Tudor v The King

[2024] NZHC 1960

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-38

[2024] NZHC 1960

JESSE MICHAEL TUDOR

v

THE KING

Hearing:	8 July 2024
Appearances:	A Osama and M Fyers for Appellant L Glaser for Crown
Judgment:	16 July 2024
Reissued:	19 August 2024

JUDGMENT OF MUIR J

Sentence Appeal

This judgment was reissued by me on 19 August 2024 at 4.00pm,

………………………………… Registrar/Deputy Registrar

Solicitors:

McKenna King Hamilton Legal

TUDOR v R [2024] NZHC 1960 [16 July 2024]

Introduction

[1]                 Mr Jesse Tudor pleaded guilty to breaching a protection order, wilful damage of a dwelling house, and breach of  release  conditions.  He  was  sentenced  by  Judge A I M Tompkins on 19 April 2024 to two years and three months’ imprisonment.1

[2]                 Mr Tudor now appeals his sentence of 27 months’ imprisonment on the basis that the sentence was manifestly excessive. He says that no starting point was identified, that no uplifts for criminal history or previous offending could have possibly resulted in an end sentence so high, and that the two-step methodology in Moses v R was not followed.2

The facts

[3]                 Mr Tudor is the adult son of the victim. On 20 October 2020, a Final Protection Order was issued by the Hamilton District Court in respect of an application in which Mr Tudor was the respondent and the victim was the applicant.

[4]                 On 29 October 2023 at about 9.55 pm the appellant arrived at the victim’s address in Hamilton where he damaged the exterior weatherboards,3 before texting the victim telling her to call him. When the victim called, Mr Tudor yelled at her asking where her tobacco was and threatening further damage to the house. He swore at the victim multiple times and called her a liar, before inflicting further damage and leaving the property.

[5]                 The breach of release conditions charge relates to a failure by Mr Tudor to report to his probation officer on 22 November 2023.

District Court decision

[6]                 Mr Tudor first came before Judge Tompkins for sentence on 18 March 2024. There was no final pre-sentence report (that is a pre-sentence report with appendices)

1      Police v Tudor [2024] NZDC 8770.

2      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

3      Giving rise to the wilful damage charge.

available as Mr Tudor had, in direct terms, told the interviewing probation officer that he would not participate. The report that was before the Court (without Mr Tudor’s input) indicated that he had a high-risk of re-offending and a high-risk of harm to others. It was noted that he had little regard for community-based sentences and it was readily apparent to the Judge that the full range of sentencing responses available to the Court had been imposed since Mr Tudor’s first appearance in 2010 and had been of no deterrent value whatsoever.

[7]                 The Judge also had before him a detailed victim impact statement from the victim. She advised that for about a decade or so, Mr Tudor has had “an addiction to methamphetamine and due to his use of this it has affected his mental health … I feel it is impacting and damaging his brain which in turn affects his behaviour, his decision making, his level of aggression, his mood, his view on life and what is reality and what is not.” She noted that her son had been “slipping away” due to his drug use, and that she has been let down by available agencies until things have tended to get “really bad” and she has had to involve the police. By that point her son has already put her safety at risk or damaged her possessions. She stated that her son needed support in adhering to his medication regime and in recovery from methamphetamine addiction, indicating that she would like to see her son in a residential programme.

[8]  Given this advice, the Judge declined to sentence Mr Tudor and adjourned the fixture so that counsel could investigate the availability of a residential drug treatment programme for him.

[9]                 When Mr Tudor came before the court again on 18 April, it was apparent that no residential rehabilitative programme was available due to long waiting lists and the requirements for suitability assessments.  The Judge therefore proceeded to sentence.

[10]              The Judge’s sentencing notes refer to the fact that Mr Tudor was particularly forthright at sentencing, eventually becoming so abusive that he was forcibly removed from the Court and the sentencing was concluded in  his  absence.  He  noted that  Mr Tudor’s counsel provided a letter to the Court from Mr Tudor, outlining the progress  he  had  made  in  learning  skills  and  anger  management  tools  at  Spring Hill Prison during his time there. The Judge pointed out that there was a strong

disconnect between the picture Mr Tudor painted of himself in that letter and his presentation in Court at sentencing.

[11]              The Judge was clearly concerned about Mr Tudor’s elevated risk of violent offending upon release. Having regard to that risk, and the desirability of achieving reintegration and rehabilitation prior to Mr Tudor’s release, the Judge scoped with counsel, as recorded in his Sentencing Notes, whether a “heightened” term of imprisonment of around two and a half years might be imposed, which he considered might (given a strong recommendation from the Court) allow Mr Tudor the opportunity to enter and complete either a drug treatment unit programme or an interpersonal violence programme within the prison.4

[12]              The Judge observed that applying a typical sentencing approach would mean that Mr Tudor would likely be eligible for immediate release on the basis of time served, subject only to general or non-specific release conditions which the Judge noted Mr Tudor was likely to “ignore completely”.5

[13]              The sentence ultimately imposed was two years and three months’ imprisonment on the lead charge (breach of a protection order). On the two remaining charges (wilful damage and breach of release conditions) the Judge convicted and discharged Mr Tudor.

Law on appeal

[14]              This Court must allow the appeal if there is an error in the sentence and a different sentence should be imposed.6  Otherwise, the Court must dismiss the appeal.7

[15]              The sentence must be manifestly excessive before the appeal Court may substitute its own views as to the appropriate sentence. The Court will generally not intervene where the sentence is within the range that can properly be justified by

4      This suggestion triggered the outburst from Mr Tudor which led to his removal from the courtroom.

5      Police v Tudor, above n 1, at [12].

6      Criminal Procedure Act 2011, s 250(2).

7      Section 250(3).

accepted sentencing principles.8 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.9

Grounds of appeal

Appellant submissions

[16]              Counsel for Mr Tudor, Mr Osama, submits that, although the Judge did not identify a starting point, working backwards from the overall sentence and taking into account the relevant uplifts and discounts, it appears as though a starting point in the order of 26 to 28 months’ imprisonment was adopted.

[17]              He submits that an available starting point on the lead charge, the breach of the protection order, was in the order of seven to eight months, uplifted to between nine and 11 months on account of the remaining charges. After discounts to reflect the guilty plea and criminal history he submits an end sentence of eight to 10 months’ imprisonment was appropriate.

Crown submissions

[18]              For the Crown, Ms Glaser submits that the sentence was available to the Judge having regard to the specific circumstances of the case. She emphasises that the starting point appropriately took into account the principles of denunciation and deterrence.10 She submits that context is everything and that Mr Tudor had only recently been released from prison after serving a sentence on similar charges and in respect of the same victim.

[19]              Ms Glaser submits that there is no fixed maximum in respect of uplifts for previous convictions, and that the extent and manner to which they are taken into account are a matter for the sentencing judge. She submits that Mr Tudor’s continued pattern of behaviour, as demonstrated by his criminal history, noncompliance with

8      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].

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

10     Sentencing Act 2002, s 7(1)(e) and (f).

orders and sentences, and ongoing violence toward family members, predicates a considerable risk of further offending. She acknowledges that the Judge did not quantify the basis upon which he accounted for previous convictions but submits that this was taken into account in fixing the appropriate end sentence.

[20]              In terms of adjustments, Ms Glaser submits that although the Judge did not explicitly identify the appropriate uplifts or reductions, it was inherent in the approach adopted by him. Ms Glaser submits that these include:

(a)Mr Tudor’s criminal history. She submits that the Judge correctly recognised this in an assumed “heightened starting point”.

(b)Offending while on release conditions. She submits that as Mr Tudor was subject to release conditions at the time of the offending, this should be taken into account as an aggravating factor.11 Citing to Lavea v R, she submits that an uplift in the vicinity of 20 per cent would have been available.12

(c)Guilty plea. Ms Glaser accepts that a 25 per cent reduction would have been available to Mr Tudor given the timing of his plea.

Discussion

[21]              I have considerable sympathy for the circumstances in which the highly experienced District Court Judge found himself. These were, in summary:

(a)a loving single mother with relevant professional expertise, and who has been required within the last three years to deal with the death of both her parents, and within the last eight years, a younger brother;

(b)a son, the appellant, with 86 previous convictions, including six for wilful damage, one for prior breach of the protection order his mother had obtained against him in 2020, eight for breaching Court imposed

11     Robertson v R [2016] NZCA 99 at [79].

12     Lavea v R [2014] NZCA 192.

orders, conditions or sentences and 13 convictions with a family violence component;

(c)the appellant’s involvement in eight family harm incidents since March 2020, seven of which related to his mother;

(d)the appellant’s long standing methamphetamine addiction which in his mother’s (obviously fully informed) opinion had reached the point of “impacting and damaging his brain”.

[22]              In these circumstances the Judge could simply have imposed the sentence which he accepted would apply “in the normal course of a charge such as this”, and which on account of time served, would probably have resulted in near contemporaneous release.13 And so, the cycle would have almost inevitably repeated with the victim’s mother living in constant fear of the next drug-addled contravention of the protection order.

[23]              The Judge did not take this default and easy course. He first adjourned the sentencing to enable inquiries to be made about placement in a residential drug treatment programme. When that was unavailable, he sentenced on a basis, which although not indicated by usual principles, was clearly influenced by:

(a)the necessity that the defendant’s conduct be denounced and deterred in the strongest possible terms;

(b)the ongoing risk that the defendant represents to his mother, for which the existing protection order was “entirely inadequate”; and

(c)the obvious desirability of the defendant entering rehabilitation prior to release or in the context of Parole Board imposed release conditions.

[24]              In the result, he imposed a sentence of two years and three months’ imprisonment without reference to a starting point, uplifts, or discounts. Paragraphs

13     Police v Tudor, above n 1, at [11].

15 and 16 of his Sentencing Notes are insightful in terms of the extent to which, in doing so, the Judge was attempting not only to mitigate the risk of further offending but to best advance the defendant’s rehabilitative prospects:14

[15]      I express my clear  view  that  given  that  sentence  just  imposed  Mr Tudor should be afforded the opportunity of entering preferably the three- month DTU programme at Waikeria Prison immediately so as to reduce the otherwise very high risk he presents of further violent offending once released and I also note that given that sentence just imposed then Mr Tudor will appear before the Parole Board as soon as can be arranged and the Parole Board itself will have an opportunity to assess Mr Tudor’s release proposal and the availability of rehabilitative intervention, either within the prison or in the community for a period up to six months past his sentence end date.

[16]      In my view that sentence just imposed is consistent with the Court’s duty to impose a sentence which reduces to the extent that the sentence is able to do so, Mr Tudor’s very high risk of almost immediate violent offending were he to be released immediately without the kind of support, oversight and supervision which the Parole Board ordered conditions may enable the Department to afford Mr Tudor.

[25]              The Judge was unapologetic in not following an orthodox sentencing approach. He clearly considered a more holistic view was necessary taking into account the ongoing anguish Mr Tudor brings to his family and the fact that without strong incentives he was unlikely to ever address the underlying cause of his criminal behaviour.

[26]              The appellant may not realise it, but the sentence imposed was not only in the interests of his family and society, but demonstrably his own interests also. The fact that he has appealed is itself telling in terms of the extent to which he is prepared to elevate immediate self interest over any wider responsibility to rehabilitate himself.

[27]              If I had an unfettered discretion in terms of whether I allowed the appeal, I would not do so. However, although orthodox sentencing methodology should never be considered a straitjacket, it is, nevertheless, necessary to engage with it. Otherwise sentencing becomes, in the eyes of the public at least, a seemingly arbitrary exercise. Likewise, orthodox sentencing principles are conducive to fulfilling sentencing principle 8(e)—the general desirability of consistency.15

14     Police v Tudor, above n 1.

15     Sentencing Act, s 8(e).

[28]              The approach I intend to adopt is therefore to conduct my own orthodox sentencing exercise, benchmark that against the sentence imposed and then, standing back, assess whether appellate intervention is warranted.

Starting point

[29]              The lead offence was the breach of the protection order. Mr Osama refers to three cases which he says justify a starting point of seven to eight months—

Thompson v Police, Irvine v Police, and Hamilton v Police.16

[30]              In Thompson, the defendant faced a single charge of breaching a protection order by causing his victim psychological abuse. He presented at the victim’s house at midnight. She refused to let him in. He nevertheless walked in, demanded to look at her messages and made accusations against her. She had a panic attack.

[31]              The District Court identified a 16 month starting point. This was reduced to nine months on appeal. The following aggravating features were identified:

(a)unlawful entry into the victim’s home at night;

(b)offence committed while subject to a sentence;

(c)family violence (psychological abuse) while subject to a protection order; and

(d)emotional harm.

[32]              I consider the offending in this case to be at least as serious, but likely more so. Again, the offending involved a breach of a protection order and resulted in considerable emotional harm, but there remains the added feature of associated threats.

[33]              In Irvine, Mr Irvine appealed his sentence on two charges of breach of a protection order.  Over the space of three days, he had called the victim 23 times and,

16     Thompson v Police [2020] NZHC 20; Irvine v Police [2017] NZHC 3085; and Hamilton v Police

[2014] NZHC 2698.

on the night of the third day,  went  to  her  house  and  banged  on  her  windows. The District Court Judge adopted a starting point of 10 months’ imprisonment, noting that Mr Irvine had breached the order within days of its implementation and the persistent manner in which he did so. The starting point was upheld on appeal. Unlike the present case, there were no associated threats. Nor did the offending occur in the context of a continued risk of violent offending against family members, as in the present case. The sentencing purposes of deterrence and protection were not therefore as fully engaged.

[34]              In Hamilton, the defendant faced charges of a breach of protection order, male assaults female and breach of release conditions. He had visited the victim’s address, verbally abused her and then pushed her against a wall when she tried to call the police. He had an extensive criminal history, including 10 prior offences of assault and four breaches of a protection order.

[35]              The District Court Judge adopted a starting point of 18 months’ imprisonment for the breach of protection order charge, which was reduced to eight months’ imprisonment on appeal. For the Crown, Ms Glaser submits that the present case is more serious given the history of violence towards the same victim and the ongoing risk of immediate harm to family members. I agree.

[36]              Based on these cases, I consider a starting point of 10 months’ imprisonment appropriate.

Uplift for other charges

[37]              I consider the uplifts suggested by Mr Osama for the remaining charges to be appropriate. I adopt an uplift of two months for the wilful damage charge (with implicit recognition of totality principles) and one month for breach of the release conditions.

Offender related discounts and uplifts

[38]              This was Mr Tudor’s second breach of protection order charge involving the same victim. Nor could it be considered in isolation from his other family violence

related convictions and the multiple family harm incidents to which the appellant’s mother has been exposed. He has six previous convictions for wilful damage (three in a family violence context). He also has multiple convictions for breach of release conditions, conditions of intensive supervision and conditions of community detention.

[39]              There is no fixed limit to the uplift which a court may impose for previous convictions. The manner in which they are to be taken into account is a matter for the sentencing Judge. Previous convictions are an indicator both of character and culpability. They show the need for a greater deterrent response and are a strong indicator of risk of reoffending. To that extent they actively engage multiple purposes of sentencing in s 7 of the Sentencing Act 2002 (the Act). New Zealand appellate courts have long recognised that significant uplifts may be justified in the case of recidivist offending of the same character. What is known as the “Ward principle”17 effectively permits the imposition of a longer term, not because of what the offender has done, but because of what the offender may do in the future.18

[40]Although Ward predates the Act, the Court of Appeal confirmed in R v Piper

that the approach remains current:19

It cannot be denied that it has long been considered proper for a court, when dealing with the class of offender we are discussing to enlarge the period of confinement beyond that which it would give the offender had he not had a history of persistent offending and were it not thought necessary to protect the public from his depredations.

[41]              The Ward principle is concerned with “incapacitation”—that is taking offenders out of circulation or otherwise putting constraints upon their freedom so that their opportunities for offending are limited or removed.20 It is typically reflected in an uplift for previous convictions but as Adams on Criminal Law notes:21

Where the offender poses a particularly high risk of reoffending, the court may impose a longer sentence than would result merely from the uplift for previous

17     R v Ward [1976] 1 NZLR 588 (CA).

18     R v Rongonui CA321/00, 9 May 2001 at [44]. See also R v Chow CA347/01, 14 February 2002 at [16].

19     R v Piper CA345/05, 12 September 2006 at [9], citing to R v Ward, above n 17, at 591.

20     See Mathew Downs (ed) Adams on Criminal Law—Sentencing (online ed, Thomson Reuters) at [SAC4].

21     At [SAC4(a)].

convictions that would otherwise be appropriate, in order to protect the community.

[42]              Within the Act, the principle receives its voice in s 7(1)(g) which identifies that one of the purposes for which a court may sentence an offender is to protect the community from the offender.

[43]              Nevertheless, as observed in R v Piper,22 the sentence imposed must still bear some relation to the intrinsic nature of the offence and the gravity of the crime. Otherwise, as observed in Ward itself the “protection of the public … can all too easily be seen as an additional punishment for past offences”. A reasonable relationship to the penalty justified by the gravity of the offence, must therefore be maintained, with prevention balanced against that gravity.23 This balancing exercise makes for nuanced judgment calls.

[44]              One High Court authority suggests that the Ward principle can be used to justify a longer sentence than would otherwise be appropriate in order to make a programme of treatment available to the offender, thus protecting the public by reducing his or her risk of offending.24 The sentencing Judge obviously had something similar in mind. Adams is however critical of such an approach, noting:25

This is contrary to Court of Appeal authority. The Ward principle is connected with incapacitation; it is inappropriate to lengthen sentences for rehabilitative purposes: see R v Barrett.

[45]              In this case the persistence of the appellant’s previous offending (of an equivalent and related kind) certainly engaged the incapacitation principle. Given the particularly high risk of reoffending as recognised in the PAC report, it was open also to impose “a longer sentence than would result merely from the uplift for previous convictions”.26 However, any such uplift must be proportionate to the sentence

22  R v Piper, above n 19, at [9], quoting R v Ward, above n 17, citing R v Casey [1931] NZLR 594 per Sir Michael Myers CJ.

23     R v Ward, above n 17, at 591. The uplift for previous offending in that case resulted in a custodial a sentence significantly longer than would otherwise have been justified. The Court of Appeal reduced the sentence on appeal, keeping in mind the gravity of the offence and an appropriate allowance for the preventive element.

24 R v M HC Auckland CRI-2010-004-5197, 20 July 2010.

25 Adams, above n 20, at [SA7.06] (citation omitted).

26 Adams, above n 20, at [SAC4].

imposed for the prior offending.27 At anything more than around 30 per cent of the adjusted starting point, I consider the relationship with the intrinsic nature of this particular offending becomes unduly strained.28 That is the uplift I adopt.

Offending on release conditions

[46]              At the time of the offending, Mr Tudor was subject to release conditions for charges of wilful damage and contravening a protection order involving the same victim. As the Court of Appeal identified in Robertson v R, offending while subject to release conditions may be taken into account as an aggravating factor.29

[47]              The appellant submits that an uplift of around five per cent would be appropriate in this respect. I do not consider that this adequately captures the importance of this aggravating feature, particularly as these conditions were imposed in respect of offending against the same victim. I consider an uplift of 20 per cent appropriate. Albeit that the offending is significantly less serious, there are similarities with the Court of Appeal’s decision in Lavea v R, where an uplift of 20 per cent was similarly identified—in particular, the proximity of the offending to release, the need for deterrence and the need for protection (of the victim in particular) from further offending.30

Guilty pleas

[48]              Both counsel accept Mr Tudor’s entitlement to a discount of 25 per cent for guilty pleas. These were entered at the first available opportunity.

Summary

[49]              On the basis indicated, an orthodox approach to sentencing would, in my view, have resulted in an adjusted starting point of 13 months’ imprisonment and net uplifts of 25 per cent. The end result would therefore be a sentence of 16 months’

27 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [41].

28 See Ralph v Police [2023] NZHC 2353; Smith v Police [2013] NZHC 3406; Bigham-Hill v R  [2019] NZHC 753; and Ripia v R [2011] NZCA 101 for cases where similar uplifts of between 32 and 44 per cent for previous offending were upheld on appeal.

29 Robertson v R, above n 11, at [79].

30 Lavea v R, above n 12.

imprisonment (rounded down by one week). I recognise this as stern but necessarily so.

Is appellate intervention justified?

[50]              Reluctantly, I consider that it is. The difference between the sentence imposed and my indicated sentence on a more orthodox approach is 11 months or 40 per cent of the original sentence. As Mr Osama says, to arrive at a sentence of the length imposed by the Judge, a starting point of something in the order of 26 to 28 months imprisonment would be necessary, that is between 72 and 77 per cent of the statutory maximum of three years’ imprisonment. To do so, s 8(d) of the Act would need to be animated—the principle that the Court must impose a penalty near the maximum if the offending is near to the most serious of cases from which that penalty is prescribed.

[51]              Although a serious breach of the protection order, it would, in my view, be difficult to describe the appellant’s offending in this way. Putting aside the damage to the house (separately accounted for), the conduct for which he was being sentenced was verbal abuse over the phone in breach of a protection order. It would not ordinarily have justified a starting point in the 26 to 28 month range.

[52]              I accept that, in terms of s 7 of the Act, virtually all the identified sentencing purposes were engaged.31 But the Judge’s attempt to use the sentencing process for rehabilitative purposes in the way he did is clearly problematic on the authorities which appear resistant to judicial attempts to save offenders from themselves, even if in so doing there may be a dividend for society generally.

[53]              Moreover, the general desirability of consistency in sentencing in my view required a more orthodox approach, which, when applied, delivers a materially different result.32

[54]              I am obliged therefore to allow the appeal. I do so however with very little enthusiasm and with the hope that Mr Tudor understands that, absent meaningful

31     Excluding deterrence which, as the Judge acknowledged, seems to have been unsuccessful in the past.

32     Sentencing Act, s 8(e).

attempts to deal with his addiction, he can now be considered to have completely exhausted the well of judicial goodwill.

Result

[55]              I allow the appeal and substitute for the sentence of two years and three months’ imprisonment, a sentence of one year and four months’ imprisonment.

[56]              Because the sentence total is under two years' imprisonment, the standard release conditions will apply, as well as the following special release conditions:

(a)Mr Tudor is to attend an assessment for alcohol and drug treatment as directed by a probation officer and to attend and complete any counselling, treatment or programme as recommended by the assessment and as directed by and to the satisfaction of a probation officer.

(b)Mr Tudor will not associate with his mother without the prior written approval of a probation officer.

Muir J