Watson v Police
[2023] NZHC 1681
•3 July 2023
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2023-412-15
[2023] NZHC 1681
BETWEEN JAMES RICHARD WATSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 June 2023 Appearances:
B P Stephenson for Appellant C J Flatley for Respondent
Judgment:
3 July 2023
JUDGMENT OF EATON J
This judgment was delivered by me on 3 July 2023 at 3 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
WATSON v NEW ZEALAND POLICE [2023] NZHC 1681 [3 July 2023]
Introduction
[1] Mr Watson was sentenced to 28.5 months’ imprisonment by Judge Turner in the District Court1 in respect of the following charges:
(a)threatening behaviour;2
(b)dangerous driving;3
(c)kidnapping;4
(d)assault on a person in a family relationship;5 and
(e)attempting to pervert the course of justice.6
[2] Mr Watson appeals this sentence on the grounds the Judge did not allow sufficient credit for mitigating factors.
Facts
[3] Mr Watson is the former partner of the victim. They did not live together at the time of the offending, and the relationship was described as “off-and-on again” over a period of about two years. The victim has a young daughter from a previous relationship.
[4] In October 2021, Mr Watson was discharged without conviction following his guilty plea to a charge of assaulting the same victim. On 23 November, he contacted the victim, wanting to visit her home. The victim said no. At around 5 pm, Mr Watson arrived at her address. Mr Watson let himself in and began abusing her, threatening to kill her. He made as if to punch her while she was holding her daughter. He did not
1 R v Watson [2023] NZDC 1717.
2 Summary Offences Act 1981, s 3; maximum penalty 3 months’ imprisonment.
3 Land Transport Act 1998, s 35(1)(b); maximum penalty 3 months’ imprisonment or a fine not exceeding $4,500. The court must also order the person to be disqualified from holding or obtaining a driver licence for at least 6 months.
4 Crimes Act 1961, s 209; maximum penalty 14 years’ imprisonment.
5 Crimes Act, s 194A; maximum penalty 2 years’ imprisonment.
6 Crimes Act, s 117(e); maximum penalty 7 years’ imprisonment.
leave for two to three hours. That incident gave rise to the threatening behaviour charge.
[5] About six weeks later, on the night of 7 January 2022, the victim and her daughter were driving. Mr Watson saw them and attempted to run their vehicle off the road, causing the victim to pull over. He approached her vehicle and began banging aggressively on the driver’s window until the victim unlocked the door. He then removed the keys from the ignition and took the victim’s cell phone. After parking his own car, Mr Watson returned to the victim’s vehicle with a beer bottle. He hit her on the arm with the bottle before handing her keys back and demanding she drive them to her home. Once there, Mr Watson told the victim to go shower while he watched her. He would not allow her to leave the address and grabbed her arm when she attempted to press the family harm alarm. He spent the night at the victim’s home. In the morning, he told her to drop him to his vehicle. These events led to the charges of dangerous driving, assault on a person in a family relationship, and kidnapping.
[6] Whilst on electronically-monitored bail, Mr Watson provided the Crown, through his counsel, screenshots of Facebook messages which were allegedly sent by the victim and were retractions from her complaints to Police. After speaking to the victim and gaining a production order in respect of her cell phone, Police found over 500 instances of Mr Watson contacting the victim between 19 February 2022 and 8 June 2022. These instances of contact included abuse, pleading for her not to go to Police, and threats about not going to Police.
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 that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.8 In making this assessment, appellate courts do
7 Criminal Procedure Act, ss 250(2) and 250(3).
8 Ripia v R [2011] NZCA 101 at [15].
not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.
District Court Decision
[8]Mr Watson was sentenced after accepting a sentencing indication.
[9] Judge Turner took the kidnapping charge as the lead offence. Observing there is no tariff case in sentencing for kidnapping, the Judge identified that this offence occurred in a domestic context and the duration of the offending was substantial, some 11 hours. The offending occurred primarily in the victim’s own home. During the kidnapping, the victim was subjected to a lower-level assault when she attempted to leave. The offending also took place in the presence of a young child. The Judge accepted that there was no evidence of premeditation or planning. A starting point of two years’ imprisonment was adopted.
[10] A one-month uplift was applied on the threatening behaviour charge. The dangerous driving and assault charges attracted an uplift of three months. The Judge recognised the “sustained and determined” effort by Mr Watson to get the victim to retract her complaint to Police which involved a mixture of manipulative techniques. The Judge characterised this as a serious attempt to pervert the course of justice and applied an uplift of 10 months’ imprisonment. The uplifts were applied having regard to the totality principal.
[11]The adjusted starting point was 38 months.
[12] A 10 per cent uplift was applied to reflect that the offending occurred while Mr Watson was on bail for a family harm matter involving the same victim and that Mr Watson had relevant, if “somewhat aged”, convictions.
[13] A 20 per cent discount was provided for Mr Watson’s guilty plea. As to background matters, the Judge considered much of the content in the s 27 report involved self-reporting, and concerns raised about mental health came from an unqualified source. The alcohol and drug clinician viewed Mr Watson as unclear in his rehabilitative desire, and the author of the pre-sentence report observed Mr Watson
had not taken advantage of previous rehabilitation opportunities. While Mr Watson said he was considering a residential programme, this was assessed as somewhat equivocal. The pre-sentence report noted Mr Watson had a sense of entitlement and a lack of insight into the present offending. Mr Watson had written a letter of remorse from prison shortly before sentencing.
[14] The Judge accepted alcohol and drugs had interfered with many aspects of Mr Watson’s life. A 15 per cent discount was allowed to reflect Mr Watson’s personal background, rehabilitative prospects, and remorse. The Judge characterised this discount as generous.
[15] Because the perverting the course of justice occurred over the period Mr Watson was remanded on EM bail, no reduction was allowed to reflect the restrictions of EM bail.
[16] The Judge disqualified Mr Watson from holding or obtaining a driver licence for one year. A protection order was made against him.
Submissions
Appellant submissions
[17] First, Mr Stephenson, for Mr Watson, submits a 20 per cent (rather than 15 per cent) credit was appropriate to reflect personal background matters.
[18] Mr Stephenson submits that self-reporting may establish relevant personal background matters as a cause of the offending. He acknowledges much of the s 27 report does rely on self-reporting but observes that Mr Watson’s father has corroborated his son’s drug addiction. Further, the alcohol and drug report tested Mr Watson and found him to be at a “severe level for drug abuse”.
[19] Counsel contends Mr Watson’s methamphetamine addiction, having escalated to further heights following relationship difficulties, contributed to a loss of behavioural control. Mr Stephenson says the offending has the mark of a man losing emotional regulation. He argues the methamphetamine addiction, and the impact it
had on Mr Watson’s behaviour, diminishes his moral culpability such that a 20 per cent discount is warranted.
[20] Next, Mr Stephenson submits the Judge erred in not allowing a five per cent discount for remorse and rehabilitation. He relies on Mr Watson’s letter of remorse and says it demonstrates an insight by Mr Watson into how certain factors led to his offending. In it, Mr Watson is said to reflect on the gravity of his offending and the impact it must have had on his victim. As to rehabilitation, Mr Stephenson noted Mr Watson has begun counselling, and a letter from a rehabilitation provider spoke to his motivation to make changes in his life.
[21] Finally, Mr Stephenson points to s 9(2)(h) of the Sentencing Act in support of the submission the Judge erred in refusing to allow a credit for time spent on EM bail. He submits the primary driver for the 10 per cent uplift to the starting point was Mr Watson’s offending on bail, rather than his previous convictions. Mr Stevenson submits that the refusal to allow a credit for time spent on bail amounts to double counting of the offending on bail factor.9 Mr Watson spent three months and three weeks on EM bail, and Mr Stephenson seeks a five per cent discount.
[22] Overall, counsel proposes an additional 15 per cent credit, leading to a net discount of 40 per cent to the starting point of 38 months and an end sentence of 23 months’ imprisonment. It is not suggested that a sentence of home detention is appropriate.
Respondent submissions
[23] Ms Flatley submits the final sentence was within the range available to the Judge, and the appeal should be dismissed.
[24] As to addiction and background, Ms Flatley argues that in Berkland v R,10 a 10 per cent discount was provided for addiction and background in circumstances where Mr Berkland presented with a full suite of criminogenic factors which were closely causally connected to his offending. In the present case, she submits there is
9 Citing and distinguishing Beckham v Police [2018] NZHC 324.
10 Berkland and Harding v R [2022] NZSC 143, [2022] 1 NZLR 509.
not a direct nexus between background and offending. While Ms Flatley acknowledges Berkland does not operate as a ceiling on available discounts, and earlier cases provided more substantial credits, she submits it has tempered discounts in this area. Ms Flatley says Mr Watson has not demonstrated the role alcohol and methamphetamine use played in the offending, particularly the attempt to pervert the course of justice. Mr Watson’s sustained offending cannot be characterised as the erratic behaviour of a person labouring under addiction.
[25] Ms Flatley submits the Judge recognised the rehabilitative efforts made and remorse demonstrated by Mr Watson in the umbrella discount provided. The information before the Judge was equivocal as to Mr Watson’s motivation to rehabilitate and the extent to which he was genuinely remorseful. She says his breach of bail conditions and offending while on EM bail undermine any rehabilitative prospects. She highlights Mr Watson was discharged without conviction in respect of family violence offending on 21 October 2021, not long before the first incident of the present offending took place.
[26] As to the credit for time spent on EM bail, Ms Flatley says this is a matter of discretion informed by all the circumstances.11 She says Judge Turner’s approach did not amount to double punishment. Mr Watson was only on EM bail for just under four months, and he had previously been on bail simpliciter before that was reassessed following the kidnapping offending. Ms Flatley contends any excesses or double counting in the Judge’s approach to the bail offending are cured by the uplift of only 10 months for the perverting the course of justice charge (which was the offending which occurred while on EM bail), in circumstances where the Judge considered a two-year starting point would have been available if it was a standalone charge. Ms Flatley submits any discount for time spent on EM bail would be tinkering and would lessen the deterrent effect emphasised by the Judge.
11 Citing Rawiri v Police [2023] NZCA 171 at [25], referring to Chea v R [2016] NZCA 207 at [110].
Analysis
Personal background
[27] The s 27 report records Mr Watson’s report that he had an unstable childhood involving erratic schooling, errant behaviour, poverty, and abuse from men his mother associated with. He abused alcohol and cannabis before developing a methamphetamine addiction. His father and the Alcohol and Drug report confirm Mr Watson’s addiction. The s 27 report writer identified a link between a traumatic upbringing and substance abuse, as well as a general link to antisocial behaviour.
[28] I accept there is a link between Mr Watson’s background and development of a methamphetamine addiction. While I accept Mr Watson was abusing methamphetamine at the time of this offending, he has not demonstrated a strong causative link between his addiction and the offending. His addiction is longstanding. However, his criminal history is limited to a careless driving offence in 2009 and an assault with intent to injure in 2014. That tells me his addiction is not one that has a strong association with offending. The current offending appears to be driven by a sense of entitlement and an unhealthy attitude within personal relationships. I accept Mr Watson’s primary attachment relationships were disrupted in his childhood. In my view, there is a connection between his background and his offending. Although that link was not expressly recognised by the Judge, I consider the 15 per cent discount adequately reflected all personal background factors.
Remorse and rehabilitation
[29] The Judge did not allow a discrete discount to reflect remorse and rehabilitation, instead packaging it within the umbrella discount for personal matters. The reports before the Judge described Mr Watson as equivocal as to rehabilitation and lacking insight into his offending. I accept the letter he wrote expresses remorse. Further, it is encouraging to read in the s 27 report that Mr Watson has taken ownership of his behaviour since being in prison, has found peace within himself, and is motivated to turn his life around. It was open to the Judge to allow a small credit for remorse and rehabilitation. Another Judge might well have done so. I am not persuaded that it was an error not to allow a credit.
Bail considerations
[30] The Judge applied a 10 per cent uplift for offending while on bail and the “somewhat aged” convictions. The Judge then declined to allow a credit under s 9(2)(h) of the Sentencing Act to recognise the three and a half months Mr Watson spent on EM bail. Mr Stephenson submits this approach gave rise to double counting.
[31] That submission assumes the uplift was a response to the offending while on EM bail. It was not. The Judge said in the sentencing indication:
You were on bail at the time of the offending for a family harm violence matter involving this complainant. The offending occurred in breach of that bail. That is a serious aggravating factor.
(emphasis added)
[32] The Judge did not factor the offending while on EM bail into the uplift. There was no double counting. The reference to the family harm violence matter was an error. That charge had been resolved in October 2021. It is likely the Judge intended to refer to offending while on bail on the threatening to kill charge (the January offending).12 Mr Stephenson did not challenge the uplift on appeal. Nevertheless, I think it necessary to consider whether the 10 per cent uplift was excessive. To do so, I summarise Mr Watson’s relevant bail and offending history.
[33] On 21 October 2021, Mr Watson was discharged without conviction for a family harm violence offence against the victim. He then offended against the victim on 23 November 2021. He was granted bail simpliciter. On 7 January, while on bail, Mr Watson committed the offences of kidnapping, dangerous driving and assault, all targeted at the same victim. Mr Watson was arrested and remanded in custody for just over a month before being granted EM bail on 18 February 2022. It is accepted that Mr Watson was present at the EM bail hearing and that the Judge emphasised the conditions of EM bail, including a prohibition on contact, were necessary to protect the victim. The day following his release, Mr Watson breached the conditions of EM bail in texting the victim. Over the following three and a half months, Mr Watson
12 After the sentence indication hearing that charge was reduced to a charge of threatening behaviour.
engaged in the extensive and abusive text messaging which gave rise to the perverting the course of justice charge. Mr Watson returned to custody on 13 June 2022.
[34] Mr Watson was convicted in 2014 of an assault with intent to injure. He was sentenced to supervision and community work. His only other conviction was a driving offence in 2009. I agree with Mr Stephenson that Mr Watson’s previous convictions did not justify an uplift. An uplift could only be justified for offending on bail. A ten percent up lift is stern but, putting to one side the offending while on EM bail, Mr Watson committed the offences of assault, kidnapping and dangerous driving against the same victim within a short time of being released on bail for threatening to kill the victim. In my view, the uplift was at the high level of the available range but was not excessive.
[35] The Judge did not err in refusing a credit for the time Mr Watson spent on EM bail. In considering a credit, the Court must have regard to an offender’s compliance with bail conditions.13 Mr Watson’s non-compliance throughout the period he was on EM bail negated any credit he might otherwise have been allowed.
Result
[36]The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Public Defence Service, Dunedin RPB Law, Dunedin
13 Sentencing Act 2002, s 9(3A)(c).
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