Thomas v R

[2020] NZHC 2138

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2020-443-15

[2020] NZHC 2138

BETWEEN

NAVEEN THOMAS

Appellant

AND

THE QUEEN

Respondent

Hearing:	18 August 2020
Counsel:	K R Pascoe for appellant A D Colley for respondent
Judgment:	21 August 2020

RESERVED JUDGMENT OF DOBSON J

[1]    The appellant (Mr Thomas) was sentenced by Judge Greig in the District Court at New Plymouth on 29 June 2020 to two years and three months’ imprisonment.1 The sentencing related to six convictions for domestic violence offending: one of common assault, three of male assaults female, one of assault with intent to injure, and one of attempting to pervert the course of justice. The last was laid as a representative charge.

[2]    Mr Thomas has appealed, contending that the sentence imposed was manifestly excessive. In particular, the alleged errors are that the starting point in relation to the domestic assaults and the cumulative sentence on perverting the course of justice were too high, and that the sentencing Judge, having determined that the domestic violence was the lead offending, then imposed a greater sentence on the charge of attempting to pervert the course of justice.

1      R v Thomas [2020] NZDC 12149.

THOMAS v R [2020] NZHC 2138 [21 August 2020]

[3]    In addition, Mr Thomas contends the Judge erred in failing to have proper regard to s 16 of the Sentencing Act 2002 (the Act), confused it with s 8(h) of the Act, and failed to take into account an offer of reparation for which regard should have been had under s 10 of the Act. Finally, it is submitted that the Judge failed to have proper regard to personal circumstances that resulted in an inadequate discount for the mitigating factors.

[4]    The Crown opposes the appeal on the basis that the final sentence was well within range, and that none of the component steps in the sentencing involved an error which impacted on the reasonableness of the final outcome.

The facts

[5]    The victim was Mr Thomas’s domestic partner. They had known each other for some 20 years in India, prior to separately moving to New Zealand during 2017. On the evening of 31 December 2018, Mr Thomas assaulted the victim after he became jealous of her conduct with other male friends in a bar. This led to an argument where he snatched her phone and hit her on her shoulder. That assault caused her to cry, which further angered Mr Thomas.

[6]    Then on 12 May 2019, they argued at their home and Mr Thomas hit the victim on the arm with a closed fist. On that occasion the victim went to her car and locked the doors to protect herself, with Mr Thomas then apologising and asserting that he would never hurt her again.

[7]    During a holiday in Taupō in late May 2019, Mr Thomas became angered by the content of a telephone conversation with a third party, which led to an argument between him and the victim. The victim packed her bags to leave. Mr Thomas punched her in the back, which caused her to fall over onto the bed. He then punched her again when she stood up, this time in the chest. He warned that if she did not stop crying, he would hit her again.

[8]    In  early  September  2019,  an  altercation  over  domestic  duties  caused  Mr Thomas to become angry. He approached the victim with a sharp kitchen knife and held it to her throat. She apologised out of fear and he knocked food she was

preparing out of her hands. Mr Thomas left to take a shower and on his return was angry that she had started to eat without him and shoved her to the ground.

[9]    The couple had a further argument a few days later, during which Mr Thomas grabbed her by the neck, squeezing hard and digging his fingernails in until they punctured the victim’s skin. He continued to squeeze and dragged his hand forward causing the victim’s neck to bleed. He then told her to take the next day off work to hide the injuries this assault had caused.

[10]   That course of conduct led to  the  various  charges  of  domestic violence. Mr Thomas was charged with the offending on 9 November 2019. He denied assaulting the victim and claimed he had acted only in self-defence.

[11]   Mr Thomas was bailed on the domestic violence charges on conditions that prohibited any contact with the victim. However, there were extensive contacts over a period of months, including messages asking and pleading with her to retract her statements. He threatened to kill himself if she did not retract, and also that he would return to India, accompanied with threats against members of her family. One communication included:

Safety of your mom and son in my hand … protect me, otherwise I will book a ticket for them in heaven.

[12]   At one point during this pressure, the victim did go to the Police and ask to withdraw her statement. On 17 March 2020, Mr Thomas was charged with attempting to pervert the course of justice. His response was to claim that the victim was contacting him and he denied contacting her.

[13]   The victim impact statement referred to emotional blackmail, coercion and control, and the victim’s on-going fear of Mr Thomas. She stated that she had been shunned by large parts of the Indian community as a result of making complaints against him and was satisfied that he would fail to abide by any non-contact order.

The sentencing

[14]   The Judge responded to a request for a sentencing indication on 29 April 2020. Mr Thomas did not accept that but did plead guilty on 7 May 2020 following discussions to resolve the charges. On sentencing, the Judge stated that his sentencing remarks needed to be read alongside the remarks he had made in the sentencing indication. The Judge began by allocating separate sentences to each of the charges for domestic violence, on a cumulative basis, totalling some 33 months. After applying a totality consideration, this was reduced to 20 months’ imprisonment.

[15]   Despite treating the most serious of the domestic violence offences as the lead offence, the Judge then identified a separate cumulative sentence of two years’ imprisonment for perverting the course of justice. That made a total of 44 months, from which the Judge deducted 25 per cent (11 months) for guilty pleas and a further discount for previous good character (“even though I probably should not”).2 It was combined with a discount of six months for the very difficult circumstances the Judge perceived Mr Thomas would encounter in prison, and for his offer of restorative justice, leading to an end sentence of 27 months’ imprisonment.

[16]   Mr Thomas had offered to make a payment of $10,000 for emotional harm reparation but the Judge declined to order such a payment.

Analysis on appeal

[17]   This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and therefore must only be allowed if the Court is satisfied that there has been (for any reason) an intrinsic error in the sentence imposed and that a different sentence should be imposed.3 The sentence must be either manifestly excessive or inappropriate if the appellate court is to interfere with the discretion.4 The focus is on the final sentence rather than the exact

2      R v Thomas, above n 1, at [10].

3      Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.

4      Affleck v Police [2017] NZHC 3220 at [9].

process by which it was reached and whether the sentence was in the available range.5 As articulated in R v Peters:6

[13] As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component. …

[18]   Ms Pascoe, counsel for Mr Thomas, accepted that the ultimate issue on appeal is whether the end sentence is manifestly excessive. However, her conventional approach was to attack the components of the reasoning which she submitted were vulnerable to criticism.

[19]   Ms Pascoe submitted that caution was required in assuming that aspects of the sentencing analysis (dealt with relatively summarily in the sentencing decision) could be treated as being rationalised by the fuller considerations in the Judge’s sentencing indication given two months before sentencing. Given the Judge’s specific cross- reference to the analysis in the sentencing indication, I do not see any impediment to considering the rationale for components of the sentencing by reference to the explanations in the sentencing indication.

[20]   The first challenge was that the starting point for the domestic violence offending was too high. The combination of circumstances in domestic violence sentencings vary so widely that there is limited utility in attempting to measure the appropriateness of a sentence in one case against appellate reconsideration in others. I agree with the caution to that effect expressed by Mander J in Parsons v Police.7

[21]   Ms Pascoe acknowledged that point, but nonetheless advanced oral argument that the starting point adopted for the domestic violence convictions in this case was excessive by comparing it with those considered in a number of appellate decisions cited for the respondent. In Goodman v R, the Court of Appeal upheld a starting point

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

6      R v Peters CA12/03, 14 May 2003.

7      Parsons v Police [2018] NZHC 2214 at [16].

of 28 months for domestic violence, which Ms Pascoe characterised as so much more serious that a greater difference than eight months was required in the present case.8 In Goodman, there was a single, sustained episode of domestic violence involving choking, punching and kicking the victim. It was certainly violence at a measurably more serious level than occurred in the present case, but an attempt to rank their relative seriousness demonstrates why the Court is wary of doing so.

[22]   In the present case, the victim was subjected to a recurring pattern of less serious but nonetheless very troubling violence from a partner who can be seen as resorting to violence in an attempt to control the victim. I see no basis for concern that a starting point of eight months less than was upheld in Goodman is out of line when the full circumstances are compared.

[23]   Similarly, in M v Police, the offending involved a single incident of serious domestic violence including repeated punching to the victim’s head, pulling her off her feet by her hair, throwing her onto hard surfaces and ultimately threatening the victim with a kitchen knife whilst the defendant held her around the back of her neck.9 On appeal to this Court, a starting point of 20 months’ imprisonment had been upheld.

[24]   The very different circumstances of a course of conduct that never rose to such a serious level of violence but created misery for the victim in a sequence of events over a period of months ultimately entails a value judgement as to the appropriate starting point. I am not persuaded that the offending in the present circumstances warranted a lower starting point than that upheld in M.

[25]   The Judge had accepted the accumulated starting points proposed by the prosecution which would have totalled 33 months. On a totality basis he indicated that would be reduced to 20 months’ imprisonment, which was the component of his end sentence for the domestic violence. I am not persuaded the Judge erred in doing so.

8      Goodman v R [2016] NZCA 64.

9      M v Police [2017] NZHC 1427.

Wrong lead offence?

[26]   The Judge had rejected a submission from Ms Pascoe that the charge of attempting to pervert the course of justice should be treated as the lead offence. On appeal, she submits that his failure to do so led to an error in calculating the overall sentence. Ms Pascoe submits that her position is vindicated by the end result where the component of the total sentence attributable to the attempt to pervert the course of justice is four months longer than the end point for all of the domestic violence offending.

[27]   A sentencing judge’s nomination of which among a number of offences is to be treated as the lead offence in the sentencing analysis involves an element of judgement reflecting the characteristics of the range of offences in issue. Whilst the general practice is for the offending likely to attract the most serious sentence to be nominated as the lead offence, no error arises necessarily by proceeding inconsistently with that. As in all sentencings, it is the appropriateness of the end sentence that matters. Here, the attempts to pervert the course of justice were derivative of the domestic violence offending, obviously occurred later in time and were most likely to attract a cumulative sentence in any event. I am not persuaded that the Judge erred by failing to adopt counsel’s submission to treat the attempt to pervert the course of justice as the lead offence by virtue of that offence resulting in the longer of the two components of the sentence.

Was the starting point on the attempting to pervert the course of justice charge too high?

[28]   Ms Pascoe submitted that when considering a cumulative sentence for this offending, the whole range of sentencing options was open to the Judge and that a starting point of 24 months’ imprisonment ranked it far more seriously than was justified on the facts. She characterised the offending as unsophisticated and without threats being made to the victim.

[29]   That  characterisation  is  challenged  by  the  Crown  submissions,   where Ms Colley emphasised that there were over 130 WhatsApp messages, as well as contacts by video calls. The repeated attempts occurred over a four month period and

met with a measure of success to the extent that the victim did at one point contact the Police about withdrawing the complaint. Her attitude was described as “oscillating between wanting him punished and regretting what he was facing”.10

[30]   The Crown invited analogy with two other cases where charges of domestic violence had been followed by attempts by a defendant to dissuade the complainant from proceeding with the complaint. In R v Sharma, the defendant had made some 93 phone calls or attempted calls to urge a victim to drop her complaint of domestic violence and say that she had made everything up.11 The High Court upheld a starting point of 30 months’ imprisonment.12

[31]   In Mita v Police, the defendant had telephoned the victim on 52 occasions whilst in custody and in the course of discussing the court proceedings attempted to pressure the victim into providing him with assistance and getting the victim to file an affidavit in which she attempted to retract her statement.13 In that case, an uplift of  20 months’ imprisonment on top of sentences for the original domestic violence offending was upheld. The High Court suggested that a discrete starting point of two to three years’ imprisonment would have been available, with the 18 month uplift being an appropriate adjustment for totality.14

[32]    I do not accept Ms Pascoe’s ranking of the attempts to pervert the course of justice as being as innocuous as she contended. Such conduct by defendants in cases of alleged domestic violence occurs regrettably frequently and may well be encouraged because of the extent to which it appears to be successful. It is offending for which a firm signal of denunciation and deterrence is required.

[33]   By comparison with the circumstances of the cases submitted on behalf of the Crown, I am satisfied that the starting point of a cumulative sentence of two years’ imprisonment was well within the range available in this case.

10     As also noted by the Judge in his sentencing indication.

11     R v Sharma [2017] NZHC 2925.

12     At [26]–[27].

13     Mita v Police [2017] NZHC 2573.

14 At [31].

Confusion over considerations required by ss 16 and 8(h) of the Act

[34]   Section 16 of the Act requires sentencing judges to have regard to the desirability of keeping offenders in the community, and requires the Court not to impose a sentence of imprisonment unless satisfied that the purposes in s 7 of the Act could not be achieved by a sentence other than imprisonment.

[35]   In contrast, s 8(h) requires a sentencing judge to consider the particular circumstances of an offender and to take into account if a sentence that is otherwise appropriate would be disproportionately severe.

[36]   Ms Pascoe submitted that the Judge’s analysis erred because he confused these two considerations. The submission relied on an observation in the Judge’s sentencing indication in which the Judge stated:

[16]     Ms Pascoe makes the persuasive point that there are s 16 factors and  I certainly have those in mind. A sentence of imprisonment is going to be hard for Mr Thomas to endure. I am looking at him on a screen, but he looks a fairly slight man and of course he will be in a significant ethnic minority in prison, which is where he is at the moment.

[37]   Arguably, that observation meant that the Judge considered the s 8(h) factor when addressing s 16.

[38]   The Crown rejected any suggestion that the Judge had misapplied any relevant mandatory considerations. The Judge explicitly acknowledged that he must impose the least restrictive outcome.15 It is clear that he had regard to s 8(h) because he granted a discount for the additional difficulties Mr Thomas was likely to have in serving a sentence of imprisonment. The Judge’s reasoning eliminated the adequacy of a sentence less serious than imprisonment.

[39]   I agree with the Crown submissions on this criticism. Viewed overall, and in particular in light of the relevant passages in the sentencing indication, including that relied on by Ms Pascoe, there is no scope for concern that the Judge misunderstood

15     R v Thomas, above n 1, at [8].

the considerations required under ss 8(h) and 16 of the Act, or that he was confused in a way that led to his misapplying them.

Offer of reparation

[40]   Mr Thomas had written a letter to the victim claiming remorse, and had instructed counsel to advise the Court that he had $10,000 available for an emotional harm reparation payment. Section 10 of the Act requires the Court to take into account any offer of amends on sentencing, whether it was genuine, whether it was capable of fulfilment and whether the victim had accepted any such payment as mitigating the wrong.

[41]   Mr Thomas had also indicated his willingness to attend a restorative justice conference, but those administering such initiatives considered it not appropriate in the case of this victim. As that step did not occur, the victim was not advised of the reparation offer and so her views about it were not before the Court.

[42]   The Judge declined to make an order for an emotional harm reparation payment, treating it in this case as raising the spectre of Mr Thomas buying his way out of a sentence. The Judge invited Mr Thomas to make the payment in any event if he was sincere, and said that the Parole Board might ask him if he made it and that it would indicate genuine remorse if he had.

[43]   Ms Pascoe submitted that this aspect of the Judge’s reasoning was in error and the offer ought to have been acknowledged, with the commitment to it being factored in as a material mitigating circumstance.

[44]   In responding on this aspect of the appeal, Ms Colley cited the Court of Appeal’s observations in R v Johnson to the effect that an offer to pay reparation is not necessarily indicative of remorse, and “it may simply reflect a strong desire not to go to prison and a willingness to pay any money that will help to achieve that goal”.16 Ms Colley submitted that the Judge was entitled to be sceptical about the genuineness of Mr Thomas’s offer, given the extent to which he had attempted to minimise his

16     R v Johnson [2010] NZCA 168 at [28].

offending and the repeated attempts he had made to encourage the victim to retract her statement.

[45]   The Judge was entitled to assess the genuineness of the offer in the context of all the circumstances of the offending and Mr Thomas’s guilty pleas. The Judge’s decision not to take the offer into account was clearly open to him and I am not persuaded his approach on this aspect of the potential mitigating circumstances was in error. In any event, given the other components of the sentencing analysis, it seems unlikely that any discrete discount given for the offer of amends would be sufficient to render the outcome achieved without any such discount to be manifestly excessive.

Inadequate discount for mitigating factors

[46]   The last of Ms Pascoe’s ground of challenge was that the discount of six months given for Mr Thomas’s personal circumstances was insufficient. That discount also took into account an acknowledgement of the very difficult circumstances  that  would  confront  Mr Thomas  in  serving  a  prison   sentence. Ms Pascoe submitted that given his previous good character, when added to all other aspects of the arguments on appeal that lessened the seriousness of the offending, arguably a greater discount for personal circumstances was warranted.

[47]   The Crown submitted that a six month discount was appropriate and certainly within range.

[48]   Mr Thomas’s initial reaction to the charges, his conduct in attempting to minimise his offending and the pressure applied to the victim to withdraw the complaint are matters that weigh against the extent of credit that could be given for his previous lack of convictions. In the overall circumstances of this sentencing, I see no error in a discount of six months for the combined mitigating circumstances of his previous good character and the greater difficulty he would likely incur in serving a sentence of imprisonment.

Outcome

[49]   For all the above reasons, I am not satisfied that the Judge erred. The appeal is accordingly dismissed.

Dobson J

Solicitors:

Nicholsons, New Plymouth for appellant Crown Law, Wellington for respondent