Thompson v Police

[2019] NZHC 1983

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-154

[2019] NZHC 1983

BETWEEN

CHARLIE THOMPSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

22 July 2019

Counsel:

N Soondram for Appellant

S T L Teppett for Respondent

Judgment:

14 August 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 14 August 2019 at 3:00 pm Registrar/Deputy Registrar

Solicitors:

Meredith Connell (Auckland) for Respondent

Counsel:
Nalini Soondram (Auckland) for Appellant

THOMPSON v POLICE [2019] NZHC 1983 [14 August 2019]

Introduction

[1]    Mr Thompson appeals his sentence of three years and nine months’ imprisonment imposed by Judge Ronayne.1 The sentence was the end point reached by the Judge in respect of violent offending by Mr Thompson against his former partner. The offending occurred over a period of eight months on four separate occasions.

[2]The grounds of the appeal are that:

(a)the Judge erred in law by imposing sentences cumulatively instead of concurrently; and

(b)the end sentence was manifestly excessive.

[3]    The first ground of appeal is misconceived. The maximum sentence for the most serious of the charges is three years’ imprisonment. To achieve an end sentence above three years’ imprisonment the Judge had no choice but to impose sentences cumulatively.

[4]    The second ground of appeal is the operative one. If the end sentence is manifestly excessive then that is an error which means I must allow the appeal and impose a different sentence.

Background

[5]The facts of Mr Thompson’s offending are as follows:

(a)15 December 2017 – male assaults female.2 During an argument at the Glen Innes train station Mr Thompson shoved, pushed, and yelled at the victim to walk faster. She became frightened and tried to grab a steel railing while Mr Thompson tried to pull her from it. She let go of the railing for fear her arms would break and he forcibly carried her

1      New Zealand Police v Thompson [2019] NZDC 3625.

2      Crimes Act 1961, s 194(b). Maximum sentence two years’ imprisonment.

down the footpath. When she managed to break free he grabbed her, and again pulled her off the railing. When she attempted to call the police, Mr Thompson struck the phone from her hand causing it to smash. The victim sustained minor scratches and red marks to her arms, which were sore.

Mr Thompson  was  granted  bail  in   respect   of   this   charge   on 26 December 2017, with a condition that he was not to associate with the victim. He pleaded guilty to the charge on 30 January 2018.

(b)8 January 2018 – assault with intent to injure.3 Mr Thompson went to the victim’s home in breach of the non-association bail condition. When she told him he could not stay an argument broke out. The victim attempted to leave the room, but Mr Thompson grabbed her and wrapped her in a bear hug. She called for help and Mr Thompson wrapped his hands around her neck and choked her. He also pushed her head back so it hit a wooden board on the couch and she became dazed. As the victim attempted to get away he grabbed her knee and pushed it into the wooden board on the couch and pushed her head into the floor. She wrestled free and left the room, and he yelled:

I might as well stab you so it’s worthwhile when the cops come, then kill them all and ram a knife through my neck when they come through the door.

The victim suffered scratches to her neck and bruising to her knee.

Mr Thompson was granted bail in respect of this charge on 16 February 2018. On 22 August 2018 he was found guilty on the charge in a judge alone trial.

(c)4 July 2018 – male assaults female and assault with intent to injure. While awaiting trial for the 8 January 2018 offending, Mr Thompson was at the victim’s home. They were drinking together. Her landlord

3      Section 193. Maximum sentence three years’ imprisonment.

was present. When the landlord left Mr Thompson began to swear at the victim while pushing and shoving her across the backyard. He slapped her twice in the face with the back of his hand before forcibly lifting her off the ground and throwing her face-first into a nearby bush. He then approached her and pulled her hair downward, attempting to rub her face in the ground. While pulling her hair he punched her twice in the face with a closed fist, then tipped his remaining drink on her and spat in her face. She attempted to escape but Mr Thompson chased and cornered her, punching her with a closed fist and sufficient force to hurl her into the air and cause her to lose consciousness. She managed to get to her feet, but Mr Thompson followed her, continuing to push, shove, and drag her along the ground while yelling abuse. The victim suffered a sore left side of her jaw, sore head and bruises on the neck. She also sustained cuts to the left shin and both elbows as well as grazes to the knuckles on her hands.

(d)3–4 August 2019 – assault with intent to injure and male assaults female. At approximately 5 pm on 3 August 2019 Mr Thompson and an acquaintance went in a vehicle to Otahuhu train station. The victim was there. She attempted to escape but was caught and forcibly pulled into the vehicle. Mr Thompson yelled abuse at her while the acquaintance drove them to Mr Thompson’s apartment. Mr Thompson told her to go to his room or he would hurt her. He drank with friends before eventually returning. He swore at the victim and forced her into an enclosed wardrobe where he punched and kicked her, causing her head to hit the concrete wall. He was in and out of the apartment throughout the night. The next morning, he saw the victim attempting to leave via the stairs. He slapped her in the face with the back of his hand, pulled her upstairs and hit her again. As a result of these assaults the victim sustained contusions to the head, eyes and thorax as well as multiple facial and chest bruises.

Mr Thompson was arrested on 5 August 2018. He pleaded guilty at a later date and was sentenced on 28 February 2019.

District Court decision

[6]    Judge Ronayne began by setting out the details of the offending in chronological order. He then summarised aggravating features of the offending:

[11] … Most of your offending was committed while you were on bail and not to associate with the victim. Also, your offending was in specific breach of a non-association clause in your bail. Also, your attacks were repetitive. Also, your attacks were to her head, including punches while she was down, including also a massive punch to her head which hurled her into the air. Also, your attack on her was deliberately humiliating in nature including pouring drink on her and spitting on her face. Also, you inflicted multiple injuries and inflicted a loss of consciousness on her. Also, she was vulnerable and defenceless from your cowardly attacks on her. Also, your attacks were sustained, chasing her at times, repeatedly returning on one occasion, as I have just outlined, to continue your attacks on her as, it seems to me, it suited you. Also, on at least one occasion, if not more, there was a considerable degree of confinement of her. You are fortunate not to be facing a kidnapping charge or charges also. Also, a good deal of your offending was highly premeditated. Also, you choked her. Parliament has created a new offence for that now and daily multiple men like you are charged with that sort of gutless overwhelming terrifying attack.

[7]    Judge Ronayne noted Mr Thompson’s previous convictions in Australia for the equivalent of contravening a protection order, resulting in a term of imprisonment.4 He noted also that the three pre-sentence reports recommended imprisonment and gave him an impression of Mr Thompson as victim-blaming, denying the offending and dangerous to women.5 The reports assessed Mr Thompson as having a high risk of re-offending. The Judge later took a similar view of the mental health report, which indicated a failure to take responsibility and endeavours to blame alcohol.6 That report assessed Mr Thompson as at a low to moderate risk of reoffending. The Judge preferred the pre-sentence reports’ assessment of risk.

[8]    Judge Ronayne emphasised the need to hold Mr Thompson accountable and promote in him a sense of responsibility.7 There was need also to protect the community, particularly women who might form a relationship with him, and to cater to the interests of the victim.

4      New Zealand Police v Thompson, above n 1, at [12].

5 At [13].

6 At [15].

7 At [13].

[9]    The Judge said he would not give Mr Thompson credit for participating in a Man Alive program, believing his participation had been insincere.

[10]Judge Ronayne identified starting points for the offences as follows:

(a)15 December 2017 – male assaults female (maximum of two years’ imprisonment): three months’ imprisonment.

(b)8 January 2018 – assault with intent to injure (maximum of three years’ imprisonment): one year’s imprisonment. Being a distinct occasion, this would be applied cumulatively.

(c)4 July 2018 – assault with intent to injure (maximum of three years’ imprisonment): two years’ imprisonment. Male assaults female (maximum of two years’ imprisonment): one year six months’ imprisonment. The two sentences would be applied concurrently with each other and cumulatively on the other sentences.

(d)3–4 August 2018 – assault with intent to injure (maximum of three years’ imprisonment): two years’ imprisonment. Male assaults female (maximum of two years’ imprisonment): six months’ imprisonment, added to the two-year starting point for the assault with intent to injure. This was to be applied cumulatively on the other sentences.

[11]   This produced an overall starting point of five years and nine months’ imprisonment. Judge Ronayne reduced this to four years and six months to reflect totality.8

[12]   Judge Ronayne increased the starting point by two months for Mr Thompson’s previous offending. He then gave a 20 per cent discount for guilty pleas on a global basis (despite Mr Thompson  defending one  charge),  bringing the  total down  by  11 months to three years and nine months’ imprisonment.

8 At [21].

[13]   I summarise the overall sentencing by reproducing a table appearing in the Crown’s submissions:

Offence date	Charge	Nature of offence	Maximum penalty	Starting point	Sentence imposed
15.12.2017 Bail	Male assaults female	Grabbing and pulling her from the fence	2 years’ imprisonment	3 months’ imprisonment	3 months’ imprisonment
08.01.2017 Bail	Assault with intent to injure	Grabbing her, choking her and yelling threats at her	3 years’ imprisonment	1 year’s imprisonment	10 months’ imprisonment
One	04.07.2018	Male assaults female	Pushing, shoving, slapping and throwing her in the bush	2 years’ imprisonment	1 year and 6 months’ imprisonment	1 year’s imprisonment
incident	04.07.2018	Assault with intent to injure	Chasing her and punching, resulting in unconsciousness	3 years’ imprisonment	2 years’ imprisonment (concurrent with previous offence)	1 year and 10 months’ imprisonment
Overnight	03.08.2018	Assault with intent to injure	Forcing her into the wardrobe and assaulting her	3 years’ imprisonment	2 years’ imprisonment	1 year and 11 months’ imprisonment
incident	04.08.2018	Male assaults female	Slapping her and pulling her back up the stairs	2 years’ imprisonment	6 months’ imprisonment	5 months’ imprisonment

Was the sentence manifestly excessive?

[14]   In Wati v R, I summarised the Court’s general approach to male assaults female offending as follows:9

[18] As to the male assaults female charges, I note there is no tariff for this offence. For single offences, a sentence of imprisonment can range from two months to 12 months’ imprisonment. It is never easy to fix a starting point in cases involving domestic violence because the circumstances of cases vary so widely and sentencing Judges must work within a range available to them for multiple offences. In general, Courts have imposed sentences of around two to three years' imprisonment on charges involving domestic violence. One of the factors taken into account when fixing a starting point is the period over which the violence was inflicted.

[15]   It is particularly difficult to come to an appropriate end sentence where there has been a significant number of violent assaults over an extended period. As Judge Ronayne appreciated, sentencing in such a situation cannot be a mathematical exercise where individual starting points are identified and their sum taken as the overall

9      Wati v R [2015] NZHC 2064.

starting point. There is a need to stand back and undertake an overall assessment of the seriousness of the offending.

[16]   There is a dearth of relevant Court of Appeal precedent in this area. Neither Ms Soondram for Mr Thompson nor Mr Teppett for the Crown could really point to useful authority. Ms Soondram cited Nathan v Police,10 R v Walker11 and Carson v

R.12  Nathan is of limited use because it dealt with fewer instances of offending over a longer time; Walker is not useful due to the impact of sexual offending on the sentence imposed; and Carson is difficult to apply because it does not clearly set out the starting points, uplifts or discounts which produced the end sentence of three years’ imprisonment.

[17]The Crown simply supported Judge Ronayne’s analysis.

[18]   I have identified Court of Appeal cases which together have produced a range of sentences. The range goes from sentences higher than in the present case to sentences lower than in the present case. The facts of each case are, naturally, dissimilar.  But the range gives me broad assistance in my assessment of whether  Mr Thompson’s sentence is manifestly excessive. I will summarise them.

[19]Maihi v R involved more serious offending over a longer span of time:13

(i)Mr Maihi pleaded guilty to one charge of wounding with intent to injure and three charges of injuring with intent to injure arising out of four separate attacks on his partner over a 19-month period, as well as one charge of assault on a child. The first injuring with intent offence involved verbal abuse, punches to the head and kicking in the head while the victim was on the ground attempting to escape but fading in and out of consciousness. The second involved climbing into the victim’s bedroom through a window and punching her in the head numerous times while she was in bed. One or more of these blows

10     Nathan v Police [2018] NZHC 1740.

11     R v Walker [2013] NZHC 1945.

12     Carson v R HC Rotorua CRI-2011-463-23, 8 June 2011.

13     Maihi v R [2016] NZCA 205.

glanced off the victim and onto their baby who was also in the bed; this was the basis of the assault on a child charge. The punches to the head continued after the victim managed to get out of bed and put the baby in her bassinet, and there was one hard punch to the ribs. The third charge involved waking the victim and punching her repeatedly in the face and head, continuing to punch her as she attempted to crawl away. The wounding with intent charge arose from Mr Maihi punching the victim in the head without warning, causing loss of consciousness, getting on top of her (while she was unconscious) and repeatedly punching her about the head as well as kicking her in the genitals. He did not stop attacking her even after she began to “play dead”. The victim sustained a number of injuries, including multiple cuts, bruising and swelling to the head and eye sockets, loss of sensation in her cheek and teeth, tenderness, a broken rib and a broken nose, as well as lasting emotional damage.

(ii)The Judge set starting points of three years for the first incident, two years and six months for the second, two years and six months for the third, and two years for the fourth, imposed cumulatively for a total of ten years’ imprisonment. The Judge reduced this to eight years to reflect totality. The Judge then applied an uplift of three months for previous convictions for violence and granted discounts of six per cent for remorse and efforts at self-improvement and 18 per cent for the guilty plea. On appeal the Court considered the starting points appropriate but the totality adjustment too small, adjusting the overall starting point to six years and six months. The uplift for previous offending was then increased to six months, with a further uplift of three months imposed for offending while subject to release conditions. The Court left in place the six per cent discount for mitigating factors and the 18 per cent discount for the guilty plea, resulting in an end sentence of five years and six months’ imprisonment.

[20]   Clark v R, on an overall assessment of the levels of violence, approaches the levels of violence in the current case.14 However, the violence occurred over a much longer period and there were regular threats to kill:

(i)Mr Clark pleaded guilty to charges for violence of medium severity against his partner and children in the context of a six-year period of domestic violence. Regarding his partner there were three charges of injuring with intent, one representative charge of male assaults female and one representative charge of threatening to do grievous bodily harm. Regarding his children there were two representative charges of assaulting a child and one representative charge of male assaults female. The injuring with intent charges arose from three incidents. The first involved a backhand hit to the victim’s face. The second involved a short period of choking by the throat. The third involved a slap to the face, punch to the stomach and kick to the thigh and hip requiring a visit to the doctor and time off work. The two representative charges covered a six-year period of regular punching and hitting, resulting in regular black eyes and split lips as well as regular threats to kill the victim and put her where she would not be found. The charges in respect of the children arose from similar violent conduct: punching, slapping and assaults with a belt.

(ii)On the charges involving the partner, the Judge set a six-year starting point. There was no uplift for previous offending. The Judge granted discounts of three months for remorse and 14 months for guilty pleas, producing an end sentence of four years and seven months’ imprisonment. Regarding the offending against the children, the starting point was two years, with discounts of three months for remorse and four months for guilty pleas. The sentence was divided equally between each child as three cumulative sentences. This resulted in a sentence of six years’ imprisonment. Adjusting for totality the Judge shortened the terms for each of the sentences involving the

14     Clark v R [2013] NZCA 63.

children to reach a final overall term of five years and six months’ imprisonment.

(iii)On appeal, the Court accepted that six years was an appropriate starting point for all the offending, comprised of four years and six months for the offending against the partner and 18 months for offending against the three children. However, the Court increased the discount for remorse and efforts to reform to six months. This was followed by a 20 per cent reduction recognising guilty pleas, producing a final sentence of four years and five months.

[21]   Johnstone v R is perhaps closer to the degree of violence in the present case, although the victim suffered a fractured wrist in one assault.15 The violence was inflicted over a shorter period of time:

(i)Mr Johnstone was tried and convicted on nine counts for events occurring over four months. This was while Mr Johnstone was subject to a lifetime parole condition that he was not to associate with the complainant. He was convicted on four charges of male assaults female, one charge of causing grievous bodily harm with reckless disregard, one charge of intentional damage, two charges of threatening to kill and one charge of breaching a release condition. The grievous bodily harm charge related to an instance where Mr Johnstone threw the victim across the room, fracturing her wrist. The male assaults female charges included kicking causing bruising and lifting and throwing the victim onto concrete. The two threatening to kill charges arose after the victim had locked Mr Johnstone out of her house, and he attempted to kick down the door and threatened to kill both the victim and her neighbour if either called the police.

(ii)The Judge avoided imposing cumulative sentences because they would result in an unjustifiably high sentence. Instead he took an 18-month starting point on the grievous bodily harm charge before applying an

15     Johnstone v R [2013] NZCA 214.

uplift of two years for all the other charges. This produced a total of three years and six months’ imprisonment. The Judge discounted the personal aggravating factors of offending whilst on parole. The Judge also  noted  the  “dismal”  nature  of  the  pre-sentence  report  and  Mr Johnstone’s lack of remorse or insight into his current offending. There were no mitigating factors or guilty plea to discount for. The Court of Appeal upheld the sentence on appeal.

[22]A case involving less serious offending over an extended period of time is

A v R:16

(i)The defendant was found guilty in the District Court of five charges for abuse of his wife across their two-year relationship, which ran from January 2014 through their marriage in September 2014 and concluding in September 2015. It is not clear at what point in the relationship the abuse began. There were three charges of assault with intent to injure, one charge of threatening to kill and a representative charge of assault. Mr A was also found not guilty on seven charges and the jury was hung on 12 others, which the Crown did not prosecute again. The first assault with intent to injure involved Mr A punching his wife repeatedly on her shoulder and grabbing her by the hair while driving on the motorway. The second was for twisting her nose. The third was for forcefully hugging her while she was pregnant and sick, then yanking her head by her hair. The threatening to kill charge regarded a threat causing her to seek refuge at a friend’s house. The representative charge of assault was for regularly assaulting her in various ways throughout their relationship.

(ii)The Judge took the motorway assault as the lead charge and imposed a starting point of 16 months. An uplift of nine months

16     A v R [2017] NZCA 278.

was applied for the other offending. This produced a total of 25 months. The Judge then granted a five-month discount for remorse, rehabilitation, and time spent on restrictive bail, resulting in an end sentence of 20 months’ imprisonment. The sentence was upheld on appeal.

[23]   As is apparent, none of the cases I have discussed have a marked factual similarity with the present case. Sentencing for domestic violence offending is inevitably highly fact-specific. A Judge must assess the degree and pattern of violence across incidents, the period of time in which the incidents of violence occurred, and other aggravating or mitigating details of the behaviour. If the offending involved wounding, the use of weapons and/or threats to kill then sentences will naturally be higher. Those features are lacking in this case.

[24]   Mr Thompson’s assaults did not feature weapons and he was not charged with threatening, though he did yell “I might as well stab you”. Nevertheless, the offending was consistently seriously violent. In every instance of offending but the first he caused damage or other danger to the victim’s head by punching, throwing, pushing or choking her. He caused her to become dazed or lose consciousness at least twice. The violence appears often to have been humiliating in nature – particularly throwing the victim into a bush, pouring a drink on her, spitting in her face, dragging her and trapping her in an enclosed wardrobe. The detention in the wardrobe was preceded by kidnapping the victim from a public place by taking her in a car. The attack in her back garden and the detention in the wardrobe also appear to have been sustained for long periods. The offending behaviour lasted for more than seven months.

[25]Into the assessment must come consideration of:

(a)the fact that all of the offending after the first incident occurred while Mr Thompson was on bail and, in every case, he was in breach of a particular condition of bail that he not associate with his victim; and

(b)the violence on 4 July 2018 occurred while Mr Thompson was awaiting trial for the violence which occurred on 8 January 2018. Mr Thompson was convicted of that offending.

[26]   Judge Ronayne gave an overall discount of 20 per cent to mark the fact      Mr Thompson entered pleas of guilty for all but the charge upon which he stood trial. That is particularly generous. Mr Thompson’s pleas of guilty came at varying times and he is not entitled to any credit on the charge upon which he was found guilty.

[27]   I agree with the starting points adopted by Judge Ronayne.  The attacks  on   4 July 2018 and 3–4 August 2018 were particularly serious and warranted sentences towards the upper end of the ranges available.

[28]   The overall starting point of five years and nine months was reduced by one year and three months (22 per cent) to take account of totality, and the further adjustments led to the end sentence of three years and nine months.

[29]   I have stood back and considered the overall pattern of violence, the levels of violence, the period it covered and the context of repeated breaches of bail. In my view, the end sentence does not sit out of place in the range of sentences approved by the Court of Appeal in the cases I have discussed.

Decision

[30]   On my analysis, the end sentence of three years and nine months’ imprisonment was within the range available to Judge Ronayne.

[31]The appeal is dismissed.

Brewer J