Walker v Police HC New Plymouth CRI-2011-443-046

[2011] NZHC 1996

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2011-443-046

JAMES GIBSON WALKER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 December 2011

Counsel:         P Keegan for the Appellant

S Law for the Respondent

Judgment:      12 December 2011

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:

Mr P M Keegan, Barrister, New Plymouth

Ms S Law, C & M Legal, Office of the Crown Solicitor, New Plymouth

WALKER V NEW ZEALAND POLICE HC NWP CRI-2011-443-046 12 December 2011

[1]      The appellant appeals against a sentence of 18 months imprisonment.1    He was sentenced for one offence of intentional damage.   The maximum penalty is seven years imprisonment.  There were two related offences of wilful damage with a maximum penalty of three months imprisonment.

The facts

[2]      The offences occurred at around 5:00 pm on 29 May 2011 at the appellant’s home which he shared with his wife and young son. Also present was his wife’s two daughters of another relationship and her sister.

[3]      In this case it will assist to set out most of the summary of facts to which the appellant pleaded guilty.

The defendant had consumed some legal herbal “high” and taken a number of prescribed tablets.  He decided to go out to buy a drink and asked his wife for the keys to her van.  When she refused to hand them to him as she was concerned about his behaviour, the defendant stormed into his bedroom.

The defendant’s wife and sister then got the children into the van in order to leave the address.  As his wife prepared to leave, the defendant swallowed a further handful of prescribed tablets, yelling abuse and threats at his wife.

When the defendant’s wife returned with her sister a short time later to collect nappies for one of the children, the defendant was outside building a bonfire with household items.  The defendant began yelling at them and they promptly left the address.

While inside the house the defendant had smashed a large number of items, including a TV and DVD player … and a computer ...  The defendant also damaged a number of light switches, a basin and toilet and a glass door. The house is the property of Housing New Zealand.  …

Police were called and located the defendant in the backyard, where he was stacking broken items of furniture in a pile. The defendant was visibly under the influence of drugs and was acting irrationally.  He was returned to the New Plymouth station.  He was released without charge at that time.  He was spoken to again and served a Summons several days later at a Bell Block address.

1 Police v Walker DC New Plymouth, CRI-2011-043-001789, 4 November 2011.

The defendant stated that he recalled taking a number of tablets of a prescribed medication as well as some legal herbal high, however he claimed he had no further recollection of events until he woke up in a Police cell.  He admitted to smashing a glass panel to gain entry into the house when he returning [sic] to the address the following day and found it locked up.

Personal circumstances

[4]      The appellant is aged 35.   He has seven previous convictions for wilful damage.  The maximum penalty that has been imposed on him in the past for wilful damage is a sentence of two months imprisonment, imposed for two offences, occurring on the same day, in 2006.

[5]      The current offending occurred in a domestic context.   In that regard it is relevant to note that there are three protection orders against the appellant in respect of three different women.  These are orders granted in October 2007, and September

2010 and then in June 2011 following the offending now being dealt with.   The appellant also has six convictions for various forms of assault.

[6]      Before sentencing, the Judge directed that a psychiatric report be provided.  It appears that this was sought, at least in part, because of indications – particularly from the appellant – that he suffers from a bipolar disorder.  The psychiatrist noted that the appellant is convinced that he is suffering from a bipolar disorder. And there are indications in a victim impact statement from the appellant’s former wife that he has in the past often referred to his bipolar disorder. The psychiatrist said this:

Although Mr Walker believes he is suffering from a bipolar disorder, and wants treatment with medication, he is in fact suffering from a borderline personality disorder which can be supported by medication, but the main focus of treatment would be training directed towards a better anger management and emotion regulation.

The psychiatrist had earlier noted:

He blames his partners and his mental illness for everything that is wrong in his life.

However, he also recorded, in his summary:

Mr Walker suffered a problematic youth with physical and sexual abuse, insufficient parenting, and several periods in state care.  His early addiction problems and behavioural issues culminated into a personality disorder of the borderline type.   His suicide attempts, recurrent depressive episodes, sudden  irritability,  anger  and  violence  problems,  and  the  way  that  he interacts  with  his  female  partners  all  point  to  this.    His  long  offending history, with in the last years mostly assaults on people and wilful damage of their property, also fit within that picture. Although Mr Walker states that he does not remember the current index offending, they are similar to offences he has committed previously.  A positive thing is that Mr Walker states that he is motivated to make a change in his life, and that he would like help from Taranaki Mental Health Services.

[7]      The sentencing Judge had available to him victim impact statements from the appellant’s former wife and her sister and from one other person whose property was damaged.  His former wife said, amongst other things:

My children and I own very little.  He broke everything, right down to the

toilet, so we didn’t even have a home anymore – it was unliveable.

I’m afraid to go out at night.  Since his actions I have been granted a [sic] emergency Protection Order for me and the children but still fear seeing him or him finding us.  … I feel worthless, embarrassed, and overwhelmed with guilt of what he has done.  We are living in a basement at my sister’s house.

District Court sentence

[8]      The Judge considered the circumstances of the offending and of the offender with some care.  I will come back to aspects of this.  He then said:

[18]     I  intend  to  adopt  on  sentence  a  start  point  of  18  months’ imprisonment.   I have established that start point to accommodate the following factors:

(a)       I am satisfied you embarked on a course of conduct designed to render that house unable to be occupied by your former partner and her family.

(b)       While perhaps there was no risk to the safety of others, given their departure, the impact on their lives was significant.

(c)       Your motive.  This was not trivial or low end offending.  You were obviously seeking revenge against your wife, her sin being that she declined to yield up the car keys to enable you to go and purchase more liquor to advance your intoxication.  You were oblivious to the loss that you might otherwise occasion.

(d)       The  total  loss  of  $5400  –  odd.    $3,400  is  due  to  the  Housing

Corporation and realistically there is no prospect of reinstatement.

(e)       The combination of your offending.   There are, on top of these aggravating factors, other issues.   You have a history of domestic violence and damage.

[19]     I consider that to reflect totality that history and the combination of your offending should operate to elevate the sentence start point to one of 21 months.

[20]     As  to  mitigating  factors,  there  are  few.    Your  plea  sees  some concession but it was not an early one.  It is entered after a not guilty plea and  some  two  months  after  first  presentation.    Remorse  is  completely lacking.  As I have said, you derive pleasure from the loss you cause others and you have no interest at all in rehabilitative processes or moderating your conduct.

[21]      I recognise that you have a medical issue however I am not prepared to extend the concession I afford you further than three months.

[22]      Thus, on the intentional damage charge I am sentencing you to 18

months’ imprisonment.

Submissions on appeal

[9]      In well constructed submissions Mr Keegan made two principal points.  The first – and the first point that was made in the course of the submissions – related to the diagnosis that the appellant has a borderline personality disorder.   The central point of the submission was that this diagnosis has a material bearing on the level of culpability of this offender and the Judge failed to give sufficient weight to this.  The submission was therefore directed to the assessment of a starting point because the submission was concerned with the degree of culpability. The submission might also be brought into account at a later stage when considering mitigating factors relating to the appellant personally.  Mr Keegan did not seek to diminish the relative gravity of the appellant’s offending.  And he accepted that it was offending in a domestic context.  But, he submitted, these matters should not deflect from the relative weight to be attached to the diagnosis of a personality disorder.

[10]     The second principal submission concerned the starting point of 18 months imprisonment.  The submission was that this is manifestly excessive when regard is had to the nature of the offending in this case and when regard is had to a number of other cases that I was referred to.  Mr Keegan again acknowledged that the domestic

violence background – in a broad sense – to this offending is not to be ignored, but in terms of the acts committed by the appellant, the extent of the damage was much less than the extent of damage in numbers of other cases where the starting points, on a proportional basis, were not as high as in this case.

[11]     Mr Keegan submitted that a starting point for this offending, leaving aside aggravating or mitigating factors of a personal nature, should not be more than around nine to twelve months imprisonment.

[12]     For  the  Crown,  Ms  Law  acknowledged  that  the  starting  point  might  be regarded as stern.  But she properly emphasised the need to assess the end sentence overall, irrespective of the process of analysis by which the sentence in this case was reached.    On that  basis  Ms  Law submitted that  an  end  sentence of 18  months imprisonment, although it again could be regarded as stern, is not manifestly excessive.  Emphasis was placed on the domestic violence setting of this offending. In respect of the borderline personality disorder Ms Law pointed out that in this case there were, in effect, grounds to conclude that the appellant was effectively feeding his disorder.   This is evidenced by the admitted facts that he was taking pills and exacerbating the problem.

Discussion

[13]     The critical enquiry is not whether the starting point is too high but whether the end sentence is manifestly excessive.

[14]     Although there is difficulty in comparing one case with another in relation to offending of this sort,  there is need,  so  far as  possible, to  have proportionality between sentencing.  The cases that I have been referred to, and which I will simply

note by name, are: Fox,2  Meadows,3  Coxon,4  Clarke,5  Howarth,6  Leacock-Johnson7

2 Fox v Police HC Hamilton, CRI-2008-419-16, 24 April 2008, Allan J.

3 R v Meadows HC Christchurch, S No. 44/89, 15 August 1989, Tipping J.
4 Coxon v Police HC Dunedin, CRI-2011-412-000009, 7 April 2011, Lang J.
5 Clarke v R [2011] NZCA 336; CA218/2011, 22 July 2011.
6 Howarth v R [2010] NZCA 523; CA296/2010, 18 November 2010.

7 Leacock-Johnson v Police HC Dunedin, CRI-2010-412-15, 12 May 2010, Miller J.

and Shaw.8 Those cases illustrate the very wide range of circumstances that may arise. Recognising the need for caution in drawing comparisons, as I have already noted, I do consider that these cases indicate that the starting point of 18 months adopted by the Judge in this case was too high. This conclusion is, of course, directed to the facts of the offending itself, and leaving aside any aggravating or mitigating factors of a personal nature. With respect, I do agree with the Judge’s assessment at [18]. Some of these factors also aggravate the offending itself – increase the gravity of the offence itself. But these matters in my respectful opinion do not tie the offending sufficiently down to the admitted facts as to what was actually done. And they do not bring into account in respect of culpability – or at least weigh – questions arising from the diagnosis of a borderline personality disorder. I do consider that this expert diagnosis did need to be brought into account either in assessing the gravity of the offending, or as a mitigating factor, or perhaps at both points. In the end, for the purposes of an appeal, it is unnecessary to further analyse the way in which this might be brought into the assessment.

[15]     What I have described as the domestic violence setting of this offending cannot be ignored.  In that regard the Judge said:

[11]     Regrettably this represents yet another instance of you engaging in domestic abuse. Admittedly the charges themselves do not reflect that, other than  by  indicating  that  you  destroy  property.    Your  offending  here  is primarily against a woman who previously loved you and this is all because you were unable to get your way, to take a vehicle, ultimately to make a purchase to advance further your intoxication.

[12]      Your  offending  is  not  even  restricted  to  the  woman  you  see  as crossing you.  You offend against her sister and you offend, too, against the Housing Corporation with wanton property destruction.  Again, all because you do not get your way. You come across as a petulant, self-indulged bully. You obviously derive some perverse pleasure in your behaviour and the consequential  loss  you  repeatedly  caused  to  your  victims.    Your  victim impact statements here make sorry reading.   This woman had nothing by way of assets and she sees you as playing on your medical condition.  Her sister sees your ongoing attitudes and abuse as just an extension of your sick sense of humour.

[16]     The Judge then referred to the three protection orders that have now been made in respect of three different women and this certainly needs to be brought into

account when assessing the end sentence. The Judge then said:

8 Shaw v Police HC Timaru, CRI-2008-473-000020, 21 August 2008, Fogarty J.

[17]     There  was,  I  find,  a  malicious  aspect  to  this  offending.    You damaged items such as the toilet, such as the basin, to render the property otherwise uninhabitable.  That, of course, would be a consequence visited on your   wife.     The   Housing  Corporation,   of   course,   provides  housing opportunity to the less fortunate members of our society.

[17]     I come back to the diagnosis of the borderline personality disorder.   The significance of this needs to be weighed with caution.  To an extent it is a diagnosis that this appellant cannot control his temper.   But it goes further than that having regard to the professional assessment and the personal background of the appellant which is part of the context in which this assessment is made.  The Court of Appeal

in R v Nilsson9 said, at [10]:

A mental disorder falling short of exculpating insanity may nevertheless be capable of mitigating a sentence either because it moderates the culpability or  because  it  renders  less  appropriate  or  more  subjectively  punitive  a sentence of imprisonment, or for a combination of those reasons.

[18]     And in R v Wright10 the Court of Appeal said, at [22]:

The relevance of mental disorder in sentencing is conveniently summarised in passages from the three judgments of this Court, cited by Mr Woolford and referred to in para [20] above.   It is a factor which will inform a just sentence having regard to the character of the disorder and the weight it ought to carry when balancing sentencing objectives.   Its character may indicate a lesser degree of moral culpability or a greater subjective impact of penalty.  It may suggest a more or a less risk of a repetition of offending, so as to direct particular attention to issues of personal deterrence or public protection.     And  these  considerations  must  be  synthesised  with   the sentencing elements of denouncing the fact of violence in our society and acknowledging grievous effects on victims.

[19]     As I have already observed, the Judge considered the sentence in this case with some care.  However, in my respectful opinion insufficient weight was given to the two central matters identified by Mr Keegan and which I noted earlier.  Taking these matters into account I am satisfied that the sentence imposed in this case is

manifestly excessive.

9 R v Nilsson CA552/99, 27 July 2000.

10 R v Wright [2001] 3 NZLR 22 (CA).

[20]     I should have perhaps recorded, before stating that conclusion, that there is one other consideration.  This is the fact that, although this appellant has previous offences for this type of offending, the maximum sentenced imposed on him in the past for damage to property was two months imprisonment; that is one-ninth of the sentence now imposed.  I have not overlooked that fact that the maximum penalty for the previous offences was three months imprisonment.  And it is clear beyond reasonable argument that this appellant now requires a substantially longer term of imprisonment.    However,  whilst  the level  of increase  compared  with  an  earlier sentence is not remotely determinative, it is a relevant consideration because some of the purposes of sentencing are to seek to deal with this offender’s problems.

[21]     Having regard to all of these considerations I consider that the appropriate starting point for this offending would be no more than 12 months imprisonment. There was no substantial argument before me in respect of the uplift or the discounts referred to by the Judge.   That would therefore result in an end sentence of 12 months imprisonment.  When that is then related to the end sentence imposed by the Judge of 18 months imprisonment I am satisfied that the 18 months was manifestly excessive.

[22]     The  appellant  also  appealed  against  an  order  that  he  pay  reparations  of

$5,624.44.  The probation officer in the pre-sentence report had observed that there was no prospect of the appellant being able to pay reparation.  In the course of his sentencing comments the Judge recorded his agreement.  He said at one point that the appellant would “never be in a position to reinstate”.   Ms Law responsibly recognised  that  this  would  not  appear  to  be  a  case  where  reparation  was appropriately ordered.

[23]     The  question  of  reparation  in  terms  of  the  relevant  provisions  of  the Sentencing Act was discussed by the Court of Appeal in Howarth at [55]-[57]. In my judgment this was not a case for an order for reparation.

Result

[24]     The  appeal  is  in  consequence  allowed.     The  sentence  of  18  months imprisonment is quashed and a sentence of 12 months imprisonment is substituted.

[25]     The order to pay reparation is also quashed.

Woodhouse J