T v Police HC Gisborne CRI-2011-416-000015
[2011] NZHC 1932
•9 June 2011
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI-2011-416-000015
BETWEEN T Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 9 June 2011
Counsel: N Witters for Appellant
C R Walker for Respondent
Judgment: 9 June 2011
(ORAL) JUDGMENT OF POTTER J
on sentence appeal
Solicitors: Crown Solicitor, Gisborne
Copy to: N Witters, Gisborne
T V NEW ZEALAND POLICE HC GIS CRI-2011-416-000015 9 June 2011
[1] T appeals against a sentence of twenty months imprisonment imposed by Judge Connell in the District Court at Gisborne on 11 March 2011. The grounds of appeal are that the sentence is manifestly excessive and that the Judge failed to consider the totality of the offending as required by s 85 of the Sentencing Act 2002.
[2] On 11 March 2011 the appellant was sentenced on a number of charges following guilty pleas:
a) Wilful damage;
b) Common assault;
c) Threatening to kill;
d) Male assaults female;
e) Four charges of contravening a protection order;
f) Two charges of failing to answer bail;
g) Breach of community work.
[3] Judge Connell imposed sentences as follows:
a) On the charge of wilful damage which related to the complainant’s car he convicted and discharged the appellant on the basis that he had paid for the damage.
b)On the charge of common assault he imposed a sentence of six weeks imprisonment.
c) On the threatening to kill charge (which carries a maximum penalty of seven years imprisonment) he took a starting point of fifteen months
imprisonment, allowed a discount of one third for the appellant’s
guilty plea and imposed a sentence of ten months imprisonment.
d)On a charge of breach of protection order he imposed a concurrent sentence of three months imprisonment.
e) On the charge of male assaults female in relation to an assault he described as “relatively serious”, he took a starting point of fifteen months imprisonment and imposed a sentence of ten months imprisonment after allowing a discount for the guilty plea. He imposed that sentence cumulatively on the sentence of ten months imprisonment on the threatening to kill charge.
f) On the further breaches of protection order arising out of events on 22
January 2010, he imposed concurrent sentences of four months imprisonment.
g) On the charges of failing to answer bail (when the appellant failed to turn up at Court), he convicted and discharged the appellant with no further penalty.
h)He noted that the appellant had pleaded to the breach of community work in June 2010. He cancelled the remaining hours of the sentence on application by the Department of Corrections and sentenced the appellant to two weeks imprisonment to be served concurrently.
[4] The Judge imposed special conditions in addition to the standard conditions that would apply on release, as set out at [12] of the Judge’s sentencing notes.
[5] The charges arose from a number of incidents which occurred over a period of approximately nine months arising principally from domestic issues with the appellant’s former partner, M. Only the two cumulative sentences of ten months are the subject of the appeal but it will be abundantly clear that the Judge was required to sentence the appellant for a raft of offending arising from repetitive criminal
conduct by the appellant over a period of time, the latter offending being while the appellant was on bail following the earlier offending.
Factual background
[6] On 19 April 2010, following an argument with M the appellant in a fit of temper caused considerable damage to her car.
[7] On 28 September after M had obtained a protection order against the appellant on 24 June 2010, he again went to her address. After another argument, he spat at her and threatened to slit her throat, at the same time advancing towards the table on which there were large knives.
[8] At about 7 a.m. on 22 January 2011 he again entered M’s home in breach of the protection order and when she told him to leave he picked her up and threw her on the floor. She suffered soreness to her back and left shoulder. Then at about
10.30 a.m. he returned. She was obliged to flee to the protection of her
grandmother’s home next door
Probation report
[9] The probation report states that the appellant minimised his offending in relation to the male assaults female charge and showed no remorse and little insight. He was assessed as having low motivation to change and a high risk of reoffending, although I note that Judge Connell was prepared to accept that the appellant wanted help and wanted to stay in the community, on the basis of a letter the appellant addressed to the Court.
Previous convictions
[10] T has twenty previous convictions. Counsel for the appellant submitted that the nine year gap since previous relevant convictions in 2002 shows a conscious effort by the appellant to refrain from violent offending and that the recent convictions result from the inability of the appellant to deal with the failed
relationship with his former partner. I note that the sentencing Judge did not treat the previous convictions as an aggravating factor.
Authorities
[11] Counsel for the appellant placed considerable reliance on the cases of Mann v Police[1] and Martin v Police.[2] In Mann, M had entered guilty pleas to assault with a weapon, threatening to kill, male assaults female and breach of protection order. Assault with a weapon was taken as the lead charge. The Court took into account lack of previous convictions for violent offending and the intellectual disability and psychiatric condition of the offender. Nine months imprisonment was imposed on the charge of assault with a weapon and a concurrent sentence of three months imprisonment was imposed on the threatening to kill charge, where M rubbed a
butcher’s knife up and down the victim’s neck and threatened to kill her. There were no injuries to the victim. A cumulative sentence of three months was imposed on the male assaults female charge.
[1] Mann v Police HC Invercargill CRI-2005-425-14, 19 August 2005.
[2] Martin v Police HC Rotorua CRI-2007-470-24, 11 July 2007.
[12] In Martin there was a struggle in a domestic situation which resulted in minor bruising to the complainant. A sentence of nine months imprisonment was substituted on appeal with a sentence of six months imprisonment from a starting point of nine months imprisonment.
[13] Because of the wide variety of circumstances in this type of offending there is no tariff and previous sentencing decisions provide limited assistance. However, of relevance because of factual similarities is the case of O’Connor v Police.[3] Guilty pleas were entered to three charges of breaching a protection order, threatening to kill, male assaults female and two charges of intentional damage to property. O’Connor went to the victim’s home in breach of a protection order. On being told to leave he kicked in a door and pursued the victim around the house stating “I hate you, I’m going to kill you bitch” and telling her he would hang her and kill himself.
He pushed her on to a couch, pinning her down and smothering her.
[3] O’Connor v Police HC Wellington CRI-2008-485-13, 17 April 2008.
[14] From a starting point of fifteen to eighteen months on the charge of threatening to kill which was taken as the lead offence, a sentence of one years imprisonment was imposed. Six months imprisonment was imposed on the charge of male assaults female and one year was imposed for the breaches of protection order, each of those sentences to be served cumulatively. The end sentence was thus two years six months imprisonment. O’Connor was convicted and discharged on the intentional damage charge.
[15] O’Connor’s previous convictions, offending upon release from prison and poor risk projections appear to have weighed heavily with the sentencing Judge. On appeal the sentence was considered stern but not manifestly excessive even considering application of the totality principle.
Submissions
[16] Mr Witters for the appellant suggested a starting point of six months imprisonment reduced to four months imprisonment for each of the threatening to kill and male assaults female charges, with a cumulative end sentence of eight months imprisonment.
[17] Mr Walker for the Crown observed that the Judge effectively took a starting point of two years six months for all the offences (although this was not how the Judge expressed it) from which a one-third discount was given for the guilty pleas. He submitted that when all the offences are considered together, with the aggravating features of offending while on bail, previous convictions (not a factor the Judge identified), and the poor pre-sentence report, the starting point and end sentence were within the available range.
Evaluation
[18] The Judge was quite correct to impose cumulative sentences and this aspect of the sentencing is not challenged by the appellant. It is relevant to note that in O’Connor, although the offending occurred in a single incident, cumulative sentences were imposed on the charges of threatening to kill and male assaults
female. In that case the threat to kill was not accompanied by use of a weapon, although the present ability to carry out the threat was considered a relevant factor, as I consider it is in this case, where the appellant advanced towards the table where there were knives set out.
[19] Section 85(2) of the Sentencing Act provides that cumulative sentences should not result in a disproportionate total period of imprisonment. The sentencing Judge should “stand back and look in a broad way at the totality of the criminal behaviour”.[4]
[4] R v Bradley [1979] 2 NZLR 262 (CA) at 263.
[20] Here the sentencing Judge did not appear to undertake the final step of standing back and viewing the gravity of the offences as a whole.
[21] There can be no doubt that viewed overall the appellant’s offending is serious and concerning. I consider no issue can be taken with the starting point and end sentence imposed on the charge of threatening to kill, namely ten months. The starting point and sentence were within the available range. However, I consider the starting point of fifteen months and the end sentence of ten months imprisonment on the male assaults female charge to be excessive. The Judge described the assault as “relatively serious”, but as in Martin, it was a struggle resulting in minor bruising to the victim.
[22] I consider a starting point of nine months as adopted in Martin and O’Connor on the male assaults female charge to be appropriate, reduced to six months imprisonment for the guilty plea.
[23] When this sentence of six months imprisonment is made cumulative on the sentence of ten months imprisonment on the threatening to kill charge, the end sentence is sixteen months imprisonment.
[24] Standing back and having regard to the totality of the appellant’s criminal offending, I consider an end sentence of sixteen months imprisonment adequately reflects the seriousness of this offending and is not disproportionate to the totality of
the offending. As Gendall J observed in O’Connor,[5] when sentencing for multiple offending it is not appropriate to look at sentences for particular offences in isolation, so as to “pick apart” individual sentences. An assessment of the overall culpability is required.
[5] At [28].
[25] The appeal is allowed. The sentence on the charge of male assaults female of ten months imprisonment is quashed. It is substituted with a sentence of six months imprisonment which is to be cumulative on the sentence of ten months imprisonment imposed on the threatening to kill charge. The resultant end sentence is accordingly sixteen months imprisonment.
[26] All other sentences stand. The release conditions imposed by the sentencing
Judge, stand.
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