Smith v Police

[2024] NZHC 858

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-288-000011

[2024] NZHC 858

PETER SMITH

Appellant

v

NEW ZEALAND POLICE

First Respondent

DEPARTMENT OF CORRECTIONS

Second Respondent

Hearing:

16 April 2024

Appearances:

J A Young for the Appellant

A J Goodwin for the First Respondent
No appearances for the Second Respondent

Judgment:

30 April 2024

JUDGMENT OF WHATA J

Appeal

Solicitors/Counsel:

J Young, Whangarei

Marsden Woods Inskip Smith (Office of Crown Solicitor) Whangarei

SMITH v POLICE [2024] NZHC 858

[1]    Mr Smith was sentenced to 23 months’ imprisonment for breach of protection order. He was also sentenced to 12 months for assault of a person with whom you were in a family relationship and six months for breach of release conditions, to be served at the same time as the lead sentence. He appeals the sentence as manifestly excessive.

Facts of offending

[2]    On 16 November 2023, Mr Smith was at home with his partner. He had been consuming alcohol and knocked their dinner off the table. An argument followed with the victim, who then rang the Police. Mr Smith was heard yelling, “You want to fuck with me”, “I’m going to crush your fucking head”, “Who  do you think  you are?”,  “I am going to destroy you”. The victim then went into the bedroom and tried to hold the door closed. Mr Smith forced his way inside the bedroom causing the victim to fall over. The victim sat on the ground in a foetal position covering her head and face with her arms and knees. Mr Smith stood over the victim and hurt her multiple times to the face and head. He also kicked her right leg. The victim was left bleeding from her mouth and nose and had visible swelling to her forehead and to the back of her head. She had a large red mark on her right calf.

[3]    In terms of breach of release conditions, on 7 December 2021, Mr Smith was sentenced to four years and four months’ imprisonment following conviction for wounding with intent to cause to grievous bodily harm and injuring with intent to injure. He was released on 20 February 2023 on standard and special conditions including his condition not to possess, use, or consume alcohol or drugs and the consequences of non-compliance. On 16 November 2023, Mr Smith breached a condition of his parole in that he consumed alcohol while subject to a special condition not to possess, use or consume alcohol or drugs.

Mr Smith

[4]    Mr Smith was one of 18 siblings, brought up in his early years in a three- bedroom house in Wairoa. Domestic violence was normalised in the home, with his mother regularly beaten, his father regularly in fights with other men and his father

regularly beating him. Alcohol abuse was rife, with both parents often drinking until they were comatose.  CYFS  and truancy support were in  their lives all the time,   Mr Smith gravitated to drugs and alcohol at a young age. By 12 he had left school and was drinking to the point of being comatose. This coincided with the beginning of his affiliation with the Black Power through a partner of his older sister. It became, for a time, the foremost cultural influence in his life. By 14 he was in juvenile detention, where he was bullied and humiliated by residents. This anti-social marginalisation continued into adulthood, Mr Smith securing only one job in ten years.

[5]    The last ten years he was in a relationship with the victim, and they have two children together. In 2019 he made up his mind to leave the Black Power and has distanced himself from gangs ever since. But his alcohol abuse continued and with it violence, including an incident involving the victim’s uncle who he gave a beating. This resulted in a four-year sentence that he was still serving when the present offending occurred, again fuelled by alcohol and drugs.

[6]    Mr Smith has expressed remorse for his actions against his partner, saying it “is the worst thing I have ever done.” He completed a AOD treatment programme in Northland Region Corrections Facility and reengaged his counsellor since being recalled to prison. He has applied to attend 12 months intensive inpatient rehabilitation at Moana House. He has acknowledged that he is at rock bottom without any healthy relationships with friends and whānau.

District Court decision.

[7]    The Judge took the breach of protection order as the lead offence the maximum sentence for which is three years imprisonment.1 She identified the violence accompanied by the breach as a serious aggravating factor as was the fact that he was on parole at the time. She then adopted a starting point of two and a half years imprisonment and uplifted that by three months to account for previous history. This resulted in a cumulative starting point of 33 months. In terms of discounts, the Judge

1      Police v Smith [2024] NZDC 2848 at [8].

gave a 25 per cent discount for guilty plea but gave no discount for remorse. The Judge notes:2

You have offended in this way before and I would be surprised if you have not on previous occasions expressed remorse. Real remorse would have led you to make changes and at the very least comply with the condition that you not drink alcohol because you are well aware that that is one of the things which leads you to offend.

[8]    The Judge then refers to background factors. She accepted that those factors are linked to his offending. She then notes:3

But you are now a mature man and you have had ample opportunity to address the factors which have their source in your difficult early life. You have failed to do that. You have failed to take full advantage of the opportunities that you have had, although I do accept that you did avail yourself of the support to at least some extent that was available to you after you were released from prison. But the amount of the discount I give you must be affected by the fact that you have continued down the same path regardless of the harm you have caused others, the knowledge of the harm you have caused them, particularly your partners, notwithstanding the help that you have been given. I am only prepared to give you a 5 per cent discount for the s 27 factors.

[9]    After the above discounts were taken into account, the Judge arrived at an end sentence of 23 months’ imprisonment comprised as follows:

(a)On the charge of contravening a protection order a sentence of 23 months’ imprisonment was imposed cumulatively on the sentences imposed on 7 December 2021.

(b)On the charge of assaulting a person with whom he was in a family relationship, he was sentenced to 12 months imprisonment concurrently with the preceding sentence and cumulative on the sentences imposed on 7 December 2021.

(c)In respect of the breach of release conditions, sentence to six months’ imprisonment to be served concurrently with the present sentence but cumulative with the 7 December 2021 sentence.

2      Police v Smith [2024] NZDC 2848 at [10].

3 At [11].

Grounds of Appeal

[10]Ms Young for Mr Smith submits that:

(a)The Judge wrongly took into account facts not included in the summary of facts. Namely, that the Judge considered Mr Smith had knocked a dinner, she assumed was cooked by the victim, off the table as an aggravating factor.

(b)The starting point of two and a half years was excessive referring to three cases concerning breaches of protection orders where the High Court adopted starting points between seven and 15 months, and other cases involving much more serious offending that had starting points of less than two and a half years. A starting point in the range of 18 –

22 months is suggested referring to Watene,4 Te Tau,5 Williams,6 Heaford,7 Rewita8 and Sharma.9

(c)The Judge should have applied a discount for remorse, especially having regard to the defendants offer to engage in restorative justice and his expressions of remorse in the s 27 and PAC reports, as well as his letter of remorse.

(d)The five per cent discount for background factors was too small having regard to Mr Smith’s childhood exposure to alcohol and drug abuse, violence in the family home, to gangs, limited education, sexual abuse and systemic neglect, and the established nexus between these matters and his offending.

[11]Mr Goodwin for the Police submits that:

4      Watene v Police [2020] NZHC 3011.

5      Te Tau v Police [2012] NZHC 1068.

6      Williams v Police [2014] NZHC 3255.

7      Heaford v Police [2024] NZHC 421.

8      Rewita v Police [2013] NZHC 2175.

9      Sharma v R [2015] NZCA 468

(a)The starting point was stern, but not excessive having regard to the three offences and aggravating features; including, injury to the victim, use of actual violence, vulnerability of the victim, attack to the head, him being on parole at the time, and that he breached his parole conditions by drinking alcohol.

(b)There was no extraordinary remorse in this case that might warrant a discount.

(c)The Court was not wrong to reduce the discount for background factors, noting that this Court in Carroll observed in relation to a repeat offender against the same victim, the discount should be at a lesser rate to reflect the heightened need to denounce his conduct, to protect the community, and to recognise his lower likelihood of rehabilitation.10

Assessment

Starting point

[12]   First, I will address  the  starting  point  of  30  months  for  the  offending.  As explained in Watene, a fine-grained assessment of culpability is needed is cases like this.11 The present offending overall was moderately serious offending of its kind, involving breach of protection order with physical violence, including attacks to the head and a vulnerable victim. The victim was also injured by the attack. She was found by the police bleeding from her nose and mouth and had visible swelling to the forehead and back of her head. In addition, Mr Smith has a history of violence toward the victim and her whānau. He was convicted of assault on the victim in 2019, receiving a sentence of seven months. He was also convicted of wounding with intent to cause grievous bodily harm and injuring with intent to injure the victim’s uncle receiving a sentence of four years. Mr Smith was on parole for that offending when this offending occurred.

10     Carroll v Police [2023] NZHC 3293 at [26]–[29].

11 Above n 4, at [16].

[13]   With those facts in mind, this case is more serious than Watene and Williams. In Watene, a starting point of nine months was adopted by this Court on appeal for offending that involved no injury to the victim. In Williams, a starting point of seven months imprisonment was adopted for a single punch causing a cut to her lower lip and bruising to her jaw.

[14]   However, this case is closer in seriousness to the facts in Te Tau and Rewita. In Te Tau a starting point of one year for an assault involving an attack to the neck and a minor injury.12 The Court found that an uplift of nine months applied by the District Court for the breach of protection order was not justified. The Court then applied an uplift of three months for an extensive history of prior violence towards the victim. This resulted in a combined starting point of 15 months.13 In Rewita, a starting point of 18 months was adopted for an assault causing minor injury to the complainant as well as other damage including damage to her laptop.14

[15]   The offending in Heaford was more serious involving physical injurious violence to a vulnerable victim. The Judge described the assault as “ritual humiliation”.15 The defendant was charged with a more serious charge of assault with intent to injure, which carries a maximum sentence of three years.16 A starting point of 24 months was adopted.

[16]   I pause here to refer also to the case cited by Mr Goodwin, Carroll, where a starting point of 30 months was adopted in respect of one offence of assault with a weapon (which carries a maximum penalty of five years), one offence of assault on a person in a family relationship and three breaches of a protection order.17 The offending in that case was clearly more serious – involving stabbing to the head with car keys causing it to bleed, as well as threats of violence and high levels of intimidation.

12 Above n 6 at [14].

13 Above n 6 at [18].

14 Above n 8 at [12].

15 Above n 7 at [15].

16     Crimes Act 1961, s 193.

17     Above n 10, at [11]–[13].

[17]   Based on this survey of cases, and others,18 I am satisfied that the starting point of 30 months is out of range and excessive. I consider a starting point of 20–22 months is appropriate.

[18]   Turning then to the uplift for prior offending. Mr Smith has a history of violence toward the victim and her whānau. He was convicted of assault on the victim in 2019, receiving a sentence of seven months’ imprisonment. He was also convicted of wounding with intent to cause grievous bodily harm and injuring with intent to injure the victim’s uncle receiving a sentence of four years. Mr Smith was on parole for that offending when this offending occurred. The Judge adopted an uplift of three months or 10 per cent on the starting point this previous history of offending. That was well within range. Arguably it was light. In this regard the following important observations made by Palmer J with regard repeat familial violent offending resonate in this case as well:19

(a)The offending, involving violence and intimidation, occurred in the complainant’s own home, where, if anywhere, she should have been able to expect to feel safe.

(b)Most of the offending occurred in the presence of their child. There are immediate and long-term effects on children who witness violence in their homes, and the complainant’s victim impact statement outlines how this violence has impacted her children.

(c)The multiple incidents of family harm, in the context of a violent and abusive relationship, creates a cumulative effect that often manifests in a complainant living in a constant state of fear or intimidation. That is clearly so here. It involves psychological injuries.

(d)The manifestations of an abuser’s exercise of power and control over an intimate partner victim, such as her isolation and deprivation from assistance, exacerbate her fear. Mr Carroll’s theft of the complainant’s family harm alarm is a good example.

[19]   These observations remind us that the principles of deterrence, denunciation and protection of the public are fully engaged by this type of offending.

[20]   Overall, I consider that a cumulative starting point in the order of 27 months better reflects the aggravating features of the offending and the offender.

18     See also Manuel v Police [2015] NZHC 66; Sorenson v Police [2017] NZHC 2499; Love v Police

[2014] NZHC 2643; and Hamilton v Police [2014] NZHC 2698.

19 Above n 10, at [12].

This comprises 22 months for the combined offending, four months for the prior violent familial offending,20 and one month for the offending while on parole.

Discounts

[21]   While a discount for remorse was available on the facts, it was equally available to the Judge to be circumspect about Mr Smith’s remorse. However, I consider the discount for background factors was too small. It seems largely based on the finding as Mr Smith is a mature man, has had ample opportunity to address personal background factors, and has failed to take advantage of the opportunities that he has had. Mr Goodwin sought to support this approach given the observations made by Palmer J in Carroll.21 In that case, the Judge observed that a lesser discount for reduced agency may be appropriate for repeat offenders. He found that a discount in the range of zero to eight percent was within range for background factors in that case. But the Judge was not attempting to fix any type of tariff for reduced agency discounts for repeat offenders. His observations must be seen in the specific context to which they relate.22

[22]   Moreover, any assessment of a discount for background factors of mature repeat offenders, like all offenders, must be individualised and based on a careful analysis of the offending and the offender. Repeat offending is likely to have its genesis in those background factors so they remain relevant to the assessment of relative culpability and, conversely, the individual’s actual rehabilitation or capacity to rehabilitate may be relevant to the protection of the public and especially the victims of family violence. As the Supreme Court said in Berkland:23

… the focus must be on the facts of the offence and the offender. On the one hand criminogenic background factors tend to be reflected in repeat offending. Sentencing judges generally understand this and the need for patience. But we accept that at some point other sentencing principles however will take over.

20     As to proportionality of uplift see Tamihana v R [2015] NZCA 169 at [26]-[28].

21     Above n 10.

22     Fang v Ministry of Business, Innovation and Employment [2017] NZCA 190, [2017] 3 NZLR 316 at [33].

23     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [94], n 105.

[23]   I also think the following observation of the Court of Appeal in Poi resonates in this case:24

[37]   As the Crown noted, Mr Wilson is no longer a young man, and has a significant offending history. Nevertheless, in our view, his background remains relevant for sentencing purposes. In this context, we agree with the observations of the High Court of Australia in Bugmy that a background of deprivation and disadvantage “may leave its mark on a person throughout life” and that:

Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

[38]   We have considered whether Mr Wilson’s history of offending requires that emphasis be given to the purpose of community protection (rather than, say, rehabilitation) in the sentencing exercise. We are satisfied, however, that it does not. As we have noted above, many of Mr Wilson’s convictions are for low — level offending. He has two convictions for serious violent offences, but they are now very historic, dating back to 1998 and 2003. The current offending therefore seems to be somewhat of an aberration.

(footnotes omitted)

[24]   To put Mr Smith’s case into perspective, while Mr Smith’s record of prior family violence is poor, with six prior convictions for family related violence, two of which were serious including the recent injurious violence to the victim’s uncle, his record is nothing like that of the offender in Carroll. As already noted, in Carroll, the offender was facing considerably more serious familial violence offending charges and a total of nine breaches of protection orders.25 He also had 27 convictions relating to family harm since 2004, and 22 of them in the six years prior to his sentencing. In that case, Palmer J observed that a discount of between zero to eight per cent may have been appropriate.26

[25]   Returning then to the question of discount in this case, like the Judge I find there is a clear causal connection between his background of childhood trauma and his present violent tendencies. A discount of 10 per cent for this type of trauma was available, as it was in Berkland.27 A further discount for Mr Smith’s steps toward

24     Poi v R [2020] NZCA 312.

25 Above n 10, at [1]. Only three breaches formed part of the lead starting point.

26 At [29].

27 At [162].

rehabilitation was also available. He is still deserving of patience.  However, based on the information available to me, Mr Smith is at the beginning of this journey. A further five per cent was warranted.28 The remaining issue is whether this should be reduced to account for the fact he is a repeat offender. Some further care is needed here because that factor is already included in the uplift for prior offending, in the Judge’s estimation, 10 per cent on the start point, and in my estimation 20 per cent of my start point. To my mind, to reduce this discount further risks double counting for the same factor and is not warranted in this case. Notably, no uplift for prior convictions was handed down in Carroll. A 15 per cent discount on the starting point for the offending (22 months) is three months.29

[26]   I therefore come to an end point, inclusive of a 25 per cent discount for guilty plea (6 months), a sentence of 18 months imprisonment. I am also of the view that the end sentence of 23 months that is nearly 25 per cent higher than my end sentence was manifestly excessive.

Result

The appeal is allowed. The sentence of 23 months is quashed. In its place I impose a sentence of 18 months on the lead charge of breach of the protection order. The remaining sentences, to be served concurrently, remain unaffected.

Whata J

28 This is to be compared to the 10 per cent discount afforded to Mr Berkland who had shown a clear commitment to rehabilitation.

29 Applying Moses v R [2020] NZCA 296, [2020] 3 NZLR 583, the discounts are applied to the starting point for the offending per se, not inclusive of the personal uplifts. As the Court in Moses was not specifically dealing with a context where there was a material uplift of any kind, I have taken the step of applying the discount to the combined starting point and uplift figure of 27 months for comparison. The difference is about one month. I am satisfied that the difference is not such as to warrant a different approach.