Vujcich v Police
[2019] NZHC 2482
•30 September 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-406
[2019] NZHC 2482
BETWEEN ANTON IVAN VUJCICH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 September 2019 Appearances:
T Beach for Appellant
K Guilford for Respondent
Judgment:
30 September 2019
(ORAL) JUDGMENT OF LANG J
[on appeal against sentence]
VUJCICH v NEW ZEALAND POLICE [2019] NZHC 2482 [30 September 2019]
[1] Mr Vujcich pleaded guilty in the District Court to two charges of breaching a protection order.1 On 4 September 2019 Judge Sainsbury sentenced him to seven and a half months home detention.2
[2] Mr Vujcich appeals against sentence on the basis that the end sentence was manifestly excessive. He says this occurred because the Judge adopted a starting point on one of the charges that was too high and then added an uplift on the other charge that was excessive. Mr Vujcich also contends the Judge failed to give him due credit for taking rehabilitative steps prior to sentencing.
The facts
[3] The facts were contained in a summary of facts produced by the police in the District Court. I take Mr Vujcich to have agreed to the contents of the summary before he entered his guilty pleas. The summary records that a final protection order was issued against Mr Vujcich in the Waitakere Family Court on 14 December 2017. The order extended protection to Mr Vujcich’s former partner and their two children.
[4] The first charge was laid as a result of an incident that occurred on 28 June 2018. The incident occurred against a backdrop of proceedings in the Family Court in which Mr Vujcich was endeavouring to gain increased contact with his children. A lawyer had been appointed to represent the interests of the children in the Family Court proceedings.
[5] On 28 June 2018 Mr Vujcich sent an email to both the lawyer for the children and his former partner’s solicitor. The email was accompanied by a digital attachment containing a photograph of the naked torso of his former partner. The email contained the following statements:
I will now start sending all the naked photos and sex emails from your client to me and put them in newspapers.
…
You have 24 hours to make [the victim of the offending] respond.
1 Domestic Violence Act 1995, ss 19(1)(d) and (2)(e).
2 Police v Vujcich [2019] NZDC 17444.
…
You think I’m joking? Find attached photo from [the victim] to me. You guys have been asked to stop the roadblocks from the psychopath, you’ve now got 24 hours to do it.
[6] When the police investigated the complaint that was made as a result of this incident, they searched electronic devices found in Mr Vujcich’s home. This led to the discovery that Mr Vujcich had established an Instagram profile page under a name having no association with his own. Instagram is a social networking service that permits those who subscribe to the service to post photographs and video clips on the site. Mr Vujcich then began following his former partner’s Instagram profile. On 15 July 2018 Mr Vujcich sent her an Instagram message reading as follows:
I like your Instagram posts a lot. Plus your [sic] really hot. My name is Mark I’m a fireman in Auckland at Takapuna. We should go for a meal or date sometime my number is [027……] if you want to get to know me.
[7] Mr Vujcich subsequently sent several additional Instagram messages to his former partner maintaining the deception that he was a fireman named Mark. The summary does not record whether Mr Vujcich’s former partner read or acknowledged the messages, or whether she ever became aware they had been posted by Mr Vujcich.
The Judge’s decision
[8] The Judge took a starting point of 18 months imprisonment on the charge relating to the email Mr Vujcich had sent to the two lawyers. He then added an uplift of six months to reflect the second charge relating to the posts to the Instagram account. From the resulting starting point of two years imprisonment, the Judge gave Mr Vujcich four months credit to reflect previous good character. This reduction was made as a result of numerous references Mr Vujcich had provided at sentencing from persons in the community who considered him to be a person of otherwise impeccable character.
[9] The Judge then allowed a discount of five months, or 25 per cent, to reflect guilty pleas. This resulted in an end sentence of 15 months imprisonment. The Judge converted this to a sentence of seven and a half months home detention.
Was the starting point too high?
[10] In setting the starting point the Judge noted the authorities referred to him by Mr Beach on Mr Vujcich’s behalf. In particular, Mr Beach referred to Prince v Police in which Cooke J reviewed recent sentences imposed on charges of breaching a protection order.3 Cooke J considered that in cases involving non-violent offending where the offender has a history of breaching protection orders, the starting point will generally begin from around four months imprisonment. It will then increase depending on the circumstances of the offending and previous convictions.
[11] The Judge noted, however, that other sentencing decisions were only of limited weight because of the unusual nature of Mr Vujcich’s offending. He therefore considered the starting point should be governed by the culpability of the offending as assessed having reference to aggravating factors. The first factor identified by the Judge was that Mr Vujcich had sent an intimate image to third parties. He considered this to be serious because of the ease with which digital media can be transferred. The Judge also noted that, in cases where charges have been laid under the Harmful Digital Communications Act 2015, starting points of imprisonment have been imposed.4
[12] The Judge rejected a submission for Mr Vujcich that the culpability of offending was reduced by the fact that the email was only sent to two parties. He considered the humiliation for the complainant lay in the fact that persons who were effectively strangers had been sent the photographs. In addition, the Judge considered the content of the email to be threatening in nature. He described this in the following terms:5
[17] Whether there are any other photos, whether there are any other texts is really beside the point. It is a direct threat, effectively saying: “I’m going to do this. I’m going to humiliate you. You can live with the horror of knowing that this could be done by me at any time and you can’t stop me.” That is serious in my view. That is akin to the offending of sending I’m [sic] intimate images, where the Courts have taken a very strong view against it, even for a first offence.
3 Prince v Police [2019] NZHC 1742.
4 Police v Kelly [2017] NZDC 12912; Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147;
Police v Tamihana [2016] NZDC 6749.
5 Police v Vujcich, above n 2.
[13] The Judge also considered the offending was rendered more serious by the fact that it amounted to an attempt by Mr Vujcich to influence the proceedings in the Family Court. He considered it was designed to place pressure on the two lawyers to comply with Mr Vujcich’s demands and that Mr Vujcich was effectively using the threats and the photographic image to obtain leverage over those parties. The Judge considered that offending such as this struck at the heart of the justice system, and that lawyers representing parties in the Family Court need to be able to undertake their difficult roles free from the fear of this type of inappropriate attack.
[14] Finally, the Judge noted that protection orders are not made lightly and are made for good reason. The seriousness of the offending amounted to deliberate attempts to bypass or overcome orders made for the protection of Mr Vujcich’s former partner. The Judge acknowledged the offending did not involve actual violence. He considered that it was nevertheless calculated offending designed to humiliate and terrify his former partner, and to undermine the Family Court system. These factors led the Judge to assess the starting point of 18 months imprisonment.
[15] Mr Beach contends the starting point was manifestly excessive when the starting points imposed in other cases are considered. Care needs to be taken in this context because the maximum penalty for this offence was increased on 25 September 2013 from two years to three years imprisonment. It is not entirely clear from some of the other earlier cases whether the charges were laid when the earlier maximum sentence was in place. Nevertheless, Mr Beach has referred me to several cases involving non-violent conduct that breached the terms of a protection order.6 He submits that the starting point here should have been well below that selected by the Judge.
[16] In Morris-Stewart v New Zealand Police, Wylie J noted that there is no tariff or guideline case for breaching a protection order.7 He observed that the Court of Appeal has nevertheless stated that the courts should uphold the integrity of protection orders and respond sternly to those who flout their force and effect. This is because
R v Nathan CA209/06, 29 November 2006; Mitchell v R [2015] NZCA 442, (2015) 30 FRNZ 534;
Bartlett v Police [2016] NZHC 850; Irvine v Police [2017] NZHC 3085; Turner v Police [2017]
NZHC 1113; Robinson v Police [2019] NZHC 1412; G v Police [2019] NZHC 411.
7 Morris-Stewart v Police [2016] NZHC 1030.
such orders are intended to ensure that the recipient of the protection order is secure and inviolate. For that reason repeated breaches will result in a condign sentencing response. Where there has been repeat offending over a brief period of time, a short term of imprisonment is the proper response.
[17] I consider that all of the aggravating factors that the Judge identified were properly taken into account. Mr Beach challenges in particular the fact that the Judge appeared to have regarded the offending as amounting to a form of blackmail and that the Judge gave undue weight to his view that Mr Vujcich could well have been prosecuted for other and more serious offences.
[18] I do not accept that this is the case because the Judge expressly said that he was not sentencing Mr Vujcich on the basis that he had committed the other offences. Nevertheless, I consider the fact that the offending was designed to provide Mr Vujcich with a favourable outcome in Family Court proceedings to be a relevant factor. Furthermore, the fact that Mr Vujcich was prepared to send a compromising photograph of his partner to professionals who were working in the Family Court system is clearly, in my view, an aggravating factor. There is also the added feature that the email contained an express threat to send photographs, including photographs of his partner involved in sexual acts, to newspapers if his demands were not met. I therefore consider that the offending had several significantly aggravating factors and that a starting point of four to six months imprisonment would not adequately reflect the culpability of these.
[19] In Irvine v Police, the appellant had telephoned his former partner on 23 occasions over a two day period.8 He had then gone to her address one day later and banged on the lounge window of the address before leaving the property. The conduct occurred within days of a protection order having been made in favour of the appellant’s former partner. On appeal, Dunningham J considered that a starting point of ten months imprisonment, although at the higher end of the available range, was nevertheless not outside it.
8 Irvine v Police, above n 6.
[20] In Morris-Stewart, a starting point of 12 months imprisonment was selected on a single charge of breaching a protection order and this was upheld on appeal to this Court. In that case the appellant had sent his former partner numerous text messages over a period of a day. He had a history of family violence charges against the victim and also a history of breaching protection orders. Furthermore, the content of the text messages was threatening and abusive.
[21] In Mataiti v Police, the appellant had pleaded guilty to two charges of breaching a protection order against his former partner.9 The charges reflected two incidents that had occurred several months apart. On each occasion the appellant had become verbally abusive towards the victim and had refused to leave her property when asked. He also had a series of relevant previous convictions including three convictions for breaching a protection order. On appeal, Duffy J considered that a starting point of 12 months imprisonment on each charge was too high and that cumulative starting points of eight months for each of the two charges was appropriate.
[22] Even allowing for the serious nature of the present offending, I consider that a starting point of 18 months imprisonment on the first charge was too high particularly given the fact that the offending involved a single incident and Mr Vujcich has no previous history of breaching protection orders or indeed of breaching any other kind of orders or sentences imposed by the Court. I do not consider a starting point of more than 12 months imprisonment could be justified.
Uplift
[23] I accept that the uplift involving the establishment of the Instagram account and the posting of messages on that account warranted a discrete uplift. There are, however, several factors about that offending that lead me to conclude an uplift of six months was manifestly excessive.
[24] First, there is no suggestion in the summary that the complainant either read the messages posted by Mr Vujcich, or that she connected him with them. There is therefore no element of harassment as would ordinarily be the case in a charge of this
9 Mataiti v Police [2014] NZHC 1675.
type. Furthermore, although this offending occurred after the earlier incident, it did not occur whilst Mr Vujcich was on bail for the earlier offending. He was arrested and charged with both offences at the same time.
[25] Having regard to those factors I do not consider an uplift of more than three months was justified.
[26] This means I consider a starting point of 15 months imprisonment was appropriate before taking into account mitigating factors. Allowing a proportionate adjustment of three months to reflect Mr Vujcich’s previous good character, a sentence of 12 months imprisonment results before taking into account guilty pleas.
[27] I do not consider any additional discount was warranted to reflect the fact that Mr Vujcich had completed a “Stopping Violence” course before being sentenced. I consider the discount to reflect previous good character adequately reflects any recognition to be taken of this fact.
[28] This leads to the deduction of three months, or 25 per cent, to reflect guilty pleas, producing an end sentence of nine months imprisonment. There is no challenge by the respondent to the Judge’s conclusion that a sentence of home detention was appropriate in the circumstances of the present case. Taking the sentence of nine months imprisonment, I apply the usual conversion factor of 50 per cent, thereby resulting in an end sentence of four and a half months home detention.
Result
[29] The appeal against sentence is accordingly allowed. The sentence of seven and a half months home detention is quashed. In its place I impose a sentence of four and a half months home detention on the same conditions as the existing sentence.
Lang J
Solicitors:
Crown Solicitor, Auckland Counsel:
T Beach, Barrister, Auckland
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