Sullivan v Police
[2019] NZHC 284
•27 February 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-409-000124
[2019] NZHC 284
BETWEEN MICHAEL RAMEKA ERU SULLIVAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 21 February 2019 Appearances:
A Bailey for Appellant
R Harcourt for Respondent
Judgment:
27 February 2019
JUDGMENT OF OSBORNE J
Introduction
[1] The appellant, Michael Sullivan, was found guilty of three charges on 26 August 2018, relating to separate incidents:
(a)30 September 2016: injuring with intent to injure and breaching a protection order;
(b)7 July 2017: male assaults female and breaching a protection order; and
(c)17 July 2017: male assaults female and breaching protection order.
SULLIVAN v NZ POLICE [2019] NZHC 284 [27 February 2019]
[2] Mr Sullivan was sentenced by Judge Garland on 2 November 2018 to an effective term of imprisonment of two years and three months.1 He appeals that sentence on the basis it was manifestly excessive and that a period of home detention should have been imposed.
District Court decision
[3] Judge Garland decided to impose cumulative sentences, overlaid by the totality principle. He explained that this was because there were three separate and discrete sets of offending. The reduction for totality was governed by s 85(2) Sentencing Act 2002, which provides:
(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
30 September 2016
[4] Commencing with the offending on 30 September 2016, the Judge noted that the tariff case is Nuku v R.2 In Nuku Glazebrook J delivering the judgment of the Court of Appeal, identified three bands applicable to offending under ss 189(2), 188(2) and 191(2) Crimes Act 1961 (where the offending involves intent to injury).3 The bands are:4
(a)Band one – four aggravating factors, relatively low level violence, culpability better related on a less serious charge: sentence less than imprisonment can be appropriate.
(b)Band two – three or fewer of the aggravating factors listed in R v Taueki.5 A starting point of up to three years can be appropriate.
1 Police v Sullivan [2018] NZDC 22816.
2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
3 At [37].
4 At [38].
5 R v Taueki [2005] 3 NZLR 372 (CA).
(c)Band three – three or more of the Taueki factors, with the combination of features being particularly serious: a starting point of two years up to the statutory maximum will apply.
[5] Judge Garland noted the aggravating features of Mr Sullivan’s offending as being:
(a)serious violence;
(b)threats to the victim;
(c)attack to the head with punches and stranglehold on neck;
(d)use of a weapon (a kettle), albeit one that was unlikely to lead to lethal consequences;
(e)vulnerability of the victim who was reliant on a police safety order and protection order; and
(f)impact on the victim, involving both physical injuries and emotional harm.
[6] Judge Garland placed this offending within band two of Nuku, noting that band two has a starting point of up to three years’ imprisonment. His Honour found that a starting point of 18 months would be appropriate on those two charges.
7 July 2017
[7] For the offending on 7 July 2017, the Judge noted there was no tariff case available. His Honour identified the aggravating features as:
(a)serious violence, but acknowledging the victim did not suffer serious injury;
(b)attack to the face by slamming it with a ceramic plate;
(c)stranglehold on throat and applying great force to restrict ability to breathe;
(d)vulnerability of the victim who was reliant on a protection order; and
(e)emotional harm to the victim.
[8] His Honour adopted a starting point of 12 months’ imprisonment for this offending.
17 July 2017
[9] Judge Garland finally considered the offending on 17 July 2017, for which there was also no tariff case. The aggravating factors were found to be:
(a)serious violence;
(b)stranglehold on neck with both hands;
(c)vulnerability of the victim who was reliant on a protection order; and
(d)emotional harm to the victim.
[10]His Honour adopted a starting point of nine months.
[11] If taken cumulatively, the starting point for the three sets of offending would have been three years and three months. Judge Garland, having regard to the totality principle, made the sentence one of two years and three months.
[12] His Honour then identified as an aggravating feature that Mr Sullivan had three previous convictions all related to the same victim, but he had no other convictions. On that basis the Judge did not apply an uplift from two years and three months. His Honour found no mitigating factors. Judge Garland therefore sentenced Mr Sullivan to two years and three months’ imprisonment.
Principles on appeal
[13] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, “an [appellate] court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.7 It is appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8
Submissions
Appellant’s submissions
[14] Mr Bailey, for the appellant, submits that the starting point adopted by the Judge was too high.
[15] In relation to the first charge, Mr Bailey compared the starting point given to those in several other cases, most notably Hohua v Police.9 In Hohua, the offending was described as follows:10
Mr Hohua’s response was to throw the GPS phone unit related to his EM bracelet at his partner. The phone bounced on her head and hit the stomach of a second victim, his partner's sister, who was pregnant. Mr Hohua then grabbed his partner and dragged her by the hair, pulling her hair back violently so she was on her knees, and repeatedly punched her in the head. In the course of this attack, when drawing his arm back he elbowed the second victim in the stomach. He then kicked his partner twice in the head, resulting in a split to the back of her head. The second victim was referred to and monitored at a maternity ward.
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
8 Ripia v R [2011] NZCA 101 at [15].
9 Hohua v Police [2018] NZHC 3175.
10 At [4].
[16] The District Court Judge in Hohua adopted a starting point of 18 months’ imprisonment with an uplift of one month for the male assaults female charge.11 On appeal, Dobson J found that a starting point of 16 months’ imprisonment “would have been sufficient”.12 Mr Bailey therefore submits that the starting point for the first assault in the present case should have been between 12 - 14 months, as it was less serious than the offending in Hohua.
[17] In relation to the male assaults female offending, Mr Bailey relies on the Court of Appeal’s judgment in Wallace v R.13 The appellant in that case had pleaded guilty to two counts of male assaults female, two counts of common assault and one count of intentional damage which occurred over a period between 28 April and 3 May 2011.14 Mr Bailey notes that the District Court Judge had adopted in Wallace a starting point of 15 months.15 The Court of Appeal concluded that this starting point was within the range albeit “stern”.16
[18] Mr Bailey further submits that, while the Judge’s sentencing approach was conventional for sentencing for most offending, an alternative approach would have been better suited to the situation. He submits that the Judge should have adopted an overall starting point for the three offences because they involved the same complainant and were charged at the same time. Mr Bailey submits had the Judge taken that approach, a sentence of two years and three months’ imprisonment could only be viewed as excessive.
[19] Finally, Mr Bailey submitted that, if the Court accepts that the sentence was excessive and reduces it to two years or less, home detention would be appropriate. He relied in particular on the appellant’s age (25 years of age at the time of the offences) and limited criminal history.
Respondent’s submissions
11 At [8] and [10].
12 At [24].
13 Wallace v R [2012] NZCA 546.
14 Wallace v R, above n 13, at [1].
15 Wallace v R, above n 13, at [8].
16 Wallace v R, above n 13, at [23].
[20] Ms Harcourt, for the Police, submits that the starting points adopted by Judge Garland were appropriate. The first set of offending clearly fits within band two of Nuku with six aggravating features identified.17 Ms Harcourt submits that the offending in the present case is more serious than in the cited case of Hohua for two reasons. First, the direct application of a kettle as a weapon involved more deliberation and preparation, and was potentially more harmful, than is involved where a defendant throws their phone unit, as in Hopua. Secondly, the appellant in this case strangled the victim. Ms Harcourt submits that this is a serious form of assault not present in the case of Hohua. For these reasons she contends that the starting point of 18 months was appropriate.
[21] Similarly, Ms Harcourt submits that the offending in the present case is more serious than that in Wallace, the case cited by Mr Bailey in relation to the second and third sets of offending. Mr Sullivan strangled the victim again in both the second and third sets of offending and should therefore attract a higher starting point. Furthermore, Ms Harcourt submits it is a second important aggravating feature that the appellant in the present case slammed a plate into the victim’s face. She submits that the respective starting points adopted of 12 months and 9 months were therefore appropriate.
[22] Ms Harcourt contends that the appellant is incorrect in submitting that the sentencing process was flawed because the Judge took cumulative starting points for each set of offending. His Honour did so “because there are three separate and discrete sets of offending”, an approach Ms Harcourt submits was entirely open to him. Furthermore, she notes that the Judge then applied a significant reduction for totality. Ms Harcourt submits that this ensured the sentence was not unjustifiably high, and meant the Judge did approach matters “in the round” as the appellant argued he should have.
Analysis
[23] The starting point of 18 months taken for the first set of offending was warranted by this offending, which fell within band two of Nuku. The 18 months
17 Nuku v R, above n 2.
adopted by the Judge, as compared to the 16 months in Hohua, was within the range (albeit at the top end) given the number and seriousness of aggravating factors. Features which particularly distinguish this case from Hohua include the vulnerability of the victim (which had led to the imposition of the protection order and a police safety order, the latter less than 48 hours old). They also include Mr Sullivan’s strangulation of his victim. While the violence in Hohua appears to have been more sustained it lacked the range of aggravating features which remain under Nuku an important aspect of assessment of an appropriate starting point. Furthermore, this starting point was the subject of appreciable reduction when the Judge took totality into account for all three sets of offending.
[24] The starting points of 12 months and 9 months for the second and third sets respectively were also within range. Mr Bailey relied on the case of Wallace in submitting that this combined starting point of 21 months was too high, because in Wallace a starting point of 15 months was adopted.
[25] I do not consider Wallace v R to be of helpful assistance in this case in determining what was either the appropriate starting point for the second and third sets of offending or in arriving at the appropriate end sentence. The distinct nature of the second and third sets of offending here made the Judge’s decision to establish a starting point for each appropriate. Neither of the starting points, viewed individually, can be viewed as outside an appropriate range. As it happens, the 15 month starting point upheld by the Court of Appeal in Wallace is marginally above the 14.5 months which might be calculated as representing the starting point of the second and third sets of offending if they are combined. There are distinguishing, aggravating features in this case (as identified by Ms Harcourt above at [21]) which justify the District Court Judge’s starting point.
[26] Taking into account the deduction for totality, the combined starting point of these two sets of offending amounts to around 14.5 months in the present case. This is somewhat lower than the starting point in Wallace, for what Ms Harcourt perhaps rightly submits was more serious offending.
[27] Finally, there is no merit in the appellant’s claim that the Judge was incorrect to adopt a cumulative approach for each set of offending overlaid by the totality principle. The injuring with intent involved in the first offending was different in kind to the male assaults female of the latter counts. The substantial reduction on the basis of totality accorded with the requirements of s 85(2) Sentencing Act.
Conclusion
[28] Judge Garland in sentencing Mr Sullivan adopted appropriate starting points in regard to each set of offending. His Honour did not err either in imposing cumulative sentences or in the reduction he made from starting points on account of the totality of the sentences.
[29]The appeal is dismissed.
Osborne J
Solicitors:
Crown Law Office, Christchurch for Respondent Hansen Law, Christchurch
Counsel: A Bailey, Barrister, Christchurch
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