Wheeler v The Queen

[2019] NZHC 914

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-073

[2019] NZHC 914

BETWEEN

CHRISTOPHER WHEELER

Appellant

AND

THE QUEEN

Respondent

Hearing:	29 April 2019
Appearances:	S Walker for Appellant S Navot for Crown
Judgment:	29 April 2019

ORAL JUDGMENT OF TOOGOOD J

WHEELER v R [2019] NZHC 914 [29 April 2019]

Introduction

[1]On 6 November 2018, Christopher James Wheeler pleaded guilty to:

(a)one representative charge of assault with intent to injure;1

(b)one charge of injuring with intent to injure;2 and

(c)two charges of breaching a protection order.3

[2]        On 8 February 2019, Judge R G Ronayne sentenced Mr Wheeler to two years and three months’ imprisonment,4 and Mr Wheeler now appeals that sentence.

The offending

[3]        Mr Wheeler was in a relationship with the complainant, T, for approximately two years. At the time of the offending they were living together. On 12 April 2017, a temporary protection order had been issued against Mr Wheeler in T’s favour.

[4]        On 31 January 2018, Mr Wheeler and T were at home together. Mr Wheeler was intoxicated and acting aggressively. He grabbed T by the hair, dragged her to the couch and repeatedly smashed her head against it.

[5]        Mr Wheeler told T that if she went to the Police he was going to “do something”. He then punched himself repeatedly in the right eye, causing it to bruise. Mr Wheeler threatened to tell the Police that T had caused that injury.

[6]        On 2 February 2018, Mr Wheeler  and T  were  at  home  together.  Again, Mr Wheeler was intoxicated. He and T began to argue about Mr Wheeler’s failure to contribute towards bill payments.

1      Crimes Act 1961, s 193; the maximum penalty is three years’ imprisonment.

2      Section 189(2); the maximum penalty is five years’ imprisonment.

3      Domestic Violence Act 1995, s 49; the maximum sentence is three years’ imprisonment.

4      R v Wheeler [2019] NZDC 2131.

[7]        Mr Wheeler became incensed. He grabbed T by the throat and threw her onto the bed. As he continued to apply pressure to T’s throat, Mr Wheeler told her that he could kill her. He then released her throat, instead covering her mouth and nose so that she was unable to breathe.

[8]        These two incidents make up the representative charge of assault with intent to injure and one of the breaches of the protection order.

[9]        The narrative resumes immediately afterwards, still on the same date. T told Mr Wheeler to leave and in response, he punched her to the right eye with the palm of his hand, causing her to fall backwards.

[10]      That offending makes up the injuring with intent to injure charge and the other breach of the protection order.

[11]      T suffered a bruised and swollen right eye; back pain; bruising to her shoulder, arm and buttocks; and a cut to her lip. These injuries resulted from repeated violence which might have resulted in even more serious consequences. It is no surprise to learn that T and Mr Wheeler are no longer in a relationship.

Personal factors

[12]      Mr Wheeler is now 52 years old. Between 1987 and 2012 he accumulated three convictions for driving with excess alcohol, one conviction for operating a motor vehicle carelessly and one conviction for theft by a person in a special relationship. Those convictions are largely historic and unrelated to the index offending.

[13]      Mr Wheeler, however, has comparatively recent prior convictions for violent offending against T. They are:

(a)on 23 January 2015, breach of a protection order;

(b)on 19 May 2015, common assault;5

5      Crimes Act 1961, s 196; the maximum penalty is one year’s imprisonment.

(c)on 22 May 2015, common assault; and

(d)on 29 June 2016, two charges of assault with intent to injure.

[14]      On 12 April 2017, Judge J Jelas sentenced Mr Wheeler to eight months’ home detention in respect of the 2016 offending, with a further eight months’ post-release conditions.6 The Judge described the offending as follows:

[2] … [B]oth you and the victim… consumed a significant amount of alcohol…. The assault was you throwing your partner on the ground and slapping her face, slamming her head on the floor up to four times, placing your hands around her throat and threatening to kill her. At one point you continued to strangle her to the point she was rendered unconscious.

I will return later to discuss the significance of this offending and the sentence imposed.

[15]      Mr Wheeler was subject to electronically  monitored  bail  (EM  bail)  from 28 March 2018 for a period of around 10 months. This time passed without incident. Mr Wheeler’s counsel, Mr Walker, says that while on EM bail Mr Wheeler took the following steps to address the causes of his offending:

(a)Attending alcohol counselling sessions and AA meetings.

(b)Attending three sessions with Stopping Violence Southland.

(c)Gaining fulltime employment with a renovation company.

(d)Gaining a Class 5 truck licence.

(e)Studying towards a diploma in psychology with the Open Polytechnic.

[16]      Mr Wheeler also expressed a willingness to engage in restorative justice, but T was not open to this course.

6      Police v Wheeler [2017] NZDC 7838.

Judge Ronayne’s decision

[17]      Judge Ronayne took an orthodox approach to determining the appropriate end sentence, applying the relevant guideline judgments.7

[18]      In assessing a sentence starting point relative to the seriousness of the offending, the Judge noted the following aggravating factors:8

(a)The extent of the violence and the threatened violence: the “overwhelmingly terrifying” threat to kill; the strangulation; the blows to the head; the obstruction of the complainant’s airways; the unprovoked nature of the violence; the two discrete incidents; and the fact that the offending took place while Mr Wheeler was subject to release conditions for other offending against the complainant.

(b)The harm caused: the physical injuries and the emotional harm caused to the complainant; she describes feelings of fear, anxiety and guilt for allowing Mr Wheeler back into her life.

(c)The vulnerability of the victim: the offending occurred in her own home and despite a protection order she held against Mr Wheeler.

[19]      In relation to this last point, the Judge referred to the following comments of the Court of Appeal in Solicitor-General v Hutchison, which are germane:9

[27] Family violence has become one of the scourges of New Zealand society. The family home is a place where an occupant is entitled to feel, and be, safe. The courts have repeatedly emphasised the importance of respect for the sanctity of the home. As we noted almost 20 years ago, “Conduct of this kind affects the sense of security of the whole community.” Violence occurring in the complainant’s home will normally be an aggravating factor for sentencing purposes. That may be because of home invasion, but it does not depend on external intrusion of that kind. Breach of an intangible trust may be just as significant as the breach of a physical boundary. Co-occupation as a family unit involves a social contract of mutual care and nurture. Necessarily it also involves inherent vulnerability to opportunistic breach of that social contract when physical violence is employed. One cannot

7      R v Taueki [2005] 3 NZLR 372 (CA) and Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

8      At [15]-[22].

9      Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420.

realistically or effectively lock the door against a co-occupant. Where the victim is a family member, dependent on the offender for emotional and physical support, the alternative aggravating factor of vulnerability almost inevitably will be triggered. It would be a rare case of family violence where that was not so.

(Citations omitted)

[20]      Judge Ronayne placed Mr Wheeler’s offending between band 2 and 3 of Nuku v R.10 He adopted a starting point of two years and six months’ imprisonment for the violence charges.

[21]      The Judge then imposed what he described as a “significant uplift” of six months for the breaches of the protection order.11 Taking into account Mr Wheeler’s previous offending against the same complainant, Judge Ronayne thought, therefore, that a sentence starting point of three years’ imprisonment was justified.12

[22]After that, the Judge applied the following discounts:

(a)two months for time spent on EM bail;

(b)one month for remorse;

(c)one month for rehabilitative efforts; and

(d)15 percent for guilty pleas.

[23]This led to an end sentence of two years and three months’ imprisonment.

The appeal

[24]The grounds of Mr Wheeler’s appeal advanced by Mr Walker are threefold:

(a)the starting point was too high.

(b)the discount for time spent on EM bail was too low; and

10     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].

11 At [24].

12 At [25].

(c)the discount for his rehabilitative efforts was insufficient.

[25]      Ms Navot, appearing for the Crown, acknowledges that Judge Ronayne could have given Mr Wheeler a greater discount for his rehabilitative efforts if his submissions were accepted. Counsel says, however, that the Judge would have been entitled to impose an uplift to reflect his previous convictions. By whatever means the end sentence was reached, the Crown submits it was within the available range and not manifestly excessive.

Discussion

[26]      I must allow Mr Wheeler’s appeal if I am satisfied that there is an error in the sentence appealed from such that a different sentence should be imposed.13 Ultimately, the focus is on the sentence imposed, rather than the process by which the sentence is reached.14

Starting point

[27]      Mr Walker raises two principal issues with the starting point arrived at by Judge Ronayne.

[28]      First, he submits that the injuries sustained by the complainant were moderate at most, rather than severe, and he points to the photos of T to support this. But as I understand the Judge’s sentencing notes, he did not appear to classify T’s injuries as severe. Rather, he described the nature and extent of the violence against her as “moderately high”.15 While the Judge described the detail of T’s physical injuries, he did not place undue emphasis on them when coming to a starting point. The focus was on the significant emotional harm inherent in family violence16 and the particular seriousness of the nature of the offending, given that it included strangulation.17

13     Criminal Procedure Act 2011, s 250(2).

14     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

15 At [17].

16     At [18] and [21].

17 At [16].

[29]      Mr Walker’s second point of contention involves, in my view, an even more unattractive proposition. He argues that the sentencing Judge should have been more “even-handed  and circumspect” when viewing the overall context and  history of  Mr Wheeler’s relationship. He points out that Mr Wheeler had no convictions for violence prior to meeting the complainant. Moreover, the 2016 offending revealed that both he and the complainant were drinking heavily. This is something corroborated by Mr Wheeler in the pre-sentence report, where he also described his relationship with the complainant as “toxic”. A letter provided by Mr Wheeler’s mother describes his offending against the complainant as “uncharacteristic”. Finally, Mr Walker argues that Mr Wheeler spent the 10 months on EM bail at the address of his former partner, with whom he has a daughter, and that that time passed without incident.

[30]      I reject what may well be inferred as the thrust of Mr Walker’s submission in this regard. If his point is that T was partially responsible for Mr Wheeler’s offending or otherwise goaded him into assaulting her, there is no evidential basis for it; and in argument before me this afternoon Mr Walker said he was not submitting there was any element of provocation. More importantly, however, such a submission would be entirely at odds with a responsible understanding of the causes and effects of family violence.

[31]      If Mr Walker’s submission was taken to be that, other than the offending against T, Mr Wheeler has not demonstrated a tendency to act violently, that is a factor more appropriately taken into account after the determination of the sentence starting point. The fact that Mr Wheeler might have enjoyed a healthy relationship with another former partner does not render what he did to T any less serious; nor does it make him any less culpable.

[32]     Mr Wheeler’s offending, in my assessment, falls towards the top end of band 2 of the guideline judgment in Nuku v R. That is on the basis that there were at least three of the aggravating factors identified in R v Taueki which are incorporated into the Nuku considerations.18 I venture to think, however, that, in considering the Taueki

18     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].

and Nuku factors, the courts might in due course expressly recognise the particular prominence recently given by Parliament to condemning strangulation as part of family violence and other offending.19 The Crown's submissions cite the Law Commission's 2016 Report in saying that20

… it is said that abusers do not strangle to kill but to show that they can kill. In the context of intimate partner violence, it is arguably this element of strangulation that makes it a unique tool of coercion and control apt to traumatise its victims long after the assault has ended. Perhaps unsurprisingly, strangulation is often accompanied by threats to kill.

[33]      As the Crown submits, it is only recently that the real risks associated with strangulation have been identified, and it may well be that strangulation will come to be regarded as a discrete aggravating factor when considering into which band of offending the particular facts of a case might be placed. I note in this case that strangulation was, indeed, accompanied by threats to kill.

[34]      In such circumstances, Judge Ronayne’s assessed staring point of two years and six months’ imprisonment, to reflect seriousness and culpability, was well available to him.

[35]      The sentence of eight months’ home detention imposed in April 2017 might be regarded as lenient, given that the offending involved multiple violent assaults; offending while on bail pending trial for violent offending and the element of strangulation. It is clear, however, that Mr Wheeler learned nothing from the approach taken at the earlier sentencing, which might have been intended to encourage him to reform. Moreover, the Court-imposed sanction of a protection order designed to protect T was disregarded, and it does not assist much that Mr Wheeler was in the home with T's consent.

[36]      In the circumstances, a six-month uplift was the least that was appropriate to denounce the breach of the protection order and to reflect the need for additional denunciation, accountability and deterrence. An even greater uplift to the initial

19   See Crimes Act 1961, s 189A inserted from 3 December 2018 by the enactment of s 24 of the Family Violence (Amendments) Act 2018. The specific offence of strangulation or suffocation carries a maximum penalty of seven years’ imprisonment.

20     Law Commission Strangulation (NZLC R138, 2016) at 2.16.

starting sentence might have been considered appropriate to reflect Mr Wheeler’s prior history of violence towards T.

The appropriate discounts

[37]      I turn to the discounts for personal factors. As to the time spent on EM bail, Judge Ronayne said:

[26] … you have spent around 10 months on electronically-monitored bail. That is so but equally you have worked full-time and you have studied while on electronically-monitored bail so I take the view that the restriction has not been great for at least part of that remand period…. [I]t is my view that a two month discount from that starting point would be appropriate to reflect the fact that you have been on EM bail and you have not breached.

[38]      Mr Walker argues that Mr Wheeler’s EM bail conditions were relaxed only midway through the 10-month period. He submits further that the efforts undertaken by Mr Wheeler to reform himself were not given adequate recognition but, rather, used by the Judge as reasons why the time Mr Wheeler spent on EM bail was not so onerous. Mr Walker says his client should have received a discount of at least four months for this factor, with a further three-month discount for his rehabilitative efforts.

[39]      The time spent on EM bail is a mitigating factor that the Court must take into account, considering the period of time spent on bail, the restrictiveness of the conditions, the level of compliance and any other relevant matters.21 There is no arithmetic formula to be applied.22 I note that the Court of Appeal recently commented that a discount of four to six months is potentially available for 12 months spent on EM bail where the conditions are restrictive and there has been compliance with the terms.23 The appropriate level of discount, however, is to be determined on the particular facts of each case. I accept that a portion of the time Mr Wheeler spent on EM bail was subject to the usual restriction of daytime confinement and that he complied with the conditions of EM bail without incident. The Judge considered those matters.

21     Chea v R [2016] NZCA 207 at [108].

22 At [110].

23     R v R [2017] NZCA 210 at [14].

[40]      Giving a discount for engaging in rehabilitative measures is not mandatory; it falls within a sentencing Judge’s discretion.24 While a discount may be allowed to recognise a defendant’s efforts towards rehabilitation, mitigating personal circumstances and strong family support, they are factors properly left for the sentencing Judge’s assessment. A discount may be refused if the defendant has an extensive criminal history.25 Although Mr Wheeler’s relevant criminal history is relatively short, it is significant and concerning in the context of the index offending.

[41]      I am not persuaded that the Judge made any error in his approach to the giving of discounts.

Conclusion

[42]      It follows that I am more than satisfied that the end sentence arrived at by the Judge was well within the range available and was not manifestly excessive.

Result

[43]I dismiss the appeal.

...................................................

Toogood J

24     Ross v Police [2015] NZHC 1633 at [42].

25 At [43].