Swinburne v Police
[2024] NZHC 619
•20 March 2024
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2024-425-000004
[2024] NZHC 619
BETWEEN JAMIE MICHAEL SWINBURNE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 March 2024 Appearances:
K A Owen for Appellant
M B Brownlie for Respondent
Judgment:
20 March 2024
JUDGMENT OF EATON J
(appeal against sentence)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
SWINBURNE v NEW ZEALAND POLICE [2024] NZHC 619 [20 March 2024]
Introduction
[1] On 16 January 2024, Jamie Swinburne was sentenced to two years one month’ imprisonment by Judge Harvey on charges of:1
(a)assault with intent to injure (x2);2
(b)threaten to kill (x2);3
(c)assault on a person in a family relationship;4
(d)resisting police;5
(e)disorderly behaviour;6 and
(f)wilful damage (x2).7
[2] Mr Swinburne appeals that sentence. He says the sentence is manifestly excessive as a consequence of the Judge failing to allow deductions for personal factors.
The offending
[3]Mr Swinburne had offended over two days in July 2023.
[4] At 12.00 pm on 23 July 2023, Mr Swinburne arrived on a bike at a residential address the victim had stayed overnight at with friends. The pair had until recently been in a relationship for two years. At Mr Swinburne’s demand, the victim came to the doorway of the house. He grabbed her by the hair and dragged her down the street for approximately 140 metres, telling her, “I’m going to kill you”. He then let go of
1 Police v Swinburne [2024] NZDC 711.
2 Crimes Act 1961, s 193; maximum penalty three years’ imprisonment.
3 Section 306; maximum penalty seven years’ imprisonment.
4 Section 194A; maximum penalty two years’ imprisonment.
5 Summary Offences Act 1981, s 23(a); maximum penalty three months’ imprisonment or a $2,000 fine.
6 Section 3; maximum penalty three months’ imprisonment or a $2,000 fine.
7 Section 11(1)(a); maximum penalty three months’ imprisonment or a $2,000 fine.
her hair and they continued walking toward his address. While crossing a street, Mr Swinburne attempted to punch the victim in the face. He then walked ahead of her, pushing his bike and telling her to hurry up. After she made a comment to him, he threw his bike down, ran back and pushed her through a hedge and onto a concrete driveway before telling her to get up and keep walking.
[5] At 12.30 pm that day, police were alerted to the incident. Shortly after, Mr Swinburne was observed on foot nearby. When police spoke to Mr Swinburne, he reacted belligerently and aggressively, throwing his bike to the ground, clenching his fists and yelling. He told police to “fuck off” and not touch him. He refused to comply with police directions while police were trying to restrain him. He told police he would remember their faces and come after them.
[6] A Police Safety Order (PSO) was served on Mr Swinburne for a 7-day period (to expire at 2.00 pm on 30 July 2023). Contrary to the PSO, Mr Swinburne contacted the victim the following day via Facebook Messenger and visited her address.
[7] Five days later, at 3.30 pm on 28 July 2023 and again in breach of the PSO, Mr Swinburne entered the victim’s address through the back door. They began to argue about money. Fearing for her safety, the victim texted her father to pick her up and take here away from the address and Mr Swinburne.
[8] The victim went into the bathroom and sat on the toilet. She told Mr Swinburne to get out of the house. He followed her into the bathroom and kicked her in the upper torso and ribs area four to five times. She slid backwards and hit her back on the cistern. He punched her numerous times. The victim went into the kitchen and sat down. Mr Swinburne continued to punch her. He said, “I’m going to kill you” and punched her in the back of the head, causing her to momentarily black out.
[9] The victim’s father arrived shortly after. The victim began packing her belongings. Meanwhile, Mr Swinburne found the victim’s phone and threw it on the ground, breaking it. As he was leaving the property, he smashed multiple ceramic pot plant holders.
[10] The victim and her father began to drive away in her father’s vehicle. Mr Swinburne walked past the vehicle, turned around, ran back towards the vehicle and kicked the bonnet, denting it.
[11] As a result of the assaults, the victim had pain in her ribs, bruising on her upper back and right side of her torso, lumps on the back of her head, and other bruises about her body.
District Court decision
[12] Judge Harvey observed that Mr Swinburne’s previous history consists primarily of breaches of court orders and, relevantly, convictions for assault, male assaults female, wilful damage, and threatening. While the Judge acknowledged the pre-sentence report assessed Mr Swinburne as at medium risk of re-offending, the Judge described this as “very generous”.
[13] The Judge indicated that, had he dealt with the offending on a cumulative basis, he would have adopted an overall starting point of 37 months’ imprisonment — 18 months for the offending on 23 July and 19 months for the offending on 28 July. However, the Judge considered concurrent sentences could properly deal with the charges having regard to the totality principle.
[14] The Judge acknowledged Mr Swinburne was entitled to a 25 per cent guilty plea discount and that, having accepted the s 27 report explained in part Mr Swinburne’s offending, he was entitled to at least “some discount” for his background.
[15] The Judge took the threatening to kill charge on 23 July as the lead charge and imposed a sentence of two years one month’ imprisonment and concurrent sentences in relation to the other offences. The Judge did not articulate the starting point adopted or the discount allowed for personal background matters.
[16] The Judge did not refer to the possibility of an electronically monitored sentence. The pre-sentence report dated 20 December 2023 records the author’s understanding that consideration of an electronically monitored sentence was a
consequence of a request made by counsel for “completeness”. The report did not make a recommendation as regards an electronically monitored sentence because a request for information from Oranga Tamariki had not been received. However, in a subsequent memorandum dated 8 January 2024, that information had been received. Concerns were expressed as regards the welfare of children within the proposed address. The PAC report recommended a sentence of imprisonment.
Submissions
Appellant submissions
[17] Mr Owen for Mr Swinburne, submits the sentence was manifestly excessive because the Judge failed to impose discounts for guilty pleas, personal background matters in the s 27 report and Mr Swinburne’s willingness to engage in restorative justice. Mr Owen invites this Court to find the Judge adopted a starting point of two years one month imprisonment and then erred by not applying discounts for the mitigating factors as required in the methodology in Moses v R.8
[18] Mr Owen submits discounts of 25 per cent for guilty plea, 10 per cent for background, and five per cent for willingness to participate in restorative justice were warranted. Applied to the sentence of two years one month’ imprisonment, this would result in an end sentence of 15 months’ imprisonment.
Respondent submissions
[19] Mr Brownlie, for the Police, submits that, because the Judge indicated the appellant was entitled to a 25 per cent plea discount and a discount for background matters, the two years one month’ imprisonment must be the intended end sentence. Mr Brownlie submits that end sentence was not manifestly excessive.
[20] Mr Brownlie acknowledges the Judge did not follow the orthodox methodology and articulate how the sentence was constructed but submits this will not affect the end sentence unless it is manifestly excessive. He invites the Court to engage in a re-sentencing process given the absence of reasoning.
8 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
[21] With reliance on Zimmerman v Police9 and Samuel v R,10 Mr Brownlie submits a global starting point of three years’ imprisonment is appropriate. He submits Mr Swinburne’s offending was prolonged, the victim was vulnerable given she was seated on a toilet and chair, and the threat to kill was serious because it was said when the victim momentarily blacked out. Mr Brownlie submits his offending was therefore more serious than the cases referred to.
[22] Mr Brownlie submits an uplift of 10 per cent is appropriate to reflect Mr Swinburne’s previous history, including various assault offences, wilful damage, and resisting police. Mr Swinburne has relevant Youth Court notations which Mr Brownlie submits should also be taken into account, albeit he accepts they might be given lesser weight.11
[23] Mr Brownlie accepts the 25 per cent discount proposed by the Judge for guilty pleas and submits an additional five per cent for the matters in the appellant’s s 27 report is appropriate. Mr Brownlie refers to Blackburn v Police, where Preston J allowed a 10 per cent discount for background matters, including a disconnection from Māori culture, history of drug and alcohol addiction (the appellant’s methamphetamine addiction developing after trying to wean himself off oxycontin following a serious injury), exposure to alcohol and serious violence in childhood, and associations with the Mongrel Mob through his father.12
[24] Counsel submits the number and extent of the criminogenic factors identified in Blackburn is greater than the present case. Mr Brownlie submits Mr Swinburne’s background is more akin to those of the appellant in Rushton v Police, where Dunningham J allowed a five per cent discount for the appellant’s early exposure to violence and witnessing violence against his mother, leaving school without any formal qualifications, experience with homelessness, mental health difficulties, and the connection between the appellant’s use of synthetic cannabis and his offending.13
9 Zimmerman v Police [2021] NZHC 1762.
10 Samuel v R [2012] NZCA 376.
11 R v Putt [2009] NZCA 38.
12 Blackburn v Police [2023] NZHC 3780.
13 Rushton v Police [2023] NZHC 2754.
[25] Mr Brownlie does not accept a discount for remorse is warranted. Although Mr Swinburne was willing to participate in a restorative justice conference, he made comments to the author of the PAC report suggesting he lacks insight and may be seeking to minimise the offending. Mr Swinburne said he accepted the summary of facts “in principle”. Mr Brownlie contends this points to a lack of accountability, which is inconsistent with the notion of remorse.
[26] Adopting the prosecution submission as to starting point, uplift and deductions, the end sentence would be two years and four months’ imprisonment. Mr Brownlie submits the sentence of two years one month’ imprisonment is not manifestly excessive, and the appeal should be dismissed.
Relevant legal principles
[27] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence will be successful only if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.14 A court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.15 When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.16
Analysis
[28] Rather than determine a global starting point reflecting the totality principle and then adjusting that starting point to reflect aggravating or mitigating personal factors, including the possibility of an uplift for previous convictions, the Judge imposed an end sentence of two years and one month’ imprisonment on the two
14 Criminal Procedure Act 2011, s 250(2) and (3).
15 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ripia v R [2011] NZCA 101 at [15].
16 Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].
charges of threatening to kill and lesser concurrent sentences in relation to each of the other offences. The Judge did not articulate how the sentence was constructed.
[29] That leaves the construction of the sentence open to scrutiny. Mr Brownlie submits the 25-month sentence could only have been intended to be the end sentence. Mr Owen submits the sentence imposed was not intended by the Judge to be the end sentence but the starting point. I am quite satisfied Mr Brownlie must be right. In my view, it is inconceivable that having assessed the starting point on a cumulative basis as 37 months’ imprisonment, the Judge resolved to reduce the starting point to 25 months’ imprisonment (nearly one-third) and then unintentionally omitted (forgot) to allow any discounts.
[30] I appreciate the Judge was likely dealing with Mr Swinburne in a busy list court. That might well explain why the Judge did not follow the orthodox approach to sentencing. However, I do not find Mr Owens’s contention to be plausible.
[31] That the Judge did not articulate the components of the sentence does not mean the appeal must be allowed. I agree with the observation of Robinson J in Hayde v Police:17
... [A] failure to give reasons will not necessarily result in a successful appeal. The focus of such an appeal is the end sentence, not how the sentence is constructed. As such, it is only if the failure to give reasons resulted in a manifestly excessive (or inadequate) sentence that an appeal should be allowed.
(emphasis added)
[32] To determine whether the sentence imposed was manifestly excessive, I agree it is appropriate that I re-examine each of the component parts of the sentence. Effectively I am required to re-sentence Mr Swinburne.
[33] The first consideration is the global starting point. I must have regard to the aggravating facts and comparative cases. This offending was serious — it occurred over a two-day period, the appellant punched and kicked the victim multiple times, including around the head, which resulted in bruising and her momentarily blacking
17 Hayde v Police [2021] NZHC 3218 at [18].
out, and he dragged her by the hair. He made threats to kill. That the appellant sought out the victim to achieve these objectives, first on 23 July 2023, when she was staying overnight with friends, and again at her home on 28 July 2023 after a PSO was served on him, aggravates the offending. Beyond the physical assault, Mr Swinburne damaged property and resisted arrest.
[34] In Zimmerman v Police, the appellant had been sentenced in the District Court to two years six months’ imprisonment, comprising a starting point of two years two months’ for the assault with intent to injure charge, a six-month uplift for an assault of a person in a family relationship charge, a further four-month uplift for wilful damage and threatening the victim, and two months for previous convictions.18 This was overturned on appeal and a starting point of two years six months’ applied for all charges, with a 2-month uplift for previous convictions.19 The end sentence after reductions for guilty plea was two years two months’ imprisonment.20 The appellant in that case had punched his partner of three months under the chin, knocking her backwards where she landed on the road. He also smashed her phone on the footpath. A week later, Mr Zimmerman was arguing with the victim when he became angry, smashed her room and destroyed bedroom furniture, and then punched her in the face and neck. The following day he sent a text to his brother saying he was going to “take [the victim] out” and then contacted the victim saying he was going to kill his brother too.
[35] Mr Swinburne’s offending has a number of similarities. It too occurred over a two-day period, consisted of physical abuse and threats to kill, and damage to property. However, I regard Mr Swinburne’s offending as more serious. The first assault in Zimmerman occurred when the victim got in between Mr Zimmerman and another male who were arguing. The second assault occurred when the two had been at a party together. In comparison, Mr Swinburne sought his victim out at a residential address and refused to leave when asked. Further, his assaults were more prolonged, consisted of more blows and caused the victim to momentarily black out. The threats to kill Mr Swinburne made to the victim were made directly to the victim during the assaults,
18 Zimmerman v Police, above n 9, at [7], citing Police v Zimmerman [2021] NZDC 7275.
19 Zimmerman v Police, above n 9, at [18].
20 At [18] and [20].
unlike in Zimmerman where the threats were made the day following the second assault and via text to a third party.
[36] In Goodman v R, the victim had returned home following an argument to collect her property when there was an argument with the appellant.21 The appellant grabbed her around the neck and threw her across the room (assault with intent to injure charge), then pushed her over numerous times when she tried to get up before he head-butted her and pushed her outside (male assaults female charge). At sentencing, a starting point for the first assault of 24 months’ imprisonment was adopted, with a four-month uplift, having regard to totality, for the second. On appeal, the Court observed that, “generally sentences of between two to three years’ imprisonment for domestic violence offending are not uncommon”, and the end sentence of two years four months’ imprisonment was not considered to be manifestly excessive.22
[37] Having regard to the totality principle, I consider a starting point of around two years 10 months’ (34 months) imprisonment to reflect both sets of charges to be appropriate.
[38] As for personal aggravating factors, Mr Swinburne has previous convictions for male assaults female, wilful damage, speaking threateningly, and assaulting and resisting police. Those offences were committed between 2013-2016. Mr Brownlie submits those convictions justify an uplift to the starting point. Those convictions are not recent but do provide some insight into Mr Swinburne’s character. That Mr Swinburne assaulted the victim in breach of a PSO further aggravates his offending. It was open to the Judge to impose a modest uplift of five to 10 per cent to reflect those factors.
[39] As recognised by the Judge, Mr Swinburne was entitled to a 25 per cent guilty plea discount. I accept a deduction was also available to reflect the personal background factors outlined in the s 27 report. That was the position reached by the Judge, but any deduction allowed was not quantified.
21 Goodman v R [2016] NZCA 64.
22 At [12] and [25].
[40] The s 27 report canvasses Mr Swinburne’s background. It records he was subject to violence by his step-father and witnessed his mother being subject to violence. This was confirmed by his mother. He moved schools and between New Zealand and Australia multiple times as a child. Mr Swinburne was expelled from two different high schools and left school without any formal qualifications. Following his first expulsion at age 13, he began stealing cars and was placed eventually in juvenile custody at Christchurch Te Puna Wai Residential Home. Mr Swinburne also self-reported that he had used cannabis since he was 13 to self-medicate his moods. While he was in prison between the age of 17 and 22, he was diagnosed with ADHD and borderline personality disorder. His mother stated in her interview for the report she had tried to have him diagnosed at an early age but was told there was nothing wrong. Mr Swinburne stated he received no support for follow up and he became addicted to methamphetamine when he was 23 years old. He has now been prescribed medication for his ADHD which he says has helped him.
[41] The Supreme Court held “operative or proximate” causes of offending are likely to be “a potent factor”.23 I agree with the Judge that there is a connection between Mr Swinburne’s background and his offending. That he was exposed to violence in the home as a child, both against himself directly and witnessed against his mother, is relevant to the current violent offending he has committed against a person with whom he previously shared an intimate family relationship. His undiagnosed, and until now, untreated, ADHD does assist in explaining his impulsive behaviour and lack of ability to control emotions. I consider a deduction of 10 per cent to reflect Mr Swinburne’s background is appropriate.
[42] Mr Owen submits a discrete deduction to recognise the appellant’s willingness to participate in restorative justice is warranted. Mr Brownlie disagrees, with reliance on indications within the PAC report that Mr Swinburne does not take full accountability of his offending.
[43] Mr Swinburne agreed to participate in a restorative justice conference. A conference was scheduled. The victim arrived substantially late for the conference,
23 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [108].
which was cancelled and could not be reconvened prior to Mr Swinburne’s sentencing. No steps have been taken to reconvene a conference. In Moses v R, the Court of Appeal observed that remorse is a personal mitigating factor that may justify a discount over and above any guilty plea discount.24 It is appropriate for the Court to look for tangible evidence of remorse.
[44] I accept that engagement in the restorative justice process might be worthy of consideration. That the conference did not go ahead was not the fault of Mr Swinburne. On the one hand, his willingness to attend should be recognised. But on the other, there is the comment in the PAC report that he accepts the summary of facts “in principle”, and this lack of insight is reflected in other attitudes including that his drug use did not affect his ability to function. A remorse deduction was sought in the District Court however no express finding was made. Inferentially, the Judge resolved that no discrete deduction was appropriate. This issue was finely balanced. In my view genuine remorse would have led Mr Swinburne to take steps to pursue the restorative justice conference. That he did not do so raises concern his motivation to participate was solely to secure a deduction in his sentence.
[45] From a starting point in the range of 34 months I consider Mr Swinburne was eligible to deductions of 35 per cent. That leads to an end sentence of 22 months’ imprisonment if no uplift is applied for personal aggravating factors and no credit allowed for remorse. The sentence imposed was one of 25 months imprisonment. The critical question is whether that sentence is manifestly excessive with focus on whether it is within range, not the process by which that sentence was reached.
[46] In my view the sentence of 25 months imprisonment was within range. I am not persuaded it was manifestly excessive.
24 Moses v R, above n 8, at [24].
Result
[47]The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Invercargill
Counsel:
K A Owen, Barrister, Invercargill
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