment should have been imposed.

[11]     In  response,  the  respondent  begins  by  noting  that  there  is  no  tariff  or guideline judgment for this type of offending.   Breaches of protection orders vary enormously in culpability and in  the degrees to which threats, psychological or physical, are made to the protected person.  The respondent submits that the starting point adopted here cannot be considered manifestly excessive in light of the 1,400 individual breaches.  The one month uplift for the intimidation charge also, it is said, cannot be considered excessive, nor can the three month uplift for the offending occurring  while  subject  to  a  sentence  of  community work  for  the  misuse  of  a telephone offending be regarded as excessive.   It is also submitted that what the respondent says has worked out to be a 37.5 per cent discount for the guilty plea was significantly in excess of what should have been imposed.

[12]     In light of this, the respondent maintains the final end sentence of 10 months’

imprisonment could not be considered manifestly excessive.

Jurisdiction

[13]     Mr Smart may appeal his sentence here as of right.3     As the first appeal

Court,4 this Court must only allow the appeal if satisfied that:5

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

[14]     In  Tutakangahau  v  R,  the  Court  of Appeal  confirmed  that  the  Criminal Procedure Act 2011 sentence appeal regime was not intended to signify a departure from the position under the previous regimes prevailing in terms of the Crimes Act

1961, s 385(3), and the Summary Proceedings Act 1957, s 121(3).6

3      Criminal Procedure Act 2011, s 244.

4      Section 247.

5      Section 250.

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

Discussion

[15]    I accept the respondent’s contention here, noted above, that breaches of protection orders vary enormously both in culpability and in the degrees of threat of physical or psychological harm to the protected person.7    In the present case it is accepted that there was no physical harm to the victim, nor did Mr Smart physically approach   the   victim   in   any   way.      The   breach   related   to   text   message communications.  Any harm, it is said, was purely psychological.   That being acknowledged,  the breaches  however,  were extensive with  over 1,400  messages being  sent,  at  an  average  rate  of  about  22  messages  each  day over  the  period

involved. The psychological impact this can have should in no way be undermined.

[16]     Turning to other protection order breach authorities to which I was referred, first in Mitchell v R, Ms Mitchell was convicted of four counts of breaching a protection order involving four voice mail messages she left for her former partner.8

She had previously been convicted of breaching that same order on a number of occasions.  An eight month starting point was adopted to take account of the appellant’s  “appalling  record  of  breaches  of  this  protection  order,  a  record  of sustained harassment and persecution of the protected person which puts this case in a category of its own”.9    The Court of Appeal described the eight month starting

point as “towards the top of the range”.10    Although the most recent charges were

part of a continuum of ongoing breaches, they were at the lower end of the scale. The offending in that case occurred prior to the maximum penalty being increased from two years to three years.

[17]     Ms Mitchell committed further breaches of the protection order resulting in further proceedings.  While in prison she sent 60 letters to the complainant, five of which actually reached him resulting in five charges of breaching the protection order.11      The  remaining  55  letters  were  intercepted  in  the  prison  mail  system

resulting in charges of attempting to breach the protection order.  Ms Mitchell was

7      Anderson v R [2016] NZCA 346 at [26], citing Woods v Police [2015] NZHC 305 at [37] and Mam v Department of Corrections HC Christchurch CRI-2011-409-111, 1 December 2011 at [4].

8      Mitchell v R [2015] NZCA 442, (2015) 30 FRNZ 534.

9      At [22], citing R v Mitchell [2015] NZDC 6871 at [5].

10 At [25].

11     Mitchell v R [2016] NZCA 299, [2016] NZFLR 487.

also charged with attempted threatening to kill based on the contents of one of the intercepted letters.   The sentencing Judge adopted a starting point of 18 months’ imprisonment for the five charges of breaching a protection order.   Even having regard to the 50 per cent increase in maximum penalty, at that point the Court of Appeal held that an appropriate starting point was one of 12 months’ imprisonment. This also took into account Ms Mitchell’s prior history of breaches of the same protection order which were significant.

[18]     The second authority to which I was referred was Beck v Police.  In that case the appellant had pleaded guilty to two charges of breaching a protection order and one  of  breaching  release  conditions.12      The  appellant  and  the  victim  shared  a sporadic relationship for some 10 years marred by a history of domestic violence. After the relationship ended, a final protection order was issued in favour of the victim.  In breach of the protection order the appellant sent 45 text messages to the

victim, one of them stating “I’m going to put you in a coffin”.  The victim informed the police.  The next day, the victim received a message stating, “I’ll see you soon”. Over the next hours the victim received numerous text messages and calls from the appellant.   The appellant then went around to the victim’s house and tried, unsuccessfully, to enter the address using a set of keys.  After the appellant left, the victim called the police.  Notwithstanding the presence of the police, the appellant tried to contact the victim by calling her cell phone and landline approximately 10 more  times.    The  appellant  had  a  history  of  domestic  violence  relating  to  the particular victim.

[19]     A 10 month starting point was taken in relation to the first breach with a five month uplift being imposed for the incident relating to the attempted entry. A further five month uplift was imposed for the history of domestic violence.  This was not disturbed on appeal.

[20]     The next authority was Hart v Police.   In that case the appellant and the victim  were ex-partners who had  two  children  together.13     The appellant  had  a

protection order against him.  He sent a text to the victim in contravention of that

12     Beck v Police [2014] NZHC 931.

13     Hart v Police [2014] NZHC 2741.

order.  He was sentenced to 60 hours community work and supervision for a period of nine months with special conditions.  The sentence was not considered manifestly excessive.

[21]     In the present case the number of messages sent far exceeded any of the cases I have outlined above involving protection order breaches by making contact with a protected person.  Here, Mr Smart also warned the victim not to inform the police along with making various other threats.   This type of conduct can have a severe psychological impact on a protected person.  On the other hand, I acknowledge it is Mr Smart’s first conviction for this type of offending.

[22]     Although the number of breaches were far more extensive, I consider the offending  less  serious  than  the  two  Mitchell  cases  and  perhaps  similar  or  only slightly less serious than Beck.   In both Mitchell cases the appellant continued to breach the protection order despite previous convictions for the same.  Despite this, the Court of Appeal in the second case considered that a 12 month starting point properly took into account the seriousness of the offending as well as the previous convictions.  In Beck the threats were far more explicit.  The 10 month starting point in Beck went undisturbed, although this did not provide guidance on what could have been imposed.

[23]     Given  the  enormous  number  of  messages  sent,  I consider  that  the  most favourable position for the appellant here might have been to adopt a starting point of ten months (rather than the 12 months adopted) as appropriate.  However, that is not the end of the exercise.  It is the final sentence which is under review.

[24]     The appellant goes on to suggest that relative to the starting point, a three month uplift for the offending having occurred while subject to a community based sentence was excessive.  If I accept this and the contention that a one month uplift would have been more appropriate in the circumstances, and noting too that the one month uplift for speaking threateningly is not under challenge, this could result in the suggested 10 months’ imprisonment starting point being uplifted to imprisonment of 12 months.

[25]     A 25 per cent discount for the guilty plea on that adjusted starting point of

12 months’ imprisonment would reduce the possible sentence to one of nine months’ imprisonment.   As an aside, I need to say I do not accept the respondent’s other submission that Judge Crosbie gave a 37.5 per cent discount for the guilty plea.  He quite clearly stipulated that he was providing a 25 per cent reduction for the guilty plea and then he took a further two months off to adjust for the totality principle. That  being  said,  and  taking  into  account  a  possible  reduced  starting  point  and reduced uplift, I am not satisfied that any adjustment for totality would need to be made here.  The end sentence on these calculations would therefore be one in the order of nine months’ imprisonment.

[26]     Notwithstanding these comments, and turning now to the overall sentence of

10 months’ imprisonment imposed by Judge Crosbie here, for the reasons outlined above, I am satisfied generally that this sentence cannot be considered manifestly excessive in the circumstances of this case.   A possible argument does exist, as I have outlined above that, at best for Mr Smart, a reduction in his sentence to one of nine months’ imprisonment might be argued as possibly being justified here.  But, in my view, if this were to be accepted, it would amount simply to “tinkering” with the original sentence.  This is not appropriate here.  The original sentence therefore must stand.

[27]     Mr Smart’s sentence appeal is dismissed.

...................................................

Gendall J

Solicitors:

Christine Lynch, Dunedin

RPB Law, Dunedin