Street v The King
[2024] NZCA 643
•6 December 2024 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA328/2024 |
| BETWEEN | CHRISTOPHER CHARLES STREET |
| AND | THE KING |
| Hearing: | 7 November 2024 |
Court: | Ellis, Peters and Muir JJ |
Counsel: | T D Clee for Appellant |
Judgment: | 6 December 2024 at 11.00 am |
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Peters J)
Mr Street appeals against a decision of Judge Patel declining to discharge him without conviction on three offences, two of male assaults female and one of assault with intent to injure.[1] Absent success on that appeal, Mr Street appeals against his sentence.
[1]R v Street [2024] NZDC 12007 [judgment under appeal].
An appeal against a refusal to discharge a defendant without conviction, when a sentence appeal is advanced in the alternative, proceeds as an appeal against both conviction and sentence.[2]
[2]Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [9].
An appeal against sentence must be allowed if the Court is satisfied there is an error in the sentence imposed, such that the sentence is manifestly excessive.[3] The Court must dismiss the appeal in any other case.
Background
[3]Criminal Procedure Act 2011, s 250; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
Mr Street committed the offending in 2021 against his then domestic partner. Mr Street pleaded guilty to the offending on the morning of his trial. We adopt the Judge’s description of the offending:[4]
[4]Judgment under appeal, above n 1.
[3] You and [G] were in a relationship for about three and a half years, and you lived together for a period ... The relationship ended around February 2022.
[4] On 17 April 2021, at about 1.15 pm you and [G] were at home, and you were arguing. You were standing next to a dresser. You picked up a bottle of conditioner and threw it at [G]. Fortunately, that missed her, and it hit the wall behind her. You grabbed [G] by the shoulder and pushed her up against the bedroom. You then you kneed her between the legs, and this caused her to fall to the ground. You then left the room. That forms the basis of the charge of male assaults female.
[5] On 1 May 2021, at about 11 pm, you and [G] were at home. Again, you were arguing. You were sitting at a computer, and you yelled at [G]. She responded by getting up in your face and saying: “how do you like being screamed at?” You stood up, took [G] by the throat with your right hand and threw her into the corner of the room. This caused her to hit her head on the wall and she was dazed as a result. When [G] stood back up, you grabbed her by the throat with one hand and threw her into a chair in the middle of the room, which caused the chair to fall over. [G] stood back up again, you grabbed her by the throat again and threw her into the television. You said to her: “you’ll learn to shut up,” and walked downstairs into the living room.
[6] [G] followed you. You again grabbed her by the throat and pushed her into a half height concrete wall in the centre of the living room, which caused her to fall to the ground. [G] stood up and said: “you can kill me if you want but we’re going to have this conversation.” You responded by punching [G] with a fist three times, hitting her in the forehead and the jaw, and you threw her into a beam. You went and locked yourself inside the bathroom. After that you went downstairs into the bedroom.
[7] [G] went to the dining room and took photographs of her injuries. She then went downstairs to the bedroom where you were and confronted you while recording the interaction on her mobile phone. She attempted to comfort you and she encouraged you to get help. You responded by punching her in the head.
[8] You then went upstairs to the bedroom that you and [G] shared, and she followed you. She lay down on the bed next to you and tried to comfort you and convince you to get some help. You pinned [G]’s hand down with your left hand and restricted her breathing with your right hand. You then stood up, curled your knees into your chest and jumped down onto [G]’s ribs. You told [G] that you were sorry and then you left and went into the office. [G] made a further recording of her injuries. That forms the basis of the charge of assault with intent to injure.
[9] On 21 September 2021 at about 11 am you and [G] were at home. [G] was in the kitchen, and you were in the lounge. The two rooms are separated by a sliding door and the two of you were talking to each other through that door.
[10] You were asked by [G] to put the rubbish in the bin not next to it. You became angry, charged at the door between the two rooms and punched a hole in it with your fist. At the same time, you told [G]: “to shut the fuck up.” You then picked up a toy that belonged to a dog that you owned and threw it through the gap in the door towards [G].
[11] [G] entered the room and sat on the end of the couch. You told her that you were going to go for a walk, and she responded by saying: “Well try not to punch a hole in anything.” This angered you and you told [G]: “To fuck off” and pushed her backwards onto the couch.
[12] You walked away from [G] towards the door. She followed you and picked up a hairbrush and hit you with it three times on the back of the head while telling you to stop hitting her. You then turned around, threw [G] into the couch, and held her down by the head. You attempted to leave again by walking towards the door. [G] followed you and punched you once from behind on the bottom half of your body. You turned around and pushed her into the dog crate and then you left the room. This incident was captured on CCTV footage that had been set up within the home that you were sharing. This forms the basis of the second charge of male assaults female.
[13] As a result of the assault on 17 April 2021, [G] suffered bruising and swelling to her crotch area. As a result of the assault on 1 May 2021, [G] received a split lip from the punches, bruising to her back, a cut on her arm, an injury to her wrist, and marks on her neck. As a result of the assault on 21 September 2021, [G] received bruising to her bottom and tenderness to the right side of her neck.
Having declined Mr Street’s application for a discharge without conviction,[5] the Judge adopted a starting point of two years’ imprisonment on the lead offending (being the May 2021 offending, addressed in the assault with intent to injure charge), and then uplifted that sentence by two months for each charge of male assaults female.[6] The Judge then allowed discounts totalling 60 per cent, reducing the end sentence to 11 months’ imprisonment.[7] Ultimately, the Judge imposed a sentence of six months’ community detention on the lead offending, and 12 months’ supervision on each of the male assaults female charges.[8]
Appeal against refusal of discharge without conviction
[5]At [48].
[6]At [55]–[56].
[7]At [57]–[58].
[8]At [62]–[63].
The Judge adopted the accepted approach to determining an application for a discharge without conviction: assess the gravity of the offending having regard to all relevant aggravating and mitigating factors; identify those consequences of which there is a real and appreciable risk; and determine whether those consequences are out of all proportion to the gravity of the offending.[9] Only if satisfied those consequences are out of all proportion may the Court grant the application.[10]
[9]At [19], citing Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.
[10]Criminal Procedure Act, s 107.
In this case, the Judge assessed the offending as of moderate gravity.[11] The Judge did not accept the consequences of conviction were out of all proportion to the gravity of the offending, and so dismissed the application.[12]
[11]Judgment under appeal, above n 1, at [38].
[12]At [46]–[48].
Mr Clee submits the Judge made two principal errors in his consideration of the application. First, Mr Clee submits the Judge overlooked or gave insufficient weight to particular mitigating factors and thus took too harsh a view of the gravity of the offending. Secondly, Mr Clee submits the Judge erred in determining the consequences of conviction were not out of all proportion to the gravity of the offending.
Assessment of gravity of offending
There is no challenge to the aggravating factors the Judge identified, these being:
(a)Mr Street had committed three violent offences in the space of five months, and “family violence” offences at that;
(b)the offending included Mr Street putting his hands around the victim’s throat and attacks to her head;
(c)the victim had been vulnerable when Mr Street jumped on her ribs in the May 2021 offending; and
(d)the effects of the offending on the victim.
The mitigating factors the Judge identified were:
(a)Mr Street’s guilty pleas;
(b)that Mr Street had attended two Living Without Violence courses;
(c)Mr Street’s prior good character, which included both an absence of prior convictions and assistance to a charity assisting young people dealing with mental health issues; and
(d)that Mr Street has had to grapple with his own mental health difficulties.
The Judge also took into account that these latter difficulties were exacerbated by the consequences of COVID‑19 related lockdowns and/or restrictions. Indeed, the Judge acknowledged those restrictions may have contributed to the September 2021 offending, which occurred during a lockdown.
Conduct of the victim
Mr Clee submits the Judge erred in failing to accept his submission that the conduct of the victim contributed to the May and September 2021 offending.[13]
[13]Sentencing Act 2002, s 9(2)(c).
The gist of Mr Clee’s submission, to the sentencing Judge and on appeal, was that on each of these occasions Mr Street had sought to extricate himself when the argument began, but the victim had pursued and/or antagonised him. Mr Clee thus submits that the Judge erred in not treating the conduct of the victim as a mitigating factor.
Although the Judge did not address the submission as to the May 2021 offending, he considered that the victim’s actions during the September 2021 incident were in response to Mr Street’s actions, which included swearing at the victim and punching a hole in a wall (see [10] of the judgment under appeal, quoted above at [4]). Mr Clee takes the point that Mr Street was not charged with punching a hole in the wall. That may be so, but it misses the point that it was Mr Street’s initial actions which led to the victim’s response. It is irrelevant that Mr Street was not charged with those preceding actions.
As to the May 2021 offending, the circumstances of the incident do not come close to mitigating culpability. By the time Mr Street started to walk away, he had already put his hand(s) around the victim’s neck three times, and thrown her into a wall, a chair, and a TV.
The reality is that Mr Street was the initial aggressor in all of the incidents, and nothing the victim did or said affects that position. Lastly, we note that in Taueki this Court said that culpability may be reduced if “there was serious provocation which was an operative cause” of the subsequent violence.[14] That was not the situation in this case.
COVID-19
[14]R v Taueki [2005] 3 NZLR 372 (CA) at [32(a)].
Mr Clee next submits the Judge erred in failing to recognise that Mr Street was adversely affected by the consequences of COVID-19 restrictions throughout the period of offending, and not solely at the time of the September 2021 offending when Auckland was in “lockdown”.
In his affidavit of 11 May 2024, Mr Street refers to the mental health difficulties with which he has had to contend since his teenage years (Mr Street is now 30), and how the COVID-19 restrictions affected him. Mr Street says that his employer required him to work from home, even outside periods of lockdown, and being isolated at home gave rise to a series of issues, causing him to act in a way he usually would not. As a result of working from home, Mr Street says he lost the social connections and experiences that he relied on to be well. He got bored and began to drink heavily — so much so that he entered a rehabilitation facility in October 2020.
The essence of Mr Street’s affidavit is that the disruption to his usual daily life and interactions had a devastating effect on his mental wellbeing.
Mr Street supported this evidence with an affidavit of 7 April 2024 from Ms Tina Jones. Ms Jones is a “registered counselling practitioner” (presumably registered with the New Zealand Association of Counsellors) and is also the founder of the charity referred to at [10](c) above. Ms Jones, who has had a longstanding connection with Mr Street, speaks highly of him, and of the considerable assistance Mr Street has rendered to others.
In her affidavit, Ms Jones says that the lockdowns were devastating for some people and that her organisation was “swamped by what would be considered ‘normal’ homes that were suddenly volatile with serious and often violent consequences”. Ms Jones says that she has never known Mr Street to be aggressive or violent, and that lockdowns put vulnerable people, such as Mr Street, into situations “that no competent clinician ... would consider safe or appropriate”.
On the basis of this evidence, Mr Clee submits the Judge took too narrow a view of the issue.
We have no reason to doubt that the COVID restrictions had an adverse effect on Mr Street’s mental health. We accept that he may still have been affected in April and May 2021. That said, Auckland was at Alert Level 1 between 12 March and 17 August 2021. Accordingly, even if Mr Street was still having to work from home at the time, we expect the adverse effects of doing so could have been ameliorated to some extent by activities undertaken outside of work hours and indeed on weekends — when the April and May offending occurred.
In any event, whatever the position may be, the extent of Mr Street’s offending means that any additional allowance which might be made for this factor would not achieve a significant reduction in the gravity of the offending, so as to put Mr Street closer to the discharge he seeks.
Lastly, Mr Clee submits the Judge may have, wrongly, considered alcohol played a part in the offending. It is not apparent to us the Judge did so, and we say no more about the point.
Consequences of conviction
The Judge accepted that convictions would carry distress, embarrassment, and a loss of pride. However, the Judge declined to accept that there was a real and appreciable risk that convictions would compromise Mr Street’s ability to regain employment in the insurance industry — there being no evidence to support that submission.
Mr Clee submits that the Judge erred in declining to accept this consequence and he submitted to us, as he did to the Judge, that this consequence could be inferred from this Court’s decision in Brown v R.[15]
[15]Brown v R [2012] NZCA 197.
In Brown, this Court accepted that there was a real and appreciable risk that a conviction, in that case for assault, would “severely compromise the appellant’s ability to obtain employment” in the information technology sector (IT).[16] Mr Clee submits insurance is a similarly “white collar” field and the same consequence can thus be assumed.
[16]At [27].
We do not accept this submission. Quite aside from whether it would ever be appropriate to infer a consequence of this nature, the present case is different to Brown.
In Brown, the appellant had embarked on study in the IT field. He did not have employment in that industry, but rather was intending to seek a position when he had completed his qualification. The appellant adduced affidavit evidence from a consultant in the IT field which satisfied the Court that, as a novice, the appellant would encounter considerable difficulty in gaining such a position if he had a conviction for assault. As Judge Patel said in the present case, Mr Street’s position is different, in that he has ten years’ experience in the insurance industry. It is thus reasonable to assume he might have less difficulty in persuading an employer to engage him, even with convictions.
To conclude, in the absence of evidence to the contrary, the Judge did not err in declining to accept that there was a real and appreciable risk to Mr Street’s future employment prospects, and we are not persuaded that the Judge erred in dismissing Mr Street’s application for a discharge without conviction.
Sentence appeal
Mr Clee submits the end sentence was manifestly excessive, as a result of the Judge adopting too high a starting point — two years’ imprisonment — on the lead offending. Mr Clee submits the appropriate starting point was 12 months’ imprisonment. That starting point, with the same uplifts and reductions, would mean an end sentence of six to seven months’ imprisonment. Mr Clee proposes a final sentence of three months’ community detention in place of the six months imposed.
In setting the starting point, the Judge referred to R v Richardson, Teka v Police, Kanuta v R, Nelson-Wright v Police, Goodman v R, and Hansen v R.[17]
[17]R v Richardson [2012] NZHC 1465; Teka v Police HC Auckland CRI-2009-404-253, 7 September 2009; Kanuta v R [2016] NZHC 436; Nelson-Wright v Police [2015] NZHC 2302; Goodman v R [2016] NZCA 64; and Hansen v R [2020] NZHC 2129.
None of these cases is on all fours with the present, but ultimately the Judge settled on Hansen as the most relevant. In Hansen, a starting point of two years’ imprisonment was upheld on appeal for one representative charge of assault with intent to injure.[18] The charge covered three separate incidents, all of which were serious. Each incident involved Mr Hansen obstructing the victim’s breathing in some way, and on one occasion the victim lost consciousness.
[18]Hansen v R, above n 17, at [32]. See also [12] of that decision, where the High Court Judge notes that the starting point was set by reference to both the representative charge and another charge of assault with intent to injure. No uplift was given for the second charge.
We accept the offending in Hansen was more serious than the present and, given that, Mr Street might consider he was entitled to a lower starting point. That said, there are material differences, for instance as to the charges, between the cases referred to in [33] and the present case, such that those cases are not particularly helpful.
In any event, the short point on the sentence appeal is that even if the starting point was a relatively high one, the end sentence imposed cannot be considered manifestly excessive because of the generous discounts totalling 60 per cent applied by the Judge.
Result
The appeals against conviction and sentence are dismissed.
Solicitors:
Crown Solicitor, Manukau for Respondent
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