The Queen v Nash

[2007] NZCA 520

IN THE COURT OF APPEAL OF NEW ZEALAND

CA459/07
[2007] NZCA 520

THE QUEEN

v

JESSE DANIEL NASH

Hearing:8 November 2007

Court:Wilson, Ronald Young and Venning JJ

Counsel:P Butler for Appellant

N P Chisnall for Crown

Judgment:20 November 2007 at 12pm

JUDGMENT OF THE COURT

APPEAL AGAINST SENTENCE DISMISSED.

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]       After their relationship ended, Mr Nash embarked on an aggressive and violent campaign directed at his previous partner.  As a result, he pleaded guilty after committal for trial to three charges of wilful damage, one of burglary and a representative charge of threatening to kill.  He was sentenced by Judge Crosbie to three years imprisonment in total for this offending.  Later, in May 2007, he escaped from police custody and was given a further six months imprisonment cumulative on the three years earlier imposed.  He says the starting point of the sentence for the offending involving his ex partner was too high at four to five years, and insufficient discount was given for his guilty pleas, remorse and his commitment to rehabilitate his drug dependency.  As a result the appellant says the final sentence of three years imprisonment for this offending was manifestly excessive.

Facts

[2]       The appellant and complainant had been in a domestic relationship until September 2006.  As is so often the case the appellant’s violent conduct had its genesis in his refusal to accept the relationship with the complainant was over.  In early October 2006 the appellant sent the complainant a number of threatening texts.  The appellant was apparently angry at her response and arrived at her house, kicked the back door open and abused the complainant, threatening to rape her.  When he left the house he deliberately drove his car into the complainant’s vehicle, ramming it through the wall at the end of her carport and causing $2,300 worth of damage (two intentional damage charges). 

[3]       Some weeks later, the complainant was away from her home.  The appellant kicked open her back door and removed some items from her house (a burglary and intentional damage charge).

[4]       From shortly afterwards until his arrest in early 2007, the appellant sent a number of text messages to the complainant and friends of the complainant.  These texts contained explicit threats to kill the complainant on a number of occasions.  They included:

I will enjoy drowning you in the turtle tank.

I be down to cut Anita’s throat and throw her off the wharf soon.

I am going to shoot her.

[5]       The complainant took the threats seriously and moved from her home address until the appellant’s arrest. 

Disputed facts

[6]       In his submissions, counsel for the appellant said that the Judge had made an error of fact in sentencing the appellant when he said the appellant had threatened to rape the complainant on his first unlawful entry into the complainant’s house.  Counsel acknowledged the summary of facts provided to the Judge by the Crown at sentencing said the appellant had threatened to rape the complainant.  No objection at the time was taken to the summary of facts, nor did counsel for the appellant raise any dispute necessitating a disputed facts hearing before sentencing.

[7]       Counsel pointed out that the depositions statement of the complainant, as relevant, said:

Q        What did he say to you after he tried to fix the door?

AHe went a bit weird again and said, I’m going to have sex with you one last time.

QWhat were you thinking at the time?

AI was thinking oh no, I’m going to get raped here, I’ve got to get myself out of here somehow.

[8]       We accept the report of the words of the appellant did not expressly mention rape.  However, given the context, it was unsurprising the complainant believed she was going to be raped.  The appellant in his submissions did not claim the difference between the two versions was material to sentencing.  We agree.

Submissions and discussion

[9]       The appellant says the Judge failed to identify an actual starting point for the offending and the range he did identify was too high.  As to a starting point the Judge said:

[27]     In my view, an appropriate starting point based on a totality basis and using the charge of threatening to kill as the lead offence is between four and five years imprisonment, if not slightly higher given the previous offending.

[10]     It may have been better for the Judge to have identified a particular starting point for the offending and separately identify any uplift he considered was justified by the appellant’s past offending.  However, his remarks make it clear his view was that the offending and the appellant’s past justified, before mitigation, a sentence at the higher end of the range of four to five years.  We see no error in this approach.

[11]     In support of his contention that the starting point was excessive the appellant says:

(a)The Judge over-emphasised the two text messages to the complainant.

(b)The Judge failed to appreciate three of the text messages were sent to friends of the complainant.

(c)The Judge failed to appreciate the burglary and intentional damage charges occurred shortly after the break-up of the relationship when the appellant still had personal belongings at the home.

[12]     As to the text messages, the Judge said:

[8]       The text messages included threats to kill her on different occasions and admissions to burning her bus.  The summary of facts sets out some six instances of threatening violent and depraved texts.  You sent messages of a similar nature admitting your offending and personally abusing her.  You sent those on 5 January.  You also admitted via a text message to associates that you had set the bus on fire and wanted to kill her.  She was scared and moved from her home and did not return until you were located by the police.  During the messaging and phone calls, as already alluded to, you admitted setting fire to the house bus, watching it burn, threatening others in the community and creating havoc.

. . .

[15]     I accept that there was threatened violence and I accept and find that this was threatened violence of the worst kind.  There is perhaps a tendency by some to view texting as less significant than other types of threats but it is no less significant.  It is now a common feature of the way people communicate with each other and the way in which you did it on repeated occasions simply brought home the reality in the mind of the victim.

[13]     These conclusions were well justified.  The text messages were persistent serious threats of a specific nature: to kill the complainant.  We do not consider the seriousness is reduced by the fact that some texts were sent to the complainant’s friends.  The complainant was sufficiently frightened by the texts to leave her home.  The texts must also be seen in the context that the appellant had forcibly broken into the complainant’s house and threatened her there.

[14]     As to the burglary and wilful damage charges, we do not consider the seriousness of the invasion of the complainant’s home was lessened by the appellant’s previous occupation of that home.  The relationship had ended more than a month before the first unlawful entry.

[15]     As to this the Judge said:

[17]     The extent of the damage is not inconsiderable given that this person obviously had limited means.  A further aggravating feature is that you unlawfully entered the dwelling, breaking down a door on more than one occasion.  I have referred already to the effect on the victim and I accept the Crown’s submission  that she is vulnerable.  I also accept clearly that there was premeditation involved in this offending.

The Judge was entitled to view the break-ins as seriously aggravated by the damage done by the appellant after entry.

[16]     The appellant has a long history of offending including convictions for burglary and assault.  A small uplift on the starting point for past offending could therefore have been justified.  The Judge’s starting point was therefore at or close to five years.

[17]     The Judge rightly viewed this as serious offending justifying a substantial prison term.  We accept though that the Judge’s starting point, for the offending and the appellant’s past, was high.  However, it is the end sentence which the appellant must convince us was manifestly excessive.

[18]     The appellant submits the Judge did not give sufficient credit to him for his guilty plea, his remorse, his long-term drug addition and his commitment to rehabilitate himself. 

[19]     We assume, given his remarks, the Judge adopted a starting point of five years imprisonment.  The appellant did not plead guilty until after the depositions hearing at which the complainant gave viva voce evidence.  Only a modest discount for the guilty plea need therefore have been given.  While the appellant is now remorseful, some of his remarks to the probation officer attempt to excuse or downplay his conduct.  His late guilty plea does not support great remorse. 

[20]     There seems little doubt that the appellant has a significant alcohol and drug abuse problem and it may be he is finally motivated to seek treatment.  As to this, the Judge said:

[13]     I must be very clear, however, and agree with the Crown’s submission that that addiction is not a mitigating feature.  It is a personal factor that I take into account but it is certainly not one that you are entitled to credit for.  You are entitled to credit, of course, to perhaps facing up to your problems and doing something about them.

[22]     With respect to the matter in mitigation that Mr Butler relies on, I accept the personal circumstances as I have already outlined them to be.  The submission, however, that the facts infer culpability at a lower level is not one that I readily accept.  While there is a drug dependency and a significant dependency, this offending occurred over quite a long period and involved offending that was different in kind and, as I have already said, premeditated.

[21]     The Judge was correct to refuse to accept the appellant’s addiction was a mitigating factor.  He acknowledged, however, that the appellant was entitled to credit for facing his addiction and being prepared to do something about it.  This credit is reflected in the Judge’s generous deduction for mitigation.  We do not consider the fact that the appellant may finally be motivated to seek treatment for his addiction is a basis for reducing an otherwise proper sentence.

[22]     Here, the Judge gave a very generous discount, for little more than a late guilty plea and some personal factors, reducing a starting point of five years imprisonment by 40% to reach his final sentence of three years for this offending.  The sentence of three years imprisonment for this offending, given its seriousness, could not be said to be manifestly excessive.

[23]     The appeal is therefore dismissed.

Solicitors:

Crown Law Office, Wellington