Tuwairua v Police

[2020] NZHC 3376

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000040

[2020] NZHC 3376

BETWEEN

LIONEL JAMES APANUI TUWAIRUA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 December 2020
Appearances:	D C McCaskill for Appellant C J Bernhardt for Respondent
Judgment:	17 December 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 17 December 2020 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date  17 December 2020

Introduction

[1]    Lionel Tuwairua pleaded guilty to one charge of breaching a protection order. He   was   sentenced   by   Judge   Turner   to    nine   months’   imprisonment   on    3 November 2020.1 Mr Tuwairua appeals that sentence on the basis it was manifestly excessive.

1      Police v Tuwairua [2020] NZDC 22867.

TUWAIRUA v NEW ZEALAND POLICE [2020] NZHC 3376 [17 December 2020]

Facts

[2]    Mr Tuwairua and the victim were previously in  a  relationship,  and  have one child together.  In  February 2013 a final  protection order was issued against  Mr Tuwairua in favour of the victim.

[3]    On 1 October 2020, Mr Tuwairua contacted the victim on Facebook Messenger about their child. The victim told him to stop messaging her. Mr Tuwairua continued to message the victim frequently over the next two days in increasingly derogatory terms, despite her repeatedly telling him to stop.

District Court decision

[4]    Judge Turner considered the communications were unwarranted, abusive and distressing to the victim and her family. He noted this was Mr Tuwairua’s 13th breach of the protection order since it was issued in 2013. Mr Tuwairua was sentenced to intensive supervision for the most recent breach in September 2019, then a very short time later was sentenced to imprisonment for behaving threateningly towards his mother. He had numerous other convictions for violence between 2004 and 2020, including family harm violence against the same victim.

[5]    The Judge disagreed with the assessment  in  the  pre-sentence  report  that Mr Tuwairua posed a moderate risk of re-offending and a moderate risk of harming others. He considered Mr Tuwairua acts out of a sense of entitlement, and becomes abusive when he does not get his way. He found it was necessary to impose a deterrent sentence.

[6]    Judge Turner adopted a starting point of six months for the breach of protection order. He uplifted that by six months for the previous breaches of the order, noting such was necessary for deterrence purposes. For Mr Tuwairua’s guilty plea, the Judge allowed a full 25 per cent discount. He then noted:2

2 At [12].

You have expressed some remorse and insight into your behaviour. It is difficult to know whether that it is [sic] genuine, difficult because over a period of seven years you have continued to breach the sentence. I take that into account.

[7]    The end sentence imposed was nine months’ imprisonment. The Judge did not allow leave to apply for a substituted sentence because he considered such a sentence would not meet the relevant purposes and principles  of sentencing, and because    Mr Tuwairua had shown a propensity to persistently offend against the victim.

Principles on appeal

[8]    Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower Court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5 The focus on appeal is the end sentence, rather than the process by which the sentence was reached.6

Submissions

Appellant’s submissions

[9]    Mr McCaskill, for Mr Tuwairua, submits the starting point of six months’ imprisonment was too high. He recognises the messages sent by Mr Tuwairua were repetitive but submits their content was not threatening, and that an appropriate starting point would be up to three months.

3      Criminal Procedure Act 2011, ss 250(2) and 250(3).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

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

6      Islam v R [2020] NZCA 140 at [32].

[10]   Mr McCaskill accepts that Mr Tuwairua has numerous previous convictions, including 12 for previous breaches of the protection order, but submits the uplift of 100 per cent was clearly excessive.  He suggests the uplift should be no more than  50 per cent. He further argues that if the starting point included recognition of the vulnerability of the victim, then that vulnerability may have been double counted in the uplift for the previous breaches.

[11]   Mr McCaskill submits the Judge should have allowed a further discount for remorse, insight and prospects of rehabilitation. He says that Mr Tuwairua has a new partner and a genuine desire to change. The Judge stated that remorse and insight had been taken into account, but did not specify how; Mr McCaskill submits there should be an additional discount of 10 per cent for those matters.

[12]   Finally, Mr McCaskill notes the recommendation in the pre-sentence report was for a sentence of intensive supervision. He submits Mr Tuwairua is motivated to undergo such a sentence and has benefitted from his recent intensive supervision sentence. Mr McCaskill contends intensive supervision would help Mr Tuwairua to continue to abstain from drug use, ameliorate the effects of his anti-social personality disorder and assist in his rehabilitation and reintegration.

Respondent’s submissions

[13]   Mr Bernhardt, for the Police, submits the starting point was generous. He refers to a number of cases in support of that submission, the most relevant of which is Coory v Police.7 In that case the appellant sent 13 unwanted messages to the victim and on one occasion entered her home, verbally abusing her and refusing to leave. He had six convictions for breaching a protection order, as well as other convictions for violence or property damage against the victim. He was assessed as presenting a medium to high risk of reoffending. On appeal, Chisholm J held the starting point of 18 months was “probably at the top of the range that was available … [but] not outside that range”.8 His Honour also did not disturb the uplift of six months for previous

7      Coory v Police HC Dunedin CRI-2010-412-37, 25 November 2010.

8 At [19].

convictions.    Mr Bernhardt submits that in light  of  Coory, the  starting point  of  six months could well have been higher.

[14]   Mr Bernhardt adds that the uplift of six months was also generous in light of Mr Tuwairua’s history of breaching the protection order, as well as his multiple convictions for assault and threatening behaviour, many of which occurred in a family context. Mr Bernhardt accepts that an uplift must be proportionate to the starting point but, given his submission that the starting point was inadequate, he argues the result was not manifestly excessive.

[15]   Mr Bernhardt does not accept that Mr Tuwairua should have received a discount for remorse, saying there  is  no  tangible  evidence  of  remorse.  Indeed, Mr Tuwairua’s continued non-compliance is indicative of a lack of insight into his offending.

[16]   In response to the submission that intensive supervision should have been imposed, Mr Bernhardt submits the Court can have no confidence Mr Tuwairua would comply with a community-based sentence, pointing to his 22 convictions for breaching sentences or failing to answer bail, and the 51 offences he has committed whilst subject to bail.

[17]   He also cites R v Nathan, in which the appellant sent a number of messages and a letter to the victim in breach of his protection order.9 He had five convictions for breaching the same order. The Court of Appeal held the sentencing Judge should have imposed a custodial sentence but decided on the facts of the case not to substitute the sentence of community work and supervision. However, the Court noted that repeat breaches of protection orders ought normally to be met by short terms of imprisonment.10 Mr Bernhardt also notes that case was decided before Parliament raised the maximum penalty from two to three years’ imprisonment, indicating that breaches of protection orders should be treated seriously.11

9      R v Nathan CA209/06, 29 November 2006.

10 At [28].

11     Iyer v Police [2017] NZHC 353 at [11].

Analysis

[18]   I have read the screenshots of the messages sent between Mr Tuwairua and the victim. Though Mr Tuwairua’s initial motivation appeared to be a desire to speak to the victim, it is clear from the victim’s replies that she did not want that contact. Her first recorded text message says “stop fuking txtn me”. Mr Tuwairua continued to text the victim frequently over the next two days, as well as attempting to video call her multiple times and leaving her about 30 recorded voice messages.

[19]   As the victim continued to tell him to leave her alone, Mr Tuwairua became angry, threatening to kill himself and becoming increasingly abusive towards the victim. Throughout the messages that can be read he calls her a “bitch”, “cunt”, “drug dealer mutt”, “slut” and “horse”.12 He does not appear to make any direct threats to the victim but the tone and content of the messages are abusive and insulting, and the victim made it very clear they were unwanted.

[20]   In addition to the cases cited by Mr Bernhardt, the following cases are relevant in assessing the appropriate starting point:

(a)Mitchell v R: the appellant left four messages on the victim’s voicemail which were abusive and threatening.13 The Court of Appeal held the starting point of eight months was “towards the top of the range”.14

(b)Morris-Stewart v Police: the appellant sent numerous text messages to the victim over one day and night.15 They included abusive content and threats to come to the victim’s house, “rearrange [her] fat face” and stab her. Wylie J considered the appropriate starting point was 12 months’ imprisonment.

[21]   In light of those authorities I agree with Mr Bernhardt that a six month starting point was generous. Mr Tuwairua sent the victim a high volume of abusive messages

12     I was not provided with a transcript of the voice messages.

13     Mitchell v R [2015] NZCA 442, (2015) 30 FRNZ 534.

14 At [25].

15     Morris-Stewart v Police [2016] NZHC 1030.

over a period of two days, despite her consistent responses that she did not want to communicate with him. He was well aware that his behaviour was unwanted and unlawful, demonstrated by his previous convictions for breaching the same protection order. The starting point adopted by the Judge could well be seen as lenient.

[22]   In that context, I am not satisfied the uplift for previous convictions has led to a manifestly excessive result. Mr Tuwairua’s 12 previous breaches of the protection order, as well as a number of other family violence convictions, warranted a significant uplift to meet the principles of accountability, denunciation and deterrence. Ordinarily, an uplift of 100 per cent of the starting point would be difficult to square with the principle of proportionality.16 An uplift of 50 per cent would normally be ample. However, given the low starting point, and the significant history of both family violence and breaches of the protection order,17 I am satisfied the resulting sentence is still within range.

[23]   I do not accept the submission that the Judge may have double-counted vulnerability of the victim. There is no evidence in his sentencing notes that that occurred, and in any event, the uplifted starting point was appropriate.

[24]   The pre-sentence report makes the following comments about Mr Tuwairua’s remorse:

Mr Tuwairua is accepting of his offending history and takes responsibility for his actions. During his pre-sentence interview he expressed deep remorse for how his behaviour impacted his victim. He accepts that having official oversight in the Community would be beneficial for him. As he spoke about the support from his now partner, it was apparent that his desire to change is genuine.

[25]   Although the pre-sentence report suggests that Mr Tuwairua was remorseful, and was motivated to change, the Judge expressed doubt about the genuineness of his remorse given his repeated breaches of the protection  order  over  a  period  of  seven years.

16     See Tiplady-Koroheke v R [2012] NZCA 477 at [24].

17     In addition to the breaches of protection orders there have been 19 family violence incidents in the preceding 10 years, some of which involved weapons.

[26]   I am similarly sceptical about the genuineness of Mr Tuwairua’s remorse and willingness to change. There were also other statements in the pre-sentence report that suggested he showed less insight, including reference to his “sense of entitlement” and his failure to complete drug and alcohol counselling despite much of his offending being linked to his drug use. Furthermore, he has had many opportunities to change in the past but has continued to offend  against  the same victim.   It may be that    Mr Tuwairua’s new relationship has indeed prompted him to feel genuinely remorseful and willing to better himself, but there is insufficient evidence of that before the Court to convince me to adjust the District Court Judge’s sentence.

[27]   I do not believe the end sentence of nine months’ imprisonment is manifestly excessive when regard is had to the strong need for deterrence, denunciation, accountability and protection of the victim in this case.

[28]   For the same reason, I do not consider the Judge was wrong to decline a sentence of intensive supervision. Mr Tuwairua’s repeated breaches of the protection order show that a more deterrent sentence is required, particularly when Mr Tuwairua has previously been sentenced to intensive supervision for breaching his protection order and that was insufficient to deter him from reoffending. In this regard I note the Court of Appeal’s statement that, for repeated breaches of protection orders, a short term of imprisonment will generally be appropriate, and I consider it is appropriate in this case.18

Conclusion

[29]   The sentence of nine months’ imprisonment was not manifestly excessive, and the appeal is dismissed.

Solicitors:
Crown Solicitor, Dunedin

Copy To:

D C McCaskill, Barrister, Dunedin

18     Nathan, above n 9, at [28].