Tolliver v Police - [2024] NZHC 3624

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 3624
Decision Date: 29 November 2024

CaseChat Overview and Summary

Hugh Tolliver appeals against his sentence for breaching a protection order and other related offences, with the appeal focusing on the term of imprisonment. The appeal was heard by Blanchard J on 25 November 2024 and judgment was delivered on 29 November 2024. The appeal is based on the argument that the starting point for sentencing, particularly for the breach of the protection order, was too high and the uplift for his previous history of family violence offending was excessive. The appeal is assessed under the Criminal Procedure Act 2011, where the court must allow the appeal if there was an error in the sentence such that a different sentence should be imposed.

The court considered the starting point for the breach of the protection order, which the Judge set at 18 months. The Judge took into account Mr Tolliver's previous breaches of the protection order, noting the compounding effect and the intimidation and demeaning of the victim. The court compared the Judge's decision to various cases, including Mitchell v R and Tetau v Police, and concluded that while Mr Tolliver's breach was serious, a starting point of 18 months was excessive. The court found that an appropriate starting point would have been 14 months’ imprisonment.

The court also considered the uplift for Mr Tolliver's previous history of family violence, which was set at three months. The court found that this uplift was justified given Mr Tolliver's extensive record of family violence. Despite the reduction in the starting point, the court found that the sentence of 15 months’ imprisonment was appropriate.

The appeal is dismissed, maintaining the sentence of 15 months’ imprisonment.

Orders