Waterman v Police
[2021] NZHC 3083
•16 November 2021
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2021-425-000018
[2021] NZHC 3083
BETWEEN JAMIE WATERMAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 November 2021 Appearances:
J A T Ross for the Appellant
M B Brownlie for the Respondent
Judgment:
16 November 2021
JUDGMENT OF NATION J
Introduction
[1] The appellant, Jamie Waterman, was sentenced by Judge Walker in the District Court to 12 months’ supervision in relation to two charges of intimidation1 and one charge of possession of an offensive weapon.2 Judge Walker made a protection order naming Mr Waterman as the respondent and his former partner (the victim) as the protected person.3 Mr Waterman appeals solely against the imposition of the protection order.
1 Summary Offences Act 1981, s 21(1)(a).
2 Crimes Act 1961, s 202A(4)(b).
3 Police v Waterman [2021] NZDC 16960.
WATERMAN v POLICE [2021] NZHC 3083 [16 November 2021]
Background
[2] On 1 August 2021, Mr Waterman was at home with his (former) partner and grandmother. At about 1.30 pm, Mr Waterman became upset that he had broken his phone screen. He left the address for a short time to calm down. When he returned he again became angry. He picked up a crowbar and proceeded to smash his own vehicle which was parked in the driveway. He threatened to smash partner’s vehicle and a caravan but decided not to follow through on those threats.
[3] When the Police arrived, Mr Waterman was in the caravan with his partner. When asked to come out he was holding the crowbar. Upon seeing the Police, he put the crowbar on the ground and was placed under arrest.
District Court decision
[4] Judge Walker canvassed the facts of the offending and referred to matters raised in the pre-sentence report before concluding that a sentence of 12 months’ supervision was appropriate in the circumstances.
[5] Mr Waterman opposed the application for a protection order that was sought on behalf of his former partner. The Police stated the victim had made a statement since Mr Waterman had breached bail. The Judge noted there had allegedly been another recent incident that involved Mr Waterman in further possessive and controlling behaviour. The victim’s view, that there was a difficult cocktail of issues involving Mr Waterman’s drug addiction and impulsive behaviour, was noted by the Judge.
[6] The Judge referred to a victim impact statement from Mr Waterman’s partner where she said there was an escalation in anger and control leading up to the incident. The Judge concluded a protection order was appropriate and made that order.
Principles on appeal
[7] 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 there has been an error in the imposition of the sentence and that a different sentence should be
imposed.4 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”.5 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.6
Submissions
Appellant’s submissions
[8] Mr Ross, for Mr Waterman, submitted the District Court Judge failed to provide adequate reasons to support the conclusion that a protection order was necessary. It was submitted the Judge did not assess why the protection order was required moving forward.
[9] Mr Ross submitted the Court must be satisfied that the order is necessary for the protection of the victim, which entails a future-focus inquiry. He submitted the index offending is relevant and, by itself, did not warrant a protection order. He contended the offending was at the lower end of the scale and the threat was primarily to property. Mr Ross contended it is significant that the victim did not fear for her safety.
[10] It was submitted that the circumstances in which Mr Waterman breached his bail did not justify the imposition of a protection order. The breach occurred as Mr Waterman breached the non-association condition. Mr Ross explained the victim initially approached Mr Waterman, then he approached her asking her to drive him to his grandmother’s address. During the trip, Mr Waterman took issue with the victim using her cell phone. The victim dropped him off and subsequently made a statement to the Police which resulted in Mr Waterman being arrested and held in custody. No charges were laid.
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
6 Ripia v R [2011] NZCA 101 at [15].
[11] Mr Ross noted the victim impact statement was made after the breach of bail incident and submitted it contains broad allegations that lack specificity.
[12] Mr Ross submitted Mr Waterman’s history is relevant, in particular that there is no evidence of Police call outs or Police Safety Orders. The parties have no children and live in separate houses.
Respondent’s submissions
[13] The respondent’s position is the District Court Judge had ample evidence before him to determine that the protection order was necessary for the protection of the victim. In particular, the respondent points to Mr Waterman’s untreated issues involving substance abuse and propensity for violence. It is submitted the unpredictability and instability of Mr Waterman’s state of mind due to the untreated methamphetamine addiction, coupled with a propensity for violence, meant the protection order was necessary for the victim’s on-going protection.
Analysis
[14] The following four criteria set out in s 123B of the Sentencing Act 2002 must be established before a protection order can be made:
(a) the offender is convicted of a family violence offence;
(b) there is not currently a protection order in force;
(c) the making of the protection order is necessary for the protection of the victim; and
(d) the victim does not object to the making of the order.
[15] Three of the four criteria are not in dispute. The only issue on appeal is whether the protection order was necessary for the protection of the victim.
[16] The inquiry into whether a protection order is necessary does not need to be overly refined, nor is an extensive discussion of the necessity for the order required.7 Determining whether an order is necessary is an evaluative exercise, rather than a weighing of the factors for and against the order.8 The court should provide reasons for the conclusion that the order is necessary.9
[17] I note the fact the assault charges were under the Summary Offences Act 1981 does not detract from the need for a protection order.10
[18] The pre-sentence report records that Mr Waterman was coming down from a methamphetamine high at the time of the offending. The report writer records Mr Waterman was angry at breaking his phone and wanted to blow off steam, so he took to his own vehicle with a crowbar.
[19] Mr Waterman has struggled with alcohol and drug use from a young age and is recorded as having been “bounced” from one family member to another. He agreed with the report writer that he would benefit from alcohol and drug counselling. The report writer recorded Mr Waterman was “sorry for relapsing and frightening his partner and grandmother”.
[20] The Judge thus had evidence that, at the time of the offending, Mr Waterman was regularly using methamphetamine. The Judge was entitled to take judicial notice of the fact that use of that drug could cause the user to behave erratically, irrationally and violently.
[21] Mr Waterman has one family violence conviction for assault in 2019. As such, the offending that resulted in the charges does not appear to be part of a lengthy pattern of behaviour. However, two days before his sentencing, Mr Waterman breached his bail by contacting the victim and by entering Tapanui. In explanation, Mr Waterman said he could not be without the victim and had nowhere else to go. The fact he breached bail so close to his sentencing showed how difficult it is for Mr Waterman
SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [22]; Broderick v Police [2014] NZHC 133,
[2014] NZFLR 406 at [21], see also Taylor v Police [2018] NZHC 1377 at [13] and Ogle v Police
[2021] NZHC 1646 at [22].
8 SN v MN, above n 7, at [24(f)].
9 Ofisa v Police [2017] NZHC 2157.
10 Taylor v Police, above n 7, at [19].
not to act emotionally to the stress of the situation he is in, even when he knows he is not allowed to and the victim did not agree to what he was doing.
[22] Mr Waterman’s counsel referred to the victim’s statement of 17 August 2021 as to the breaches of bail. In that statement, the victim said she did not wish to continue with the relationship. Although she said in the later victim impact statement she did not fear for her safety, in the statement to the Police of 17 August 2021, the victim said Mr Waterman had been abusing drugs and alcohol “and this causes him to be unpredictable”. She said “I am fearful of what he might do because he can get very angry and emotional when he’s in this state”.
[23] In a victim impact statement made to the Police following the breaches of bail, the victim said “there are many times that he has yelled at me and scared me”. She stated the “latest incident [the index offending] was reported to Police as it was the most violent and we needed help”. The victim said Mr Waterman’s anger escalated during their 10 month relationship and he had been increasingly controlling leading up to the incident.
[24]In her victim impact statement of 18 August 2021, the victim said:
I want a protection order as his behaviour is just getting worse and I can’t control him. Im worried that he will continue to turn up at my house and my work as he has done this while on a non-contact bail condition and I believe he will keep doing that. I don’t want him to come near me.
[25] Mr Waterman’s explanation for the breach of bail close to the sentencing indicated he wanted to continue having contact with the victim and had not accepted that his relationship with her was over.
[26] So, the Judge had information as to the state of the parties’ relationship and the victim’s fears and needs which also established the making of a protection order was necessary.
[27] It is evident from the information before the Court that Mr Waterman struggles with drug and alcohol misuse. Indeed, he has agreed that he would benefit from counselling for these issues. The victim had said she wanted the Judge to know that Mr Waterman needed drug counselling and help for his mental health. Fortunately, to
date, there has not been actual physical violence against the victim. Nevertheless, there is a risk of that. Mr Waterman was convicted in July 2019 of an assault by way of family violence committed in April 2018 and for a common assault committed in December 2017.
[28] I accept the respondent’s submission that, without the protection order, there are no protective factors in place to protect the victim. It is expected that, with the supervision sentence, Mr Waterman will have to attend stopping violence programmes and a drug abuse rehabilitation programme but, at the time the order was made, Mr Waterman had not commenced drug and alcohol counselling or the non-violence programme. Although it is to be hoped that Mr Waterman’s engagement in rehabilitation programmes will bring about significant change, there can be no guarantee this will happen. A sentence of intensive supervision with conditions was imposed after the earlier family assault but, within three months, Mr Waterman had to be re-sentenced for breaching the conditions of that sentence.
[29] In my view, the District Court Judge was correct to find that the protection order was necessary to ensure the safety of the victim from future violence.
[30] I also consider that, in his discussion as to the background to the incident, the circumstances of the offending, the recent breach of bail and to the victim saying she needed a protection order, the Judge did give adequate reasons for his finding that the making of a protection order was necessary.
[31] As noted by the District Court Judge, the protection order will remain in force until Mr Waterman or the victim apply to the Family Court for the discharge of that order on the ground that it is no longer necessary for the protection of the victim.
Conclusion
[32]Mr Waterman’s appeal is dismissed.
Solicitors:
Montrose Chambers, Invercargill PR Law, Invercargill.
0