Warren v Police
[2015] NZHC 136
•11 February 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-000102 [2015] NZHC 136
BETWEEN VINCENT KERRY WARREN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 3 February 2015 Appearances:
A James for Appellant
B Hawes for CrownJudgment:
11 February 2015
JUDGMENT OF GENDALL J
Introduction
[1] On 27 June 2014 the appellant (Mr Warren), was found guilty1 on two counts of criminal harassment2 and one count of threatening to kill3 by His Honour Judge A D Garland in the District Court. This followed a defended hearing. On 6 August
2014 he was sentenced on these charges to five years’ imprisonment and a minimum
period of imprisonment (MPI) of three years four months was imposed.4
[2] Mr Warren now seeks leave to appeal out of time against both conviction and sentence. The notice of appeal discloses the following four specified grounds for the appeal:
1. That the sentence was manifestly excessive.
1 Police v Warren DC Christchurch CRI-2013-009-6828, 27 June 2014 [Trial Judgment].
2 Harassment Act 1997, s 81(a), each count carrying a maximum term of imprisonment of two years.
3 Crimes Act 1961, s 306, carrying a maximum term of imprisonment of seven years.
4 Police v Warren DC Christchurch CRI-2013-009-6828, 6 August 2014 [Sentencing Notes].
WARREN v NEW ZEALAND POLICE [2015] NZHC 136 [11 February 2015]
2. That I should not have been convicted on the threatening to kill charge. Evidence against me was unreliable.
3. Propensity evidence on other charges caused prejudice.
4. As self represented, I was at disadvantage.
[3] It has since been clarified that now Mr Warren appeals only his conviction in relation to the charge of threatening to kill and the resulting sentence imposed on him. Thus, ground 1 (noted at [2] above is limited to the threatening to kill count, and grounds 3 and 4 have effectively been abandoned.
Leave to appeal out of time
[4] Mr James, counsel who appeared before me for Mr Warren, explains that there had been approximately a one month delay in filing the notice of appeal. He says that this has caused no prejudice to the Crown and that, as the appeal prima facie has merit, the extension should be granted. He refers to Davis v Police in support of the leave application.5 The extension of time for the appeal is not opposed by the Crown. Given there is no objection by the Crown, the very short delay involved and the fact that there seems to be no prejudice resulting from this delay, I am willing to hear the appeal out of time and grant leave accordingly.
Jurisdiction
Conviction
[5] Mr Warren is able to appeal his conviction as of right.6 As first appeal Court, this Court must allow the appeal if it is satisfied that Judge Garland erred in his assessment of the evidence to such an extent that there is an error, irregularity or occurrence which has created a real risk that the outcome of the trial was affected, or
that it has resulted in a trial that is unfair or a nullity.7
5 Davis v Police [2014] NZHC 2568 at [11].
6 Criminal Procedure Act 2011, s 229.
7 Section 232(2)(b) and (4).
Sentence
[6] Mr Warren is also able to appeal the threatening to kill sentence imposed as of right.8 This Court will only disturb the sentence appealed from if an appellant can establish that there was an error in the sentence imposed and that a different sentence should be imposed.9 In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act
1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).10
(A) Appeal against conviction
[7] Turning first to Mr Warren’s appeal against conviction, on this aspect in the District Court there was a solitary witness to his threats to kill the victim in this matter. He was a fellow inmate whilst Mr Warren was on remand in prison. The threat to kill occurred at a time when Mr Warren was remanded on the criminal harassment charges. The evidence in relation to the threat from the appellant’s cellmate involved testimony about comments made to him by the appellant in prison while they were on remand. In his evidence, the cellmate said that after Mr Warren had told him that he was going to kill the complainant in a gruesome fashion using a craft knife, he was so concerned about these threats that he informed the prison authorities. The appeal against conviction is advanced on the basis that this evidence of the fellow inmate is unreliable.
[8] It is useful here to review what this witness stated. What follows are relevant excerpts from the notes of evidence:
Q. If I can take you to the week commencing 14th September you had some concerns raised?
A. I did, yes.
Q. Tell us what those concerns were?
8 Section 244.
9 Section 250.
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
A. Ah, Vincent’s behaviour had become pretty outlandish, um, it had got worse, ah, I saw it when I moved in when I first arrived but over time it got worse and the subject matter got pretty ugly.
…
Q. What sort of things did he – else did he talk about doing to [...]?
A. Well he was going to make her pay for four years of his life. He was going to give her four years of pain. Um, the one thing, when I got really concerned, was most guys in there talked about when they got released they were going to have a beer, catch up with their mates or buy a packet of smokes or go and see their wife or girlfriend, and Vinnie was going to go and buy a craft knife.
Q. What did he say in relation to the craft knife?
A. I asked him why, and he said, “Well, she’s going to have four years worth of pain,” and then he said, “I’m going to give her a Colombian neck tie,” and I’ve heard the term before. I know exactly what it is, but I thought it may have just been something he had picked up and was repeating parrot fashion, so I said, “Oh yeah, what?” So he proceeded to tell me in great detail exactly how he was going to do it.
Q. Tell us what he told you what he was going to do?
A. Well after he tortured her and he got his four years worth, he was going to cut her throat and drag her tongue out through the slash mark in the throat and watch her bleed out and choke.
Q. You mentioned that he was going to torture her? A. Yeah.
Q. Did he say what he was going to do?
A. Not really specifically when it came to the torture, but he said, “She’s in for a lot of pain.” He’d had four years of his life, um, excuse me, um, mucked up by her so she was going to pay in pain.
Q. When he was describing the Colombian necktie how would you describe his body language?
A. Absolutely cold, he went from being ranting and raving and storming around it was like when he started going on “until she’s gone I can’t move on”, ah, he’d just no emotion and just totally blank expression but when he started talking about it the more he talked about it the more excited he was getting, he was just sitting there on the bed and he’d just start to squirm, ah, it was, it was, really, it’s hard to explain but it was very uncomfortable and it was weird to watch.
…
Q. These comments Mr Warren’s saying to you, how did you take those
comments?
A. Well over my life I’ve associated with some extremely hard maybe ruthless people, um, some of them could be quite scary. None of them are as scary as Vincent Warren. I believed with every fibre of my being that that man would do what he threatened to do at his very first opportunity.
Q. You subsequently made a statement to the police?
A. I did. I wasn’t going to. I was very uncomfortable about that because I was on remand at the time, ah, and it’s not the done thing and you can get severely stitched up just by doing it but the only reason I did is because I believed totally that he meant every word he said.
[9] In terms of the length of time it took this fellow inmate witness to come forward and make a statement, the following exchange in cross-examination between Mr Warren and the witness is relevant:
Q. Why did you wait from that period of time until the 16th of October then to write a statement?
A. Because I had concerns myself. It’s not the done thing in a jail and I had to be sure in my own mind and in my own heart before I took a leap like that and put myself at risk but I believed it strongly enough to do that.
[10] Turning now to the ingredients of the charge of threatening to kill, on this the
Crown is required to prove two elements:
(a) First, that a threat of death or grievous bodily harm has been made in relation to a person (although not necessarily the person to whom the threat is delivered); and
(b)Secondly, an intention on the part of the maker of the threat that it be taken seriously.
[11] In the District Court Judge Garland dealt with the evidence of the cellmate witness in respect of the threatening to kill charge in the following way:11
11 Trial Judgment, above n 1 (emphasis added).
[71] I remind myself that the propensity evidence is only relevant to the criminal harassment charges and is not at all relevant to the charge of threatening to kill. I also caution myself that the witness [...] could have an interest to serve of his own in making allegations against the defendant, his then cellmate. While there is no evidence before the Court that persuades me that he did have a motive to lie, it is possible that he could have had such motive of which no evidence has emerged.
…
[77] I accept the evidence given by [...] in this case as both credible and reliable. Without doubt he put his own safety at risk in reporting his concern to prison authorities and the police. This Court is well aware of the culture that exists in prisons and amongst the criminal fraternity in relation to what is termed “narking”.
[78] Persons who go to the authorities and inform are liable to be subjected to severe retribution including physical harm. I accept his evidence that that was the concern that caused him to delay reporting the matter until about 15 October 2013. Secondly the content, apart from the threats to kill, of what he reported that the defendant said is consistent with other evidence in this case. For example, the role play discussions that he says he overheard, reflect the defendant’s views on the difficulties he was experiencing in his imagined relationship with the complainant and her responses. The reference to [Mr X] as one of those conspiring to keep him and the complainant apart, is consistent with the defendant’s own evidence that [Mr X], a former policeman, was part of the conspiracy.
[79] The sleep talk is consistent with the defendant’s own evidence as to the conflict that he felt about the relationship that he had with the complainant. That the defendant stated that he was unable to move on is consistent with the defendant’s own evidence in this case that he felt so tormented, so overwhelmed by it all that he just could not move on and get closure.
[80] This witness did not, in my view, appear to have any motive to lie. I accept [...] evidence that he did not know of a complaint, if one was ever made, by the defendant about his hygiene. I accept the evidence that the defendant was shifted from the cell with [...] after [...] had informed the prison and police authorities of his concerns.
[81] Having had the benefit of seeing and hearing [...] I formed the distinct impression that he was not exaggerating at all. He was just telling it as it was. He was not expecting any favours. He was no longer a prisoner. To my mind he spoke out because plainly and simply he was worried about the complainant’s safety, and rightly so.
[82] I reject the defendant’s denials of making the threat to kill is untrue. I accept [...] evidence that the defendant did threaten to kill the complainant in the manner described.
(Emphasis added)
[12] As the trial Judge, Judge Garland was in the best position to make findings as to reliability and credibility with respect to the witness. No submission advanced before me by Mr Warren’s counsel has convinced me that those findings can in any way be impeached. There is no requirement that evidence be corroborated. There was no evidence before the District Court that this cellmate’s evidence was in fact unreliable, for example by him having been provided with any incentives or otherwise. Judge Garland expressly directed himself in terms of s 122 Evidence Act
2006 and as to the potential dangers of evidence given by persons such as this cellmate witness, particularly in environments such as prisons. That aside, he still felt that the evidence of the witness proved the charge and both requisite elements of it as outlined at [10] above, beyond reasonable doubt. That was a finding that was open to him.
[13] In all the circumstances I am not prepared to go behind the findings made by Judge Garland as to credibility and reliability. I am satisfied that there was no error or irregularity which occurred here.
Result on the conviction appeal
[14] Mr Warren has failed to surmount the requisite threshold for an appeal against conviction. The appeal against conviction accordingly fails.
(B) Appeal against sentence
[15] Mr Warren contends that Judge Garland fell into error in imposing the sentence that he did on the threatening to kill charge for two primary reasons:
(a) First, that the starting point of four years was too high. In particular, the Judge was in error in categorising this as offending that is the most serious of its kind.
(b)Secondly, that the minimum period of imprisonment imposed of three years, four months, being some 66 per cent of the total sentence imposed, was too high.
[16] It is the Crown’s position that the sentence imposed though undoubtedly stern, “was one that in the unusual and concerning circumstances of the case was available”.
[17] I plan to review this sentence by first, analysing the approach taken by Judge Garland, secondly, by drawing some comparison with other cases and, finally, by making an assessment of whether the sentence was within the available range in all the circumstances.
Judge Garland’s approach
[18] After setting out the charges faced by Mr Warren, Judge Garland opened his sentencing notes with these remarks:12
[3] The probation report informs me that you are 39 years of age. The probation officer says that over the last four years or so you have conducted concerted and deliberate acts of harassment towards the female victim. That has resulted in a term of imprisonment.
[4] What is obvious from the pattern of your offending is an escalation of the frequency and seriousness of it, with the latest offending including a threat to kill. The probation officer comments that it is also apparent that sanctions imposed have not acted to deter your behaviour, as the threatening to kill offence was committed while you were in custody upon remand.
[5] Such sustained harassment against one vulnerable woman over such a long period of time, the probation officer says, must undoubtedly cause considerable psychological harm.
[6] I am told that your stance at interview indicates that you have no remorse for your actions. You are considered by the probation officer to pose a high risk of further offending. Your presentation during the interview and your attitude towards your offending, suggests that you may benefit from forensic psychiatric assessment, however I am told you are unlikely to allow yourself to be treated should a diagnosis highlight any mental health issues. The recommendation is for a sentence of imprisonment.
[7] I have read the clinical psychologist’s report that has been placed on the Court file. I note the opinion expressed is that you have no mental health or cognitive difficulties which might otherwise explain your behaviour.
[19] Judge Garland then considered the relevant purposes of sentencing, which he determined were accountability, the interests of the victim, denunciation and
12 Sentencing Notes, above n 4.
deterrence. The relevant principles of sentencing were then recited. He then continued:
[11] Mr Warren, this is one of the most concerning cases that I have dealt with in my time in the law. You are clearly obsessed with the victim and are fixated on the pain and grievances that you believe she is responsible for. You have absolutely no insight into the distress that you are causing the victim and her family.
[12] Your behaviour has now taken a more sinister and chilling turn for the worse with your threat to kill her. If it was within my power to consider or to refer to the High Court to consider the possibility of preventative detention, I would do so. Unfortunately that is not possible as the law stands.
[20] The aggravating features of the offending were determined to be the clear premeditation present in the criminal harassment offending, the fact that the harassment manifested in various forms, the escalating aggression in the harassment and that the threat to kill was made while Mr Warren was remanded in custody.
[21] In terms of the threat to kill, there were a number of features about that which further aggravated the offending. That the threat was directed towards someone who was already vulnerable because of the harassment, the threat was “very precise and specific”, it involved the use of a weapon and a gruesome mode of death, the person to whom the threat was made (the cellmate witness referred to above) took the threat very seriously, and finally that the victim was seriously disturbed when she found out that Mr Warren had made the threat against her.
[22] After considering cases which Judge Garland considered were relevant, and then expressing some disdain that the tenor of the authorities was such that a higher starting point could not be adopted, a starting point of four years was taken for the totality of the offending. An uplift of one year was then applied to account for Mr Warren’s three previous convictions for criminal harassment and one for offensive language against the same victim, for the fact that the offending occurred shortly after Mr Warren was directed to have no contact with the victim for one year, and on the basis that the offending occurred whilst he was in custody as a result of the criminal harassment against the victim. There were no mitigating features.
[23] Thus, the end sentence imposed was one of five years’ imprisonment. An MPI of three years, four months’ imprisonment was then considered necessary to hold Mr Warren to account, to denounce and deter his conduct, as well as to protect the victim.
Relevant authorities
[24] Because the circumstances of cases involving threats to kill vary widely, there is no guideline judgment or tariff for this crime – Burchell v R.13 Previous authorities however are usefully considered. In Burton v R the appellant pleaded guilty to one count of threatening to kill and one of breaching a protection order.14
The offending was committed against his former partner whilst he was in prison for earlier offending against the same person. The earlier offending was described by the District Court as follows:
[8] Upon arrival at the address Mr Burton hid on the property boundary while Mr Te Wake went to the dwelling and woke the occupants, asking M if she would come and speak to Mr Burton about the property they owned. M reluctantly agreed and followed Mr Te Wake to the end of the drive. Having reached that position Mr Burton became confrontational with M about the vehicle and indicated that he would be keeping furniture that may have belonged to M until the vehicle was returned.
[9] It is important to note that at the time of this incident M was eight months' pregnant with Mr Burton's child. M refused to discuss the matter with Mr Burton and he became enraged. His reaction was to grab the shoulder bag containing the sawn-off shotgun from Mr Te Wake. Mr Burton then took the shotgun from the bag, along with a shotgun round. He has shown the shotgun round and the shotgun to M and asked for the vehicle to be returned to him. M refused to return the vehicle to him. Mr Burton's reaction is to then step toward the complainant to raise the shotgun and put it to the complainant's head whilst saying, ‘Shall I shoot you now?’ …
[10] Ms [M] was terrified by the actions of Mr Burton.
[25] For this offending a starting point of three years’ imprisonment was taken, uplifted by six months for previous convictions before discounts were applied. The offending that is the subject of the most recent appeal involved Mr Burton calling the same victim from prison and saying “disrespect my baby and I’ll kill you, simple. That’s not a figure of speech. I mean what I say”, and further “”I’m coming for your
family first of all, and I’ll eradicate your brother”. He called again at a later date and said “”I’m going to kill you when I get out”. The Court of Appeal dismissed the appeal against the sentence, remarking that the starting point of 30 months’ imprisonment was well within range.
[26] The Court of Appeal’s recent judgment in the case Simon v R is also instructive for current purposes.15 It involved a raft of offending. However, the offending involving threats to kill the victim are the most helpful for present purposes. That suite of offending was described by the Court of Appeal in the following manner:
[6] … Also in December 2011 Mr Simon parked behind Ms Flint at a local dairy preventing her from reversing out. He smashed the driver's window, showering glass over Ms Flint and their two-year-old daughter who was also in the car. That resulted in a charge of intentional damage. He threatened to kill Ms Flint, which resulted in the second charge of threatening to kill. He reached through the broken window and punched Ms Flint, resulting in a further charge of male assaults female.
[27] On appeal, the Court of Appeal stated that the starting point of three years for the offending against Ms Flint outside the dairy was at the high end of the available range, but that it was available.
[28] The next authority, Taylor v Police involved charges of threatening to kill, and common assault along with resisting police.16 The victim was Mr Taylor’s former partner. One night he came to her house whereupon she tried to prevent his entry, but he forced his way in and pinned her against a door. Mr Taylor screamed at the victim for being a nark and told her she needed to move away or he would kill her. She phoned Police and Mr Taylor was caught a short time later, though had to
be restrained by a taser. Mr Taylor appealed his sentence on the basis the three year starting point and six months uplift for totality were too high.
[29] On appeal, Williams J held that the violence here was modest and there was no use of a weapon. Overall, it was held that the end sentence was manifestly
excessive. A more appropriate – even stern – starting point should have been 18 months for the threatening to kill.
[30] Burchell v R involved a solitary charge of threatening to kill a police officer.17
The threat was made to one police officer, but related to another. The Court of Appeal took the view that the facts placed Mr Burchell’s culpability at the lower end of the scale. The aggravating feature was that the threat was made against a police officer. The Court of Appeal considered that a sentence of eight months’ imprisonment was excessive and a starting point and end sentence of four months’ imprisonment was substituted.
[31] In Allan v Police,18 during the course of an argument the offender went to his vehicle, obtained a firearm which was loaded, but had no ammunition in the chamber, and pointed it at the head of his victim stating “I’m deadly serious. There’s two bullets in here, one for you and then I’m going to kill myself”. He then stated “if you try and end this relationship I’ll kill you and then me”. Mr Allan attempted to explain this by stating that he had problems with alcohol and had relationship problems. He was also being sentenced for other firearms-related offending.
[32] Mr Allan was sentenced to an end point of 22 months’ imprisonment in the District Court for all offending. This stemmed from a starting point of 12 months’ imprisonment on the threatening to kill charge, ultimately uplifted to 21 months’ imprisonment, resulting in an end sentence of 16 months’ imprisonment after taking into account his guilty plea for this charge. There was a further cumulative sentence for other offending increasing the total sentence to 22 months. On appeal it was said that a starting point of 18 months to two years might have been considered appropriate for the threatening to kill offending. The sentence imposed here was therefore well within range.
[33] I have also been guided by several other cases, namely:
17 Burchell v R [2010] NZCA 314. Reference was made to two other decisions involving police officers: R v Cherri (1989) 5 CRNZ 177 (CA) (one year imprisonment upheld on appeal); R v Terry CA45/00, 8 June 2000 (16 months imprisonment upheld on appeal).
18 Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011.
(a) Fahey v R:19 where the defendant threatened to kill one complainant who Mr Fahey had approached in an aggressive manner, and racially abused and assaulted another with a rock in a sock. An appeal against a sentence of 15 months’ imprisonment was dismissed.
(b)McCleary v Police:20 where the defendant had sent two text messages threatening to kill her former partner. On appeal Asher J considered her culpability similar to that in Burchell v R and thought an appropriate starting point was four months’ imprisonment.
(c) Annas v R:21 Whilst she was on bail for an offence involving unlawful assembly, Ms Annas telephoned WINZ and threatened to kill the service centre manager. She had already been trespassed at the time this happened. The threats were to both burn down the building with everyone in it and also to kill the manager personally. A sentence of nine months’ imprisonment was undisturbed on appeal.
(d)Freakley v R:22 Mr Freakley was sentenced to three and a half years imprisonment on one count each of threatening to kill, one count of committing a crime with a firearm, and one count of unlawful possession of a pistol. Mr Freakley went to the complainant’s house, with whom he had been in a short relationship. He called her several times there before letting himself in and closing the curtains. When the complainant returned home from work he verbally abused her before pointing a sawn-off shotgun at her chest and said “either you’ll die or I’ll die tonight”. A starting point of three years was adopted.
(e) Brewer v Police:23 Mr Brewer went to the reception area of the Prisoners Aid and Rehabilitation Office in Dunedin for help. He told a staff member he was going to travel to Invercargill, obtain a firearm
and then use it to blow away the victim. He then pulled a knife from
19 Fahey v R [2014] NZCA 465.
20 McCleary v Police [2014] NZHC 1581.
21 Annas v R [2011] NZCA 49.
22 Freakley v R [2010] NZCA 497.
23 Brewer v Police HC Dunedin CRI-2011-412-25, 28 September 2011.
his bag and showed it to another client. A starting point of two years was not disturbed on appeal.
(f) R v Sykes:24 Mr Sykes, while at a tangi for his grandfather, overheard a conversation and became agitated. He began threatening the victim and smashing items in the house. He then threatened other family members before obtaining a pistol, which he pointed at the victim’s head and threatened to kill her. It was loaded with ammunition, albeit incorrect ammunition rendering it unable to be fired. A starting point of one year was taken for the threatening to kill charge, uplifted by six months for the repeated nature of the threats.
(g)R v Puke:25 Mr Puke told his estranged wife that he was “sick of her shit” and that he would shoot her. He also drew his hand across her throat telling her he would get his father’s butcher’s knife. He then left the lounge for a short period. When he returned he became involved in a struggle with his pregnant daughter, resulting in him pushing her into a table. The daughter then left. Mr Puke then grabbed his wife by the throat and started to shake her, repeating that he was “sick of her shit”. At this stage he told her that she was going to die soon. A global starting point of three and a half years was taken for the offending. This was upheld on appeal.
(h)Johnstone v R:26 Mr Johnstone was convicted before a Judge alone trial on a number of charges which were assault on a woman with whom he was in a relationship; one charge of causing grievous bodily harm to the woman with reckless disregard for her safety; one charge of intentionally damaging the front door of her flat; two charges of threatening to kill the woman and her female neighbour; and one charge of breaching a special release condition. A global starting point of three and a half year for all charges was not disturbed on
appeal.
24 R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.
25 R v Puke [2009] NZCA 582.
26 Johnstone v R [2013] NZCA 214.
[34] The question that now arises is how these authorities might compare to the present case. I am of the view that the following cases involved greater criminality than the present case: Burton v R, Simon v R, Allan v Police, Freakley v R, R v Sykes, R v Puke and Johnstone v R. And, as I see it, the following cases are, broadly speaking, less serious: Burchell v R, McCleary v Police, Annas v R (though this is a case where Ms Annas had a negative history with the Government institution which employed the victim) and Brewer v Police. I also note that Taylor v Police and Fahey v R are somewhat anomalous, perhaps outside the broad range adopted by the other cases.
[35] I do not find the cases of Daniels v R27 or R v Makavalu28 relied on by Judge Garland to be of much assistance for present purposes. I note that the offence in Daniels was more serious, being punishable by a maximum term of 10 years’ imprisonment (and not the maximum term of seven years imprisonment applying here). Further, these two cases in my view involve greater criminality and culpability generally than is present in this case.
Was the sentence within range?
[36] It is trite to say that there is no tariff for the offence of threatening to kill. As the Court of Appeal said in Burchell v R, “[t]he circumstances are always decisive”.29
However, in Allan v Police White J identified the following factors which can be of assistance in determining the overall seriousness of this type of offending:30
(a) That the threat was made against a public official or person, such as a police officer or civil servant;
(b) Whether the threat related to some vulnerable person such as a child or relative of the person with whom the offender had some disagreement;
(c) Whether the threat was impulsive or premeditated; (d) The degree of precision and specificity of the threat;
27 Daniels v R [2011] NZCA 234.
28 R v Makavalu [2013] NZHC 805.
29 Burchell v R [2010] NZCA 314 at [25].
30 Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011 at [29] (citations omitted), endorsed by the Court of Appeal in Simon v R [2014] NZCA 207 at [22].
(e) The apparent willingness of the offender to carry out the threat or the degree to which it was meant to be taken seriously;
(f) Whether the threat involved or threatened the use of a weapon;
(g) The level of harm, distress or fear caused to the victim and the impact on their life;
(h) Whether the threat was made directly to the victim or to some third party; and
(i) Where the threat was a reaction of excessive or unreasonable self- defence that may be mitigating;
(j) Whether a threat is made directly to the victim in person or by some means of communication will not be determinative.
[37] Plainly the facts of this case are somewhat outside the bounds seen in many other similar cases including a number I have noted above:
(a) The threat to kill followed a deliberate, sustained and concerted barrage of harassment and intimidation by Mr Warren against the victim. The threat to kill came in the wake of the intentional creation of a climate of fear over the course of four years. The harassment and threat are inextricably intertwined and there is no sensible basis to divorce the harassment and threatening to kill offending.
(b)This harassment by Mr Warren has had a profound deleterious impact on the victim and her family. The victim impact statement makes all too clear the psychological impact this has had on her, with her living in a state of constant extreme fear through Mr Warren’s actions. Indeed, it has reached a point for her where she is considering emigrating overseas to escape Mr Warren’s irrationally obsessive actions.
(c) No sentence imposed on Mr Warren in relation to these matters has had any impact in curbing his predatory obsession with the victim. Indeed, the threat to kill was made not only whilst Mr Warren was remanded in relation to the harassment, but the harassment itself also occurred a mere two months after he was directed to have no contact
with the victim for one year. He seems wholly unable to grasp the concept that the victim wants nothing to do with him and that the law will meet his persistence in spite of this with a stern response.
(d)The chilling demeanour of Mr Warren when he made the threat simply adds to the level of concern. As the witness stated, he believed with every fibre of his being that Mr Warren would carry out the threat. I do not think it an overstatement to observe that Mr Warren has no remorse for his actions.
[38] Notwithstanding the particular circumstances giving rise to these present charges, I have reached the conclusion that the sentence imposed in the District Court is not in line with current sentencing for offending of this kind, including the approach taken by the Court of Appeal. I reach this conclusion with some reluctance here because, like Judge Garland in the District Court, I have very real concerns about Mr Warren and his abnormal obsession with the victim in this matter. However, I am bound to endeavour to achieve a degree of some consistency among sentences.
[39] The undeniable reality is that this offending is less serious than many of the other examples of threatening to kill noted above. While it is shameful conduct that ought to be met with a stern punishment, it must still be an appropriate response, and not artificially inflated. As I perceive the situation, the following factors to an extent remove this from the most serious cases of its kind:
(a) The threat was not made directly to the victim. Rather, it was made to a fellow prison inmate.31 The result of this is that, at the time the threat was made, Mr Warren was in no position to give effect to his threat.
(b)In this context, though I accept the evidence of the witness that he believed Mr Warren to be serious about giving effect to his threats, it
31 In Burchell v R [2010] NZCA 314 the Court of Appeal appeared to treat such indirect threats as of lesser culpability: “However, while Mr Burchell's threat involved a police officer, it was not made to the officer or in his presence” (at [27]).
might be said that there was an element of impulsiveness and anguish at the position in which Mr Warren found himself, namely prison.
(c) While Mr Warren has previously made harassment and intimidatory remarks directly towards the victim, the threatening to kill offending is the first of its kind and represents a marked escalation in seriousness.
(d)Although the threat did involve the threatened use of a weapon, it does not fall into that most frightening category of cases where a weapon (such as a loaded gun) is brandished at the victim.
(e) I readily acknowledge the impact that Mr Warren’s actions has had on the victim. However, in terms of that impact, it must be said that she would have been much more fearful, distressed and harmed had Mr Warren made the statements directly to her. She learned about them second hand in this case.
(f) The cases relied on by Judge Garland do not support such a high starting point. Indeed, the general tenor of all the cases to which I have referred does not support a starting point of four years for offending of this nature.
[40] I therefore allow the appeal against sentence. In focussing on the overall sentence imposed in the District Court by Judge Garland, I am of the view that five years imprisonment here was manifestly excessive. In all the circumstances I think the highest I can safely put the starting point is 30 months’ imprisonment for the totality of the offending. In terms of aggravating features related to the offending, I would uplift by 12 months to account for previous convictions, particularly those related to the same victim, along with the fact that the threatening to kill offending occurred whilst in remand for the harassment charges those harassment charges arose only two months after Mr Warren was judicially directed not to contact the victim for one year. There are no mitigating features of this offending.
[41] This brings me to an end sentence of 42 months’ imprisonment (three years, six months). Now, I must determine whether a minimum period of imprisonment is needed in terms of s 86 of the Sentencing Act 2002. In my view, it is necessary. I will fix this at 24 months’ imprisonment (two years), which is approximately 57 per cent.
Result on the sentence appeal
[42] The appeal against sentence is allowed. The end sentence of five years (60 months) is quashed and substituted with one of three years, six months’ (42 months) imprisonment.
[43] The MPI of three years, four months (40 months) is quashed and replaced with an MPI of two years (24 months).
[44] One final matter needs to be mentioned here. In his sentencing notes dated
6 August 2014, as I have noted at [19] above, Judge Garland at [11] stated:
[11] Mr Warren, this is one of the most concerning cases that I have dealt with in my time in the law. You are clearly obsessed with the victim and are fixated with the pain and grievances that you believe she is responsible for. You have absolutely no insight into the distress that you are causing the victim and her family.
[45] It is difficult here not to share these concerns expressed by Judge Garland. I observe therefore that it is of particular importance in my view that every possible effort is made to provide Mr Warren with further psychological assessment, treatment, counselling and education programmes whilst in prison and perhaps also following release to properly address these matters. I would hope these concerns are drawn to the attention of the relevant prison authorities.
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Gendall J
Solicitors:
Alister James, Christchurch
Raymond Donnelly & Co, Christchurch
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