Wallace-Joe v Police

[2016] NZHC 3060

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2016-441-000034 [2016] NZHC 3060

BETWEEN

TRAVIS DWAYNE WALLACE-JOE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	13 December 2016
Counsel:	P J Jensen for Appellant C R Stuart for Respondent
Judgment:	14 December 2016

JUDGMENT OF WILLIAMS J

Introduction

[1]      On 4 July 2016, the appellant pleaded guilty to three charges of male assaults female, four of breaching a protection order, and one of intentional damage.   On

20 September 2016, he was sentenced to 16 months’ imprisonment.1     He appeals

against sentence on the basis of a new affidavit of the victim, and says  that  a sentence of supervision and community work should have been imposed.

Facts

[2]      The first set of offending occurred on 2 January 2016 at the address where Mr Wallace-Joe and the victim both lived. A protection order had been issued nearly two years earlier in April 2014.  She had locked him out, and he smashed a window to get into the property.  He became violent, and pushed her, causing her to fall to the floor.  When she tried to get up, he kept pushing her down.  He walked through the

house and she confronted him in the hallway, asking him to leave.  He then pushed

1      Police v Wallace-Joe [2016] NZDC 18749.

WALLACE-JOE v NEW ZEALAND POLICE [2016] NZHC 3060 [14 December 2016]

her around the throat, resulting in a small scratch.   This resulted in charges of contravening the protection order, intentional damage and male assaults female.

[3]      Mr Wallace-Joe was bailed for those offences, and his conditions included not associating with the victim and not going within 100 metres of her address.  On the evening of 13 April 2016, he arrived at her house.   She was not there.   She arrived home and confronted him about money issues, and asked him to leave.  He refused.  He became angry and picked up a bottle of liquid and threw it at the victim, hitting her in the head.  She walked outside and waited about five minutes for him to leave.  He did not leave.  The victim then returned and asked him to leave again.  He picked up a bag of rubbish and swung it at her head, hitting her in the face.  She left the address in a vehicle and told Mr Wallace-Joe she would call the police.

[4]      She returned to the address after a short period, thinking he may have left. She drove into the driveway and saw him walking from behind the garage, holding a spade.  She got out of the vehicle and asked him to leave again.  He approached her, and using both hands, pushed her in the chest against the wall of the house.   He verbally abused her and pretended to hit her with the spade.   She tried to walk towards her car, but Mr Wallace-Joe wrapped his fingers around the front of her neck and pushed her three times while she was walking.  She ran to the car and left the address.

District Court decision

[5]      In  the  District  Court,  Judge  Coyle  noted  Mr  Wallace-Joe’s  previous conviction for breaching a protection order in 2015, and his numerous convictions for breaching conditions.   He noted that the PAC report spoke of him having no remorse for his victim.  He discussed the victim impact statement and the fact that the victim had a protection order and is entitled to be protected from him.  He said that the Stopping Violence Programme the appellant undertook had not led to any change.  He emphasised the principles of denunciation and deterrence, given that Mr Wallace-Joe continued to offend despite intervention.  The Judge considered that he did not have any respect for women or for the terms of the protection order.

[6]      The Judge considered that home detention was not an option, because the proposed address had not been assessed and because it would not be appropriate given the number of protection order breaches, his violence, and his breaches while subject to bail.

[7]      The Judge adopted a starting point of 12 months for all charges.  He uplifted that by nine months for previous offending and the fact that some of the offending occurred while on bail.  He gave a 20 per cent discount (four months) for guilty plea, and a one month discount for the time spent on restricted curfew.  Accordingly, the end sentence was 16 months’ imprisonment.

Appellant’s submissions

[8]      Mr Jensen submitted that the victim impact statement had misrepresented the correct  state  of  affairs  and  this  had  distracted  the  Judge  into  overvaluing  an inaccurate picture of the impact of this offending on the victim.  Mr Jensen also filed an affidavit from the victim.  It described a different kind of relationship between the offender and victim to that referred to in the victim impact statement.

[9]      The affidavit says that the victim impact statement (dated 13 April 2016) did not accurately represent her views at the time of sentencing.  She also notes that she did not sign the statement.  She says she was “het up and angry” when she made the statement and does not recall what she said at the time.  She was told by police to go home and reflect on what happened and that they would get back to her.  But they did not.  She says that she did not suffer “constant” abuse from Mr Wallace-Joe, and that they mostly got on well.  During the bail period, they both went to counselling with FamilyWorks.   She says that they did not do the same courses because they were not allowed to associate, and that Mr Wallace-Joe has missed out by not doing the courses that she has completed.

[10]     She refers to her comment in the victim impact statement that he comes around to her place all the time and uses her money.  She says that they were on a joint benefit and they shared a bank account.  She saw that he was wasting money, by, for example, getting takeaways for the children instead of cooking for them.  She said she got conflicting advice from different case workers (CYPS case worker,

counsellor and social worker)  and she complained to Mr Wallace-Joe about his wasting money.   She says that he got arrested during that time because they were associating in breach of his bail condition.  Since his most recent bail, she says they have stayed apart and complied with the conditions.   She says that she wanted to make a statement before sentencing but a social worker told her that she should hold off and let matters run their course, because if she supported Mr Wallace-Joe in court, she could look bad and this could impact on the children.

Crown submissions

[11]     Counsel notes that the appellant has not applied for leave to adduce new evidence, but does not oppose this.

[12]     Counsel submits that the Judge only refers to one sentence of the Victim Impact Statement in his sentencing notes: “The protection order doesn’t stop him hurting me.”   And she did not resile from this significant comment in her new affidavit.   The comment is supported by the charges, and also Mr Wallace-Joe’s history of violence and non-compliance with the protection order.  But in any event, the Judge’s reliance on the Victim Impact Statement was modest, and there is no evidence that he was under a false impression of the facts or the impact of the offending on the victim.

[13]     In any case, the victim’s affidavit does not have any material effect.  It largely repeats  or  bolsters  Mr  Jensen’s  sentencing  submissions.     It  describes  their relationship as a whole and suggests neither of them are blameless.  Counsel submits that the Judge was under no illusions as to the nature of the relationship.   Other information in the affidavit is not relevant at sentencing, and would not have been taken into account.

[14]     Counsel notes that there does not appear to be any challenge to the starting point, uplifts or reductions adopted by the Judge. And the end sentence was justified given Mr Wallace-Joe’s history of non-compliance with Court orders, breaches of bail and community-based sentences.

Discussion

[15]     The appellant must demonstrate an error in the Judge’s reasoning, or an error that becomes apparent as a result of additional material submitted on appeal, where such error results in an end sentence that is manifestly excessive being plainly wrong or wrong in principle.

[16]     The  victim  impact  statement  dated  13  March  says  that  the  victim  was assaulted on that day by Mr Wallace-Joe, that he hit her with a rubbish bag and a raro bottle, and that he pushed her around.   She says that she has a protection order against him and he has hit her before.   She says she is sick of the constant abuse from him; it needs to stop; and she does not want him at her house.  She says he uses her money all the time without her permission, and he takes advantage of their joint benefit, which is frustrating because the money is meant to be used for their children. She says that he needs help, and the protection order does not stop him hurting her.

[17]     As noted by Crown counsel, the Judge only refers to the part of the victim impact statement where the victim said: “The protection order doesn’t stop him hurting me.”  The Judge does not refer to the comment that the appellant abused her constantly or that he wasted her money – which are the two points that the affidavit is directed at.  She does not deny that the offending happened or retract what she said about it.  Accordingly, the Judge took the statement into account as he was entitled to, and the new affidavit does not suggest the messages properly drawn from it were wrongly drawn or misconstrued.  The affidavit does say that she does not want the appellant jailed.  Rather, she wants him educated into being a better partner.  This is a common and entirely understandable refrain.  But it cannot be said that the Judge was in error to choose imprisonment on these facts and with the appellant’s history of violence.

[18]     A matter Mr Jensen did not refer to in his written submissions is the uplift for previous offending.   This was nine months, in addition to the starting point of 12 months.  It represented a 75 per cent uplift.  While there is some relevant history of domestic violence (one male assaults female (manually) in April 2014) and a number of early non-domestic violence offences (five common assaults in 2007 and 2008);

and  while  the  latest  offending  occurred  during  bail  for  similar  offending;  it  is difficult to see how even in combination this could justify a 75 per cent upgrade. Even if there were to be an uplift for the appellant’s wider (non-relevant) offending pattern (I do not for myself see why there would be), it could not in combination with relevant past offending, have produced an uplift of more than two months. Meanwhile the offending while on bail factor could not have justified more than a three month uplift.

[19]     The Judge thus made an error of principle and the end sentence was rendered manifestly excessive accordingly.

[20]     I would allow the appeal to that extent only and recalculate the sentence as follows:

(a)       starting point – 12 months;

(b)      uplift for previous offending – two months;

(c)       further uplift for offending while on bail – three months;

(d)      approximately 20 per cent discount for guilty plea – four months; (e) further discount for time on restricted curfew – one month;

(f)       end sentence – 12 months’ imprisonment.

Williams J

Solicitors

P J Jensen, Barrister, Napier

Crown Solicitor’s Office, Napier