Tolliver v Police
[2024] NZHC 3624
•29 November 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-592
[2024] NZHC 3624
BETWEEN HUGH TOLLIVER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 November 2024 Appearances:
C Fredric for Appellant G Young for Respondent
Judgment:
29 November 2024
JUDGMENT OF BLANCHARD J
This judgment was delivered by me on Friday, 29 November 2024 at 4:30 pm.
Registrar/Deputy Registrar
Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: C Fredric, Auckland
TOLLIVER v NEW ZEALAND POLICE [2024] NZHC 3624 [29 November 2024]
[1] Mr Tolliver appeals against a decision of Judge C M Ryan dated 15 October 20241 sentencing him for his ninth breach of a protection order2 and other offences, including driving at a dangerous speed3 and driving while disqualified (third or subsequent).4 He was sentenced to 15 months’ imprisonment, as well as disqualified from driving for 15 months. It is against the term of imprisonment that he appeals.
The offending
[2] Mr Tolliver and the victim were formerly in a relationship. On 30 December 2015, the Papakura Family Court made a final protection order in favour of the victim against Mr Tolliver. The protection order was amended on 10 November 2022 by the Papakura District Court to include their three children.
[3] On 3 November 2023, at 12:32 pm, Mr Tolliver, in breach of the protection order, made a phone call to the victim. At 12:34 pm, he left a message on her voice mail stating:
I don’t wanna talk to you, put the kids on the phone, put the kids on the phone. I don’t wanna talk to you, stop yelling and screaming they’re getting abused. Hey, didn’t you make plans to see my Mum for breakfast with the kids this morning? Fuck up I don’t wanna talk about, don’t wanna hear you’re shit. Fuck up.
[4] The other offending included (in addition to driving at a dangerous speed and driving while disqualified (third or subsequent)) theft over $500,5 failing to answer District Court bail, possession of methamphetamine6 and possession of methamphetamine utensils.7
1 [Redacted] [Sentence under appeal].
2 Family Violence Act 2018, s 90(b) and 112(1)(a). Maximum penalty: three years’ imprisonment.
3 Land Transport Act 1998, s 35(1)(b). Maximum penalty: three months’ imprisonment or $4,500 fine.
4 Section 32(1)(a) and (4). Maximum penalty: two years’ imprisonment, $6,000 fine, and disqualified from holding or obtaining a driver licence for one year or more.
5 Crimes Act 1961, ss 219 and 223(d). Maximum penalty: three months’ imprisonment.
6 Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty: six months’ imprisonment,
$1,000 fine or both.
7 Section 13(1)(a) and (3). Maximum penalty: one year imprisonment or $500 fine or both.
The sentence
[5] The Judge set a starting point of 22 months’ imprisonment, made up of 18 months for Mr Tolliver’s protection order breach and four months for his other offending.
[6] In adopting a standalone starting point of 18 months for the breach of protection order charge, the Judge took into account his previous protection order breaches. While the breach was arguably “not as bad” as past breaches, the Judge nevertheless noted that the breach had a compounding effect. Furthermore, it demeaned the victim and intimidated her.
[7] The Judge then turned to Mr Tolliver’s personal aggravating and mitigating factors. She considered uplifts of:
(a)one month necessary to reflect that some of the offending occurred while on bail (namely the theft under $500; failing to appear; possession of methamphetamine and possession of methamphetamine utensils) and
(b)three months necessary to reflect Mr Tolliver’s previous history of family violence offending.
[8]The Judge also considered discounts of:
(a)four-and-a-half months (being roughly 20 per cent of her 22-month starting point) necessary for Mr Tolliver’s guilty plea; and
(b)three-and-a-half months (being roughly 15 per cent of her 22-month starting point) warranted for Mr Tolliver’s safety plan, apology letter and rehabilitative efforts.
[9] The Judge then applied a further three-month reduction, bearing in mind the need to reach a sentence that reflected the totality of Mr Tolliver’s offending. She accordingly adopted an end-sentence of 15 months’ imprisonment.
Approach to appeal
[10] This is an appeal against sentence under s 244 of the Criminal Procedure Act 2011. The Court must allow the appeal if it is satisfied that there was an error in the sentence such that a different sentence should be imposed.8
[11] A manifestly excessive sentence will be one in which a material error exists.9 Whether a sentence is manifestly excessive is assessed on the end sentence adopted, rather than the process by which it was reached.10
Grounds of appeal
[12]Two grounds of appeal are advanced:
(a)first, that the starting point on the lead charge of breaching a protection order was too high; and
(b)secondly, that the uplift of three months for Mr Tolliver’s previous offending was excessive.
The starting point
The Judge’s decision
[13] The Judge noted the Court of Appeal’s comments in Mitchell v R that – in contrast to the usual sentencing methodology – a defendant’s previous protection order breaches are directly relevant to setting a starting point.11 In light of that case, another case concerning Ms Mitchell in 2022,12 and the decisions of this Court in Tetau v Police,13 and Palmer v Police,14 the Judge rejected the submission that Mr Tolliver’s breach of the protection order was low-level offending, like in Williams v Police.15
8 Criminal Procedure Act 2011, s 250(2). See also Te Aho v R [2013] NZCA 47 at [30].
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].
10 At [36].
11 Sentence under appeal, above n 1, at [42]–[43], citing Mitchell v R [2013] NZCA 583.
12 Mitchell v R [2022] NZCA 159, [2022] NZFLR 291.
13 Tetau v Police [2015] NZHC 1284.
14 Palmer v Police [2015] NZHC 143.
15 Sentence under appeal, above n 1, at [35], citing Williams v Police [2014] NZHC 3255.
[14] The Judge relied, in particular, on Tetau. In that case, Mr Tetau was sentenced for his eleventh breach of protection order, having just received a sentence of community detention and intensive supervision for his tenth breach two days prior. He had been in bed with the victim and, after becoming angry at her, rejected her requests to leave. When Police arrived, they found Mr Tetau in an agitated and aggressive state. He continued to verbally abuse the victim and ultimately resisted arrest. A starting point of two years’ imprisonment was held to be available on appeal, bearing in mind that Mr Tetau was effectively being sentenced on his tenth and eleventh breaches.16
[15] By comparison, the Judge accepted that Mr Tolliver’s offending was less serious than that in Tetau. In adopting her 18-month standalone starting point she said:
[52] Here, we have the ninth breach. We have persistent breaches. Mr Tolliver has been in jail for previous breaches of a protection order. He has also been given merciful therapeutic sentences. For example, the last breach in 2021 resulted in a therapeutic sentence. He has received community detention for offending that involves violence. He has received home detention. So he has received imprisonment, home detention, community detention, supervision and he keeps breaching. None of those sentences work.
[53] So, I turn then to the ninth breach of the protection order and yes, arguably it is not as bad as some other breaches. Nonetheless, there is a compound effect on the victim and on her children because that answer phone, if the children are around and hear what is said, demeans and diminishes the mother of the children. It shows their father, to whom one might expect they look up, is putting down their mother and that is, in my view, a pretty low blow. The message also intimidated her as it was intended to do. [In] my view a starting point of 18 months is appropriate for the ninth breach.
Mr Tolliver’s argument
[16] Mr Fredric submitted, for Mr Tolliver, that none of the cases referred to by the Judge justified a starting point of 18 months. He took three of the authorities relied upon in turn.
[17] The first was Mitchell. In that case, Ms Mitchell pleaded guilty to breaching a protection order and intentional damage. She left two abusive voice messages on her victim’s answerphone. She then went to the victim’s house with a tyre iron and went
16 Tetau v Police, above n 13, at [41].
around smashing windows and damaging the property. She then entered the house through the front door, which she had smashed. The victim was at home. She stood for a short time in the hallway, yelling for the victim in a threatening manner, swearing and shouting abuse at the occupants (his partner and three visiting friends). There had been nine previous separate breaches of the protection order made against her five years prior. The Court of Appeal upheld a standalone starting point of 18 months for the breach of the protection order.17
[18] Mr Fredric submitted that Mitchell should be distinguished because Ms Mitchell’s offending was dramatically more serious. He submitted that there was simply no comparison between Ms Mitchell’s offending and Mr Tolliver’s single abusive voice mail message.
[19] The second was Tetau, already discussed, which the Judge relied upon in setting her starting point. As noted, a starting point of two years’ imprisonment was endorsed on appeal. Mr Fredric submitted that Mr Tetau’s offending was significantly more serious than Mr Tolliver’s: Mr Tetau’s offending was in person and he had used violence and subjected the victim to intimidating verbal abuse. Furthermore, he resisted arrest and had to be restrained.
[20] The third was the later case involving Ms Mitchell.18 By 2022, Ms Mitchell had 80 previous convictions for breaching or attempting to breach a protection order. She was found guilty of two further charges of breaching a protection order and three further charges of attempting to breach a protection order. The breaches related to mail sent to the victim from prison. A starting point of two and a half years was upheld by the Court of Appeal.
[21] Mr Fredric submitted that this later case involving Ms Mitchell was in an entirely different category because of her 80 previous breaches. He submitted that, by comparison, the 18-month starting point for Mr Tolliver was excessive.
17 Mitchell v R, above n 11, at [14].
18 Mitchell v R, above n 12.
[22] Mr Fredric then went on, as he did before the Judge, to place particular reliance on Williams v Police. In that case, Mr Williams had been drinking at an associate’s address. The victim arrived and was also intoxicated. An argument ensued and Mr Williams punched the victim in the mouth. This cut her lower lip, bruised her jaw and caused her to receive six stitches. It was Mr William’s fifth breach of the protection order against him. On appeal, this Court considered a starting point of ten months (comprised of seven months for the current offending and three months for Mr William’s previous breaches) to be warranted.19 Mr Fredric submitted that the offending in Mr Williams’ case was more serious than Mr Tolliver’s offending because it involved blatant physical violence against someone who held a protection order.
[23] Mr Fredric acknowledged that Mr Tolliver’s eight previous protection order breaches were relevant to setting a standalone starting point for the current offending here. However, his overall submission was that Mr Tolliver’s offending was at the lower end in terms of breaches of protection orders. Mr Tolliver was not attempting to speak to the victim but wanted to speak to his children. He then left an abusive voice mail message, although the message did not contain threats of harm. He did not physically go to the victim’s address and did not physically assault the victim. Furthermore, Mr Tolliver had not breached the protection order in more than two years prior to the current offending. Therefore, the breach was not part of an ongoing and repeated campaign of intimidation.
Discussion
[24] I agree with the Judge and counsel for the Crown, Mr Young, that Mr Tolliver’s breach was a very serious one notwithstanding that it consisted of one voice mail message. It was very serious because it was the tenth breach. In my view, where there are multiple breaches, each breach is inherently more serious than the previous one. Indeed, as Mander J indicated in Tetau, recidivism is the key consideration where there are repeated breaches:20
The submission that the two breaches should be considered as minor falls away when regard is had to Mr Tetau’s recidivism. The breaches have to be considered in the context of Mr Tetau’s repeated failure to abide by the terms
19 Williams v Police, above n 15, at [12].
20 Tetau v Police, above n 13, at [38].
of the protection order. The seriousness with which breaches are required to be dealt with by the Courts, particularly in the case of repeat offenders, is recognised by the policy that lies behind the protection order regime.
[25]I also agree with Mander J’s comments that:21
Breach of a protection order is an innately serious matter. It represents a breach of a Court order imposed for the purposes of protection. The order is rendered worthless if breaches are not met with appropriate responses, particularly so where offenders repeatedly breach the order. In such cases, an appropriately stern response is required.
[26] Furthermore, I agree with Mr Young that the decision of Katz J in Palmer v New Zealand Police is very relevant here. This was a case that the Judge relied upon which Mr Frederic did not focus on in his submissions.
[27] In that case, Mr Palmer was staying at the victim’s home. They had previously been in a relationship and decided to spend time together as a couple again. Mr Palmer woke the victim by pulling her hair. The victim told Mr Palmer to leave her alone so she could sleep. Mr Palmer then forced her head into the mattress, while still holding her hair. The following day, Mr Palmer pestered the victim about what she had been doing. She asked him to leave her alone. He would not, so the victim left the address. When she returned, he continued to interrogate and verbally abuse her. An argument broke out and the victim told Mr Palmer to leave. He refused to leave and remained at the victim’s house. She was forced to leave the house to avoid him but returned the following day to repeat her request that he leave. He still refused to leave. The victim called the police two days later following an argument. Mr Palmer left when he heard that the police would be attending the house. He had six previous convictions for breaching the protection order. Mr Palmer’s conduct involved three protection order breaches. The High Court upheld a starting point of 14 months.
[28] I also agree with Mr Young that the Judge was right to put little weight on Williams v Police. Mr Williams was being sentenced on his fifth breach of a protection order. While Mr Williams’s breach involved violence, Mr Tolliver’s culpability was higher owing to the much larger number of breaches.
21 At [40].
[29] Mr Frederic suggested that the Judge relied on the second Mitchell decision from 2022 in reaching her standalone starting point for the breach of protection order offending. I do not think this is correct. The Judge only relied on this case when she decided that there should be a four-month uplift for Mr Tolliver’s other offending.22
[30] As noted, Mr Fredric placed emphasis on the fact that there had been no breach of the protection order for around two years. Respectfully, I do not accept that this makes the breach less serious. It is a neutral factor.
[31] In light of the various cases that I have mentioned, it is clear that setting a starting point for this kind of offending is difficult because of the various ways in which the offending can arise. However, my review of the case law leads me to the conclusion that the starting point of six months proposed for Mr Tolliver is clearly too low.
[32] Notwithstanding the seriousness of Mr Tolliver’s offending, however, I accept that – when compared to Palmer – a standalone starting point of 18 months’ imprisonment was excessive. The message that Mr Tolliver left was abusive and intimidating and required a stern response in light of his repeated breaches. But his offending also has to be seen in light of the comparable authorities, and consistent with the starting points adopted in those cases. Accordingly, I consider the appropriate starting point for Mr Tolliver’s offending was 14 months’ imprisonment.
Uplift for family violence
[33] Mr Fredric argued that the Judge’s uplift of three months for Mr Tolliver’s previous history of family violence was too great. His submission was based purely on the first Mitchell case.23
[34] In that case, Ms Mitchell’s starting point was uplifted by two months for her previous record and for a breach of bail imposed in relation to the protection order which the Court of Appeal described as flagrant. She had a long record of previous
22 Sentence under appeal, above n 1, at [54].
23 Mitchell v R, above n 11.
convictions, including for assault. The Court of Appeal considered that, in the circumstances, an uplift of two months was “modest.”24
[35] The uplift in Ms Mitchell’s case was for all her previous offending, which was not strictly limited to family violence. As such, a comparison with Mr Tolliver’s case is difficult.
[36] It is clear to me, however, that Mr Tolliver had a very extensive record of family violence warranting an uplift to the Judge’s starting point. The Judge summarised the relevant history in this way:
[26] His violent offences include disorderly behaviour, resisting police twice, one of which was a family violence offence, fighting in a public place, a non-aggravated robbery (robbery by threat), threatening property (family violence), assault twice (both family violence offences), miscellaneous intimidation offences twice, both of which were family violence offences, speaking threateningly twice, both of which were family violence offences, wilful trespass (family violence), wilful damage three times, two of which were family violence offences, male assaults female (family violence) breaching a protection order eight times (family violence) and assaulting a person with a blunt instrument (family violence).
[27] His family violence and bail report disclose 38 family violence notations, which means 38 occasions since 9 August 2008 when the police were called to an address where he was living or visiting because of perceived violence or actual violence, with the call coming from somebody in that house or a concerned neighbour. For most of those he is the offender, the suspect, or a cleared offender, the latter meaning he has been charged . Sometimes he is listed as being bound by the order, that is a police safety order, which has been extended because of the behaviour.
[28] In 2022 he was the predominant aggressor in a family violence investigation. There are two protection orders that have been taken out against him, one in 2015 and one in 2016, and two police safety orders, one in 2015 and one in 2019.
[37] In my view, this record easily justifies the three-month uplift that the Judge made.
Final conclusion
[38] I have determined that the Judge’s standalone starting point for breach of the protection order should have been 14 months rather than 18 months’ imprisonment,
24 At [17].
but that there was no error in the Judge’s uplift of three months for Mr Tolliver’s relevant criminal history. As Mr Tolliver takes no issue with the other aspects of the Judge’s sentence, I accordingly consider that his sentence should have been constructed in the following way, before regard was had to the importance of totality:
(a)a starting point of 18 months’ imprisonment (14 months for the breach of protection order offending and four months for the other offending);
(b)uplifted by four months for his personal aggravating factors (offending while on bail, and previous criminal history); and
(c)reduced by 20 per cent for Mr Tolliver’s guilty plea and 15 per cent for his rehabilitative efforts.
[39] That would have resulted in a sentence of over 15 months’ imprisonment, slightly more than the end sentence that the Judge imposed. Even taking account of totality, I do not consider that a sentence of less than 15 months’ imprisonment should be adopted here. Accordingly, although I have taken a different route, I have reached the same result as the Judge.
[40] For these reasons, I consider that the Judge was correct to sentence Mr Tolliver to 15 months’ imprisonment.
Result
[41]The appeal is dismissed.
Blanchard J
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