Stretch v Police

[2016] NZHC 1713

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000176 [2016] NZHC 1713

IN THE MATTER OF	an appeal against sentence
BETWEEN	WARREN RICHARD STRETCH Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	25 July 2016
Counsel:	T Massyn for the Appellant S A Wilson for the Respondent
Judgment:	27 July 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 27 July 2016 at 11.00 am, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:           Public Defence Service, Auckland

Meredith Connell, Auckland

STRETCH v POLICE [2016] NZHC 1713 [27 July 2016]

Introduction

[1]      Mr Stretch appeals against his sentence of three years and three months’ imprisonment  for  charges  primarily  relating  to  violent  offending  against  four children  in  his  care.1      He  appeals  on  the  grounds  that  the  end  sentence  was manifestly excessive; that cumulative sentences were inappropriately imposed; and the Judge failed to take into account mitigating factors.

Background

[2]      Mr Stretch pleaded guilty to 18 charges relating to offending against four children (T, C, A and D) aged between five and 13 at the time of the offending.  The charges were:

(a)       Two charges of injuring with intent to injure, both against T;2

(b)      Nine charges of assault against a child: one against T, four against C;

three against A and one against D;3

(c)       Four charges of assault with a weapon; two against C and two against

A;4

(d)      One charge of assault with intent to injure relating to D; and5

(e)       Two charges of supplying cannabis to T and C.6

[3]      The four victims were the children of a family member.  Mr Stretch and his wife  took  custody  of  them  in  May  2009,  and  the  offending  occurred  between

May 2010 and August 2014.

1      Police v Stretch [2016] NZDC 7864.

2      Crimes Act 1961, s 189(2); maximum penalty five years’ imprisonment.

3      Crimes Act, s 194(a); maximum penalty two years’ imprisonment.

4      Crimes Act, s 202C; maximum penalty five years’ imprisonment.

5      Crimes Act, s 193; maximum penalty three years imprisonment.

6      Misuse of Drugs Act 1975, s 6(1)(d); maximum penalty, eight years’ imprisonment.

Offending against T

[4]      The first charge of injuring with intent to injure occurred at some point between 1 April 2014 and 1 June 2014.  Mr Stretch started yelling at T after learning that  she  had  been  missing  school.    T  went  to  stand  behind  Mr  Stretch’s  wife. Mr Stretch stepped towards T and punched her in the side of the head with a closed fist, causing her head to hit the wall.  He then punched her in the nose with a closed fist, causing blood to splatter up the wall behind her.  A family member intervened and took T into the bathroom.  The assault caused a bloody nose and bruising to T’s lips.

[5]      The second charge of injuring with intent to injure occurred at some point between 4 July 2014 and 21 July 2014.  Mr Stretch threw T against the wall and then punched her twice in the nose with a closed fist, causing her to fall to the ground. He stood over her, punching her approximately twice in the side of the head and three times to the chest.  He also kicked her at least two times in the backside.  The offending caused T a bleeding nose and bruising all over her body.

[6]      The  charge  of  assaulting  a  child  occurred  between  1  January  2014  and

31 March 2014.   T had started going out with a male.   Mr Stretch became angry about this and punched T repeatedly on the arms with a closed fist, causing large bruises.

Offending against C

[7]      Mr Stretch’s first charge against C of assaulting a child occurred between

1 August 2010 and 30 September 2013.  On multiple occasions, Mr Stretch hit C on

the hand with a wooden spoon. This caused C’s hands to turn pink and sting.

[8]      Mr Stretch’s first assault with a weapon charge occurred between 1 May 2011 and 28 August 2014.  On multiple occasions Mr Stretch hit C with a belt.  A black belt with studs was most commonly used.

[9]      The second charge of assault of a child against C occurred over the period between  1  January  2011  and  31  October  2013.    On  more  than  one  occasion Mr Stretch pulled C’s ears, sometimes lifting him off the ground.  This caused C’s ears to turn red and on some occasions to bleed.

[10]     The second assault with a weapon charge occurred between 1 January 2014 and 28 August 2014.  On multiple occasions the defendant hit C on the lower leg with a tree branch causing a red mark.

[11]     Another charge of assaulting a child arose from events occurring between

1 March 2010 and 28 August 2014.   On multiple occasions Mr Stretch slapped C across the back of the head, on the palms or back of his hands, and kicked him in the buttocks or lower legs.  The slaps caused his head to hurt, his hands to sting and his legs to have red marks.

[12]     The final assault charge against C related to offending between 1 May 2010 and 28 August 2014.  Mr Stretch punched C on multiple occasions on the arm with a closed fist.  On other occasions he hit him with a jandal on the calf, palm or back of the hand.

Offending against A

[13]     The  first  assault  charge  related  to  26  May 2011  to  30  September  2013. Mr Stretch hit A multiple times.  On one occasion this caused a small bruise on her back.

[14]     The second assault charge related to offending between 1 February 2014 and

28 August 2014.  On one occasion Mr Stretch kicked A a number of times on her thighs and calves.  The third charge related to offending between 26 May 2011 and

28 August 2014.  On multiple occasions Mr Stretch hit A with a jandal.

[15]     Both charges of assaulting A with a weapon occurred between 1 February

2014 and 26 May 2014.   The first charge relates to an occasion when Mr Stretch asked one of the other children to get the belt and he then hit A on the front of her

thighs and back of the calves causing a bruise on her left thigh and a small bruise on her calf.  The second charge concerned two occasions when Mr Stretch hit A on the buttocks with a tree branch.

Offending against D

[16]     The charge of assaulting D with intent to injure occurred between 1 January

2014 and 28 August 2014.  Mr Stretch backhanded D in the eye and nose causing his nose to bleed.

[17]     The charge of assaulting D occurred between 8 August 2014 and 28 August

2014.  On one occasion Mr Stretch hit D in the stomach.

Supplying cannabis

[18]     The charges of supplying cannabis occurred at some point between 1 January

2014  and  28 August  2014.    T  regularly  smoked  cigarettes  in  the  company  of Mr Stretch.  Mr Stretch told C that he would give him some cannabis if he kept T’s cigarette smoking quiet.  He passed C and T a can which had been converted into a bong, and told the children to inhale the smoke coming out of it.  Both did this at Mr Stretch’s instruction.

District Court sentencing

[19]     After referring to the conduct leading to the charges, the Judge then turned to consider the aggravating features of the offending.  He considered there were nine such features, including the pattern of violence, the vulnerability of the children, the four and a quarter years over which the offending took place, the breach of trust involved, and nature of the violence involving attacks to the head in some instances.

[20]     The Judge then referred to Mr Stretch’s personal circumstances.  Mr Stretch is 52 years old and was assessed as having a medium risk of reoffending, a high risk of harm to others, and a low level of remorse and insight. The factors contributing to his offending were his lifestyle, drug use, propensity for violence, attitudes and sense of entitlement.

[21]     The  Judge  also  referred  to  the  fact  that  Mr  Stretch  had  completed  a Higher Ground   course   and   had   made   good   progress.     A  letter   from   Care New Zealand set out Mr Stretch’s family situation, in particular that his wife had significant surgery and was then in convalescence, and his daughter was diagnosed with a serious illness.  This saw Mr Stretch relapse into alcohol and cannabis use in

2014 which saw a spike in violence.  The Judge observed that there was a pattern of intergenerational abuse, violence, and problematic substance use and that Mr Stretch had perpetrated a pattern of substance abuse and anger in his life.

[22]     The Judge referred to the Court of Appeal’s observations in R v Wilson that sentencing in family violence related situations can be notoriously difficult but for persistent and repeat offending little sympathy is held.7    Relying on the Court of Appeal’s decisions in R v P and R v Te Amo, the Judge noted the appropriateness of cumulative sentences and undertook the sentencing exercise by setting a starting point in relation to the offending against each victim.8

[23]     After going through that exercise, the Judge noted that the total starting point for all offenders was 95 months or 7.92 years.  He stated:9

Quite clearly that is way in excess of where it should be at the end of the day, but nonetheless, if I was dealing with each of those individually, that’s where I would arrive at.

[24]     The Judge then applied a 20 per cent discount to the starting point adopted for each child for remorse and personal circumstances.  The maximum discount of

25 per cent for the guilty plea was also applied.

[25]     The final step in the sentencing exercise involved considering the totality of the sentence.  The Judge was satisfied that he should adjust the end points reached to take into account totality and he did so in relation to each victim.

[26]     Crown counsel helpfully provided a table summarising the methodology used to determine the sentence reached in relation to the offending against each victim,

7      R v Wilson [2004] 3 NZLR 606 (CA).

8      R v P [2008] NZCA 476; R v Te Amo CA435/00, 29 March 2001.

9 At [50].

and the structure of the end sentence imposed. A copy of that table, with some minor modifications, is attached to this judgment.

Approach on sentencing

[27]     Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:

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

(b)      a different sentence should be imposed.

[28]     In any other case, the Court must dismiss the appeal.10   An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.11

[29]     The Court of Appeal has also held that despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.12   Whether a sentence is manifestly excessive is to be examined in terms of the end sentence given, rather than the process by which the sentence is reached.13

Starting point

[30]     On behalf of Mr Stretch, Ms Massyn submits that the starting point adopted by the Judge of 95 months’ imprisonment was excessive.  Ms Massyn submits that if cumulative sentences are to be imposed, they must not result in a total period of imprisonment that is out of all proportion to the gravity of the offending.  She also submits that the 12 months uplift for the other violent offending against T, and the

four month uplift for the cannabis offending in relation to T, was excessive.

10     Criminal Procedure Act 2011, s 250(3).

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].

13     Ripia v R [2011] NZCA 101 at [15].

[31]     I  consider  the  Judge’s  approach  by  assessing  the  starting  point  for  the

offending against each of the victims was appropriate in this case.

[32]     As noted by the Judge, the Court of Appeal has approved the imposition of cumulative  sentences  in  cases  involving  acts  of  family  violence,  occurring  at different times, against different family members.   That approach reflects the importance of recognising that each victim should see that the offending against them has received the appropriate separate penalty, and that a concurrent sentence is

not interpreted as a licence to repeat domestic assaults.14

[33]     The cases cited on behalf of Mr Stretch do not warrant a departure from this principle.  In R v Mwai, the Court of Appeal accepted that a cumulative sentence was appropriate given the offending was against multiple victims and despite the fact that the offending was of a similar nature.15    The Knox and Wilson cases cited do not discuss the question of whether cumulative sentences would have been appropriate and so do not bear upon the issue on appeal.16

[34]     The comparison of the total starting point of 95 months reached by the Judge with other starting points in cases not involving multiple victims, and in which a different methodology has been followed, is not a fair comparison.  As the Judge explicitly recognised, the 95 months adopted was excessive and it was for that reason significant adjustments were later made to ensure the overall sentence was proportionate to the gravity of the offending.

[35]     The starting point and uplift adopted for the offending against T was within range in my view.   The offending against T involved a number of aggravating factors.    The  offending  was  against  a  child;  it  involved  a  breach  of  trust  by Mr Stretch who was in a parental role; the violence involved attacks to the head; the violence was such that on one occasion it required the intervention of a third party; the physical injuries suffered included bleeding and bruising to such an extent that T was unable to attend school; and the offending occurred on multiple occasions over a

four year period.

14     R v P, above n 8 at [31]; R v Te Amo, above n 8, at [8]; S v R [2011] NZCA 178.

15     R v Mwai [1995] 3 NZLR 149 (CA).

16     R v Knox HC Wellington CRI-2007-085-30, 3 June 2008; R v Wilson, above n 7.

[36]     Given those aggravating features, I agree with the Judge that the offending definitely fell within band 2 and may also have extended into band 3 of Nuku v R.17

[37]     The uplift of four months for the cannabis offending was also appropriate given that the offending involved directing T to smoke cannabis and the drug was effectively used as a bribe.

[38]     Overall, I am not persuaded that the approach the Judge took in fixing a starting point for the offences against each victim was in error.  In any respect, the approach on appeal is to consider the end sentence reached, rather than the methodology by which the end sentence was determined.

Mitigating factors not taken into account

[39]     The second ground of appeal is that the District Court Judge failed to take into account Mr Stretch’s participation in the Family Violence Court in the Waitakere District Court, that he was on strict bail conditions for a long period of time, and that he indicated a desire to attend a restorative justice process.

[40]     In  oral  submissions,  Ms  Massyn  submitted  that  a  further  seven  months deduction (one month credit for agreeing to attend a restorative justice conference, and six months for the restrictive bail conditions and other factors) should have been made over and above the 20 per cent allowed by the Judge.

[41]     The  Judge  was  fully  aware  of  the  Family  Violence  Court  programmes attended by Mr Stretch and referred to his progress in his sentencing notes.  The 20 per cent discount took into account this factor.  I reject Ms Massyn’s suggestion that cases within the Family Violence Court result in a more lenient sentence which should also apply here.  There is no basis upon which to depart from the standard methodology in sentencing where factors such as attendance at programmes are

taken into account in adjustments for personal mitigating factors.

17     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

[42]     Nor am I persuaded that a further discount should have been granted for restrictive bail conditions, or attendance at the counselling programmes for long periods of time.  Mr Stretch’s bail conditions required him not to consume alcohol or non-prescribed drugs and to submit to breath-testing.   Those conditions are not onerous in my view, and certainly do not compare to restrictive curfew conditions which can sometimes justify a separate discount.  A discount for attendance at the counselling  programmes  was  already incorporated  into  the  sentence  and  further discount would risk double counting for that factor.

[43]     In terms of a restorative justice conference, I was informed from the bar that such a conference was ordered, but ultimately declined by the conference provider. Reasons for declining the conference were not provided.   A credit for a desire to attend such a conference in those circumstances is not appropriate in my view.  It is also not appropriate to give a discount on the basis of what might have happened had such a conference been convened.  I consider the 20 per cent discount for remorse and other factors, combined with the 25 per cent discount for the early guilty plea, adequately reflect Mr Stretch’s remorse for the offending caused.

[44]     Although the loss of Mr Stretch’s wife is not specifically referred to in the Judge’s  sentencing notes,  there is  reference to  the difficult  personal  and  family circumstances faced by Mr Stretch which are included in the 20 per cent discount.  I am not persuaded that there is a material error in not specifically adjusting for the recent death of Mr Stretch’s wife.

[45]     I am not satisfied therefore that the Judge erred in any significant way in applying a 20 per cent discount for personal mitigating factors and there is no basis to interfere with the end sentence.

End sentence

[46]     Overall I am not persuaded that the end sentence imposed by the Judge was manifestly excessive.  I consider the end point reached and the construction of the various sentences was within range and there is no basis upon which to disturb that sentence.

Result

[47]     The appeal is dismissed.

Edwards J

Victim	Starting point for the offending ([45]-[51])	Discounts ([51]- [54])	Guilty plea([51- 54),	Totality [56]	End Sentences Imposed
T	Initial starting point of two years (lead charge of injuring with intent to injure). Uplifted by 12 months for other violent offending against T. Uplifted by four months for supply of cannabis. Total starting point of 40 months.	20 per cent for remorse and personal circumstances. Reduced to 32 months.	25 per cent discount given. Reduced to 24 months.	Reduced by six months (25 per cent) to 18 months.	Injuring with intent to injure T (x2 charges), 18 months’ imprisonment (CRN2150-2161). Supplying cannabis, four months’ imprisonment (CRN2152). Assaulting a child, six months’ imprisonment (CRN2183). All sentences to be served concurrently
C	Initial starting point of 14 months (lead charge of assault with a weapon). Uplifted by 14 months for other violent offending against C. Uplifted by four months for supply of cannabis. Total starting point of 32 months.	20 per cent for remorse and personal circumstances. Reduced to 25.6 months	25 per cent discount given. Reduced to 19 months (rounded down from 19.2 months).	Reduced by six months (31 per cent) to 13 months.	Supplying cannabis, four months’ imprisonment (CRN2151) Assault with a weapon, 13 months’ imprisonment (CRN2157) Second charge of assault with a weapon, 13 months’ imprisonment (CRN2187) Assault on a child (x4), six months’ imprisonment each (CRN2169-70, 2178-79) The first assault with a weapon charge is to be served cumulatively on CRN2160 All other sentences to be served concurrently.

A	Initial starting point of 10 months (assault with a weapon). Uplifted by eight months for other violent offending against A. Total starting point of 18 months.	20 per cent for remorse and personal circumstances. Reduced to 14.4 months.	25 per cent discount given. Reduced to 10 months (rounded down from 10.8).	Reduced by four months (40 per cent) to six months.	Assault with a weapon, six months’ imprisonment (CRN2156). Assault with a weapon and assault on a child, six months’ imprisonment (CRN2159, 2164-2165, 2172). Assault with a weapon is to be served cumulatively on CRN2157. All other sentences to be served concurrently.
D	Total starting point of five months.	20 per cent for remorse and personal circumstances. Reduced to four months.	25 percent discount given. Reduced to three months.	Reduced by one month (33 per cent) to two months.	Assault with intent to injure, two months’ imprisonment. Assault on a child, two months’ imprisonment (CRN2162). Assault with intent to injure is to be served cumulatively on CRN2156 All other sentences to be served concurrently.
Total	Global starting point would have been 95 months, if dealing with each of the victims individually.	Total end sentence is 39 months’ imprisonment, composed of: ·    18 months for injuring with intent to injure (CRN2160) (as lead charge) ·    13 months’ imprisonment for assault with a weapon (CRN2157) (cumulative) ·    Six months’ imprisonment for assault with a weapon (CRN2156) (cumulative) ·    Two months’ imprisonment for assault with intent to injure (CRN2153) (cumulative)