Tutbury v Police
[2013] NZHC 2960
•8 November 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000287 [2013] NZHC 2960
BETWEEN COLIN TUTBURY Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 4 November 2013
Counsel: J Schlebusch for Appellant
R K Thomson for Respondent
Judgment: 8 November 2013
JUDGMENT OF ASHER J
This judgment was delivered by me on 8 November 2013 at 4.00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Meredith Connell, Auckland.
TUTBURY v NZ POLICE [2013] NZHC 2960 [8 November 2013]
Introduction
[1] This is an appeal by Mr Tutbury against the sentence imposed upon him in the North Shore District Court on 17 September 2013.
[2] Mr Tutbury pleaded guilty to three counts: doing a threatening act; contravening a protection order; and male assaults female. Judge Collins fixed a starting point for all the offending of in total 13 months’ imprisonment. He declined to impose home detention or community detention. He gave a discount of one month because of the compliance with bail term conditions over a period of time, and a further discount of 25 per cent for guilty pleas, reducing the end sentence to nine months’ imprisonment. Mr Tutbury was to be subject to standard special post- release conditions, to apply for six months after the sentence expiry date.
[3] It is submitted by Mr Schlebusch for Mr Tutbury that the starting point was too high. He submitted that an appropriate starting point for the male assaults female and breach of protection order offending should have been three to six months, with an uplift of one to three months for the threatening act. In other words as I read his submission, he suggests that the maximum starting point that could have been properly imposed was nine months’ imprisonment. He took no issue with the discount, although he did submit that the Judge placed undue emphasis on negative issues in the pre-sentence report. He submitted that viewed in totality a fair sentence would have been a community based sentence.
Facts
[4] The facts are contained in two separate summaries of facts. One relates to the threatening acts charge and also included the related charge of unlawfully taking a motor vehicle. The second summary relates to the contravention of the protection order and male assaults female charges.
[5] The unlawful taking of a motor vehicle charge was not dealt with on sentencing and is to be considered in the District Court in Auckland in due course. This is unfortunate. It is preferable when a number of charges arise out of a single incident or a series of closely related incidents, that the sentencing for those counts
takes place at one time so that culpability can be considered in totality. I now have to consider culpability not taking into account the unlawful taking of a motor vehicle, and at some later date a Judge is going to have to consider that unlawful taking of a motor vehicle culpability on its own, but will face the difficulty that in assessing totality, the penalties on these counts will have to be considered.1
[6] On the threatening acts count, the summary discloses that Mr Tutbury and the victim had been in a relationship for two years and had lived together at an address. The Police attended that address because of an incident between Mr Tutbury and the victim and issued a Police Safety Order on 28 January 2013 for a period of five days. This prohibited the defendant from approaching or contacting the victim in any way.
[7] The next evening at about 6.20 pm on 29 January 2013, while the order was in force, Mr Tutbury phoned the victim and said “let the games begin, I’m going to come back as soon as the PSO is finished and burn your house down”. He also made contact via text messages and phone calls at about the same time in contravention of the Police Safety Order. The victim was sufficiently intimidated by this threat to seek alternative accommodation.
[8] As a response in part to this incident, on 30 January 2013 the North Shore
Family Court issued a protection order in favour of the victim against Mr Tutbury.
[9] On Thursday, 25 April 2013 the victim was walking down the road when Mr Tutbury drove towards her. He stopped beside her and told her to get into the car. The victim refused and told him to go away. Members of the public were sufficiently concerned to stop to assist. Mr Tutbury then drove off.
[10] At 4.30 pm on Sunday, 28 April 2013 the victim received a phone call from Mr Tutbury asking where she was. She hung up. At 7.30 pm that day the victim arrived home. When she did she found Mr Tutbury waiting for her at the house. She turned to leave but Mr Tutbury followed her down the driveway threatening her. He
then slapped her once on the face. A neighbour came out to assist and Mr Tutbury
1 Ludlow v R [2013] NZCA 196; R v Clunie [2013] NZHC 2689.
ran off. As a result of the assault the victim suffered a bloodshot eye, a cut lip and a sore face.
Approach
[11] There is no tariff case in relation to this sort of domestic offending. The common approach of fixing a starting point in sentencing for multiple offending by choosing the most serious count, fixing a starting point for that most serious count, and then increasing that sentence taking into account totality for the other offending, is not easy to apply in this case. This is because no one count is obviously more serious than the other. It could be suggested that the most serious overall is the breach of the protection order, in that it was deliberately breached on three occasions, and the third involved a serious assault. However, on a per incident basis it could be said that the assault count is the most serious. While it involved a slap it caused injuries consistent with a very hard impact to the face. It can also be observed that the threatening act charge was a serious one of its type, in that there was a threat to burn down the house which the victim occupied with the consequent real threat to her safety and that of her family.
[12] Judge Collins approached the starting point by looking at the male assaults female and breach of the protection order counts and fixing a starting point of nine months (taking into account the fact that Mr Tutbury was already on bail), and then adding an uplift of four months for the threatening charge to reach the 13 month starting point. In terms of methodology that was a perfectly reasonable way to approach the sentencing exercise.
The starting point
[13] Mr Schlebusch in his excellent submissions made the fair point that if the assault count had just been considered on its own and without consideration of Mr Tutbury’s past record, it would have warranted only a community service-type sentence. While I accept that is so, the submission demonstrates the difficulty in considering the charges in isolation. In terms of assessing culpability these charges together show a continuum of intimidation which has an overlay of violence and defiance of Police or Court directions.
[14] I bear in mind the maximum penalties on each of the three counts. For male assaults female and contravening a protection order, they are two years’ imprisonment. For doing a threatening act, it is three years’ imprisonment.
[15] I have been referred to quite a number of sentencing decisions by counsel. It is difficult to find cases in this area which have close similarity given the variations that arise in domestic situations. I do note, however, two cases where starting points that could be regarded as comparable and consistent with those of Judge Collins were applied. First, in Te Tau v Police2 there was a final protection order in place which had issued three years earlier. The defendant arrived at the victim’s home, pushed her back several times by pushing her forearm and her chest area. He
grabbed her once by the neck to push her back. He held her by the arm at the front door and she fell backwards. He then left the address. The victim’s injury was a small cut to the right elbow. A starting point that had been imposed in the District Court of one years’ imprisonment for breach of the protection order and nine months for the assault charge was reduced to a one years’ imprisonment starting point overall.
[16] Second, in Martin v Police3 after a protection order, which had been issued
14 years previously, there was a confrontation between the victim and the defendant. The defendant became angry, smashed a number of household items and threatened to kill the victim. There was a knife present but the victim was not threatened with the knife. There was a certain amount of pushing and pulling resulting in the victim receiving minor bruising to her arms.
[17] A starting point of one years’ imprisonment was fixed in the District Court. The High Court concluded that the starting point of 12 months’ imprisonment was too high. The Judge fixed an appropriate starting point at nine months’
imprisonment.
2 Te Tau v Police [2012] NZHC 1068.
3 Martin v Police HC Rotorua CRI-2007-470-24, 11 July 2007.
[18] Mr Schlebusch has referred me to a number of other authorities and made the submission from the bar that in relation to the reality of District Court sentencing, the starting point was harsh.
[19] I consider the following matters relevant in assessing culpability looking at all three offences in the round:
The threatening count was in breach of a Police Safety Order and the assault in breach of a protection order. The protection order itself was breached on three occasions. The actions therefore show what can only be construed as a deliberate defiance of authorities and an
intentional disregard of restrictions imposed.
The threatening count was relatively serious in terms of the actual threat (burning down the victim’s residence) and it was taken
seriously.
Although it could not necessarily be described as premeditation, there was a disturbing amount of deliberateness in the continuous breaches
of the protection order over the 25–28 April period.
When it is considered in terms of the range of possible assault charges, male assaults female is a low range assault count. Of its type of assault this was moderately serious as it caused some real injury
(although not so severe it required medical attention).
When the assault took place Mr Tutbury was on bail for the threatening charge and breached a condition of that bail in
approaching the victim (as well as breaching the protection order).
[20] Doing the best assessment I can, a starting point in the area of up to 12 months’ imprisonment was warranted. A 13 month starting point taken alone in terms of assessing the culpability was severe, although not necessarily out of the range.
Personal factors
[21] However, there are further factors that must be taken into account. I now go on to consider aggravating and mitigating factors relating to Mr Tutbury personally.
[22] Mr Tutbury has a long record of prior offending. His past sentences of imprisonment relate to a variety of charges involving drugs, driving offending and possession of an offensive weapon. He was sentenced to home detention of six months in relation to that offending. He was charged with breaches of community work on at least four occasions and a number of counts of driving while disqualified. He has been convicted of failure to answer District Court bail and a range of other relatively minor offending. Most significantly he was, for a period between 2000 and 2003, convicted on no less than three occasions of contravening a protection order. On one occasion that was in association with a common assault count. He was also convicted on 24 December 2000 of failing to comply with a prohibition by an enforcement officer. In 2001 he was also convicted of male assaults female and assault on a child for which he received non-residential periodic detention.
[23] The fact is that it would seem from this record that on an earlier occasion Mr Tutbury was involved in a continuum of violent offending against a partner and defiance of protection orders. So he has done this twice. In my view, an uplift was warranted for this prior offending as an aggravating factor under s 9 of the Sentencing Act. The Judge did not increase his sentence for this aggravating personal factor and Mr Tutbury is fortunate that he did not do so. In my view an uplift of at least two months would have been appropriate. It would have been more if the prior protection offences had been more recent.
Conclusion on length of sentence
[24] Thus, in my view the starting point of 13 months, while high on its own, could have been easily reached with an add-on for prior convictions. If that add-on had been made the end starting point could have increased to as high as 14 months’ imprisonment.
[25] I then look at the mitigating factors that were applied by the Judge. Mr Schlebusch has no quarrel with those and rightly so. The one month discount because of the imposition of bail conditions was generous. There was a 24 hour curfew but it apparently lasted for only about five weeks, and there was thereafter only an evening curfew and again for a duration of approximately seven weeks. The
25 per cent discount for the plea of guilty was the maximum.
[26] The conclusion I reach therefore is that the end sentence of nine months’ imprisonment taking into account personal aggravating and mitigating factors was entirely within the range.
Home detention
[27] Judge Collins observed in relation to home detention:4
This offending involves breach of Court orders. You have an entrenched attitude to your offending, you show little enthusiasm or willingness to involve yourself in programmes to address your offending and your rehabilitation needs and, in all those circumstances, and because of the violence that you used in contravention of the Court orders, I do not believe that home detention or community detention is appropriate.
[28] I consider the Judge’s assessment to be entirely warranted on the material available. Mr Tutbury’s response to Court and Police imposed restrictions has not been good. Mr Schlebusch reported the fact that he has complied more recently with his bail conditions. That is little comfort when his record is looked at as a whole. That record is full of breaches of orders of various types. Little appears to have been learnt from the later sentence of six months’ home detention (although I accept that was for different types of charges than the present).
[29] Mr Tutbury criticised the Judge’s assessment of the pre-sentence report as unusually negative. While the report may have been a little harsh, there is no doubt that the probation officer was unimpressed by Mr Tutbury’s reaction to the offending. Mr Tutbury was quoted as expressing little remorse. It is possible that the probation officer there had more in mind his driving and alcohol and drug
offending, although that is not the natural reading of the sentence. The probation
4 Police v Tutbury DC North Shore CRI-2013-044-1160, 17 September 2013 at [11].
officer noted that Mr Tutbury was willing to complete a “Man Alive Living Without Violence” programme. It is, however, to be noted that there is no evidence that he has to this point entered any programme.
[30] There is a need to deter Mr Tutbury from further offending of this type. There was in my view no error in Judge Collins’ assessment. Indeed, I consider his conclusion that home detention was not the appropriate sentence to be correct.
Result
[31] The appeal is dismissed.
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Asher J
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