White v Police
[2020] NZHC 1535
•2 July 2020
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2020-425-000009
CRI-2020-425-000010 [2020] NZHC 1535
BETWEEN JAKE JAMES WHITE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 June 2020 Appearances:
K E Tohill for Appellant
R W Donnelly for Respondent
Judgment:
2 July 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 2 July 2020 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date 2 July 2020
Introduction
[1] Jake White pleaded guilty to three breaches of a protection order as well as charges of receiving stolen property and unlawfully getting into a motor vehicle. He was sentenced by Judge Turner to two and a half years’ imprisonment.1 Mr White now appeals that sentence on the basis that it was manifestly excessive.
1 Police v White [2020] NZDC 6094.
WHITE v NEW ZEALAND POLICE [2020] NZHC 1535 [2 July 2020]
Facts
[2] A temporary protection order was issued against Mr White on 1 June 2018 in respect of the victim, who is his former partner and the mother of his child. That order became final on 5 October 2018.
[3]On 16 October 2019, Mr White sent the following text message to the victim:
I will make sure my suicide note will make people look at you and make your life hell as you struggle as a single mum that drove your baby’s dad end it and take the ezy way out.
[4] On 7 December 2019, while remanded in Milton Prison, Mr White arranged for a text message to be sent to the victim saying she would receive a phone call from the prison. The victim replied that she would not answer. The following morning, the victim received two phone calls from the Milton area. She did not answer either. Later in the day she received a text saying “Jake asked if you could please answer”, and four minutes later she answered a call without realising it was from Mr White. They spoke for about 12 minutes before the victim ended the call.
[5] The third protection order breach arose when Mr White, on 4 April 2020, arranged for his father to contact the victim to make arrangements for him to see his child. Mr White’s father sent an email to the victim on 6 April relaying his message.
[6] Between 2 and 3 October 2019, a caravan was stolen from a property in Cromwell. In the early hours of 3 October, Mr White and an associate drove to a layby on the Cromwell/Alexandra highway and met up with two people who were in possession of the stolen caravan. Mr White attached the caravan to his car before driving south towards Roxburgh. The caravan has not been recovered.
[7] At around 3.30 am on 3 October, Mr White realised his vehicle had a flat tyre. He entered the driveway of a nearby property where he opened an unlocked door of a parked car. He took a toolbox from the car and removed some items, but left them in the vehicle after finding they were unsuitable for changing his flat tyre.
District Court decision
[8] Judge Turner noted that Mr White has previous convictions for family harm offending, including unlawful possession of a firearm, threatening to kill involving a firearm, injuring with reckless disregard and assault. The victim, in her impact statement, referred to the significant emotional and psychological consequences to her following receipt of Mr White’s text message on 16 October.
[9] For context, the Judge discussed the incidents which he understood resulted in the protection order being issued. On one occasion, Mr White put a shotgun in his mouth in front of the victim and their baby and threatened to kill himself. On another occasion, he video-called the victim and told her that if she did not reconcile with him, he would shoot himself. He raised a .22 rifle to his head and put the phone down. The victim heard a shot and then heard something dropping to the ground. About a minute later, Mr White picked up his phone and said: “See how you feel if I do it. Come home.” Judge Turner accepted that Mr White’s message of 16 October brought back those memories for the victim, and caused her significant emotional and psychological damage.
[10] The Judge referred to the pre-sentence report. He noted Mr White was serving a sentence of intensive supervision at the time of the offending, and that while his engagement with that sentence was described as excellent, he had also tested positive for methamphetamine use and committed the present offences. The Judge noted Mr White effectively blamed the victim for his offending, stating that she had “pushed [him] over the edge”. His risk of re-offending was assessed as medium, though the Judge considered it was “considerably higher” than that with regard to the victim. The Judge also noted that Mr White expressed to the report writer a desire to turn his life around and be a positive role model for his child.
[11] Judge Turner began by adopting a starting point of 10 months’ imprisonment for the receiving charge, taking into account Mr White’s unwillingness to assist in the recovery of the caravan and the consequences of the offending to the caravan’s owners. He uplifted that by three months for the charge of unlawfully getting into a motor vehicle.
[12] Turning to the protection order breaches, the Judge considered the text message of 16 October to be “plainly threatening in nature” and classed it as serious offending. He found there was significant psychological violence involved, and adopted a starting point of 14 months’ imprisonment for that breach. For the second breach, on a totality basis, he adopted a six-month starting point. For the third breach he added a further three months, resulting in a total starting point of 36 months’ imprisonment.
[13] The Judge uplifted that starting point by three months given the offending occurred while Mr White was on sentence for family violence, and four months given the protection order charges arose while he was either on bail or in custody and in breach of a condition not to contact the victim. He declined to impose an uplift for previous convictions given there were none of a similar nature to the current charges.
[14] In regard to mitigating factors, the Judge considered Mr White’s relative youth (he was 24 years old) and wish to rehabilitate, but balanced that against his lack of remorse and blaming of the victim. A five per cent discount was allowed. In addition, the Judge allowed a 25 per cent discount for guilty plea despite the case against Mr White being overwhelming. That resulted in an end sentence of two years and six months’ imprisonment.
Principles on appeal
[15] 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. 2 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”.3 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.4
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[16] Mr Tohill, for Mr White, primarily challenges the starting points adopted for the breach of protection order charges. He accepts that the first breach represented a serious form of psychological violence. Mr Tohill submits however that the breach was only a text message, and was not accompanied by the physical presence of Mr White. While the Judge made comments in regard to previous family violence towards the victim, none of those incidents were the subject of charges; Mr White’s previous convictions for family violence involved an altercation with his parents involving firearms, and not the victim.5
[17] To support his submission that the starting point was too high, Mr Tohill relies on Narayan v Police, in which Mr Narayan breached a protection order by going to the address of the victim at 3 am, obtaining a machete from the garden shed, and telling the victim that he wanted to kill himself.6 The next morning, Mr Narayan contacted his former wife from prison asking to speak to the victim and the children. The High Court upheld a starting point of 12 months’ imprisonment for the first breach, with a three-month uplift for the second. Mr Tohill submits that, based on Narayan, the appropriate starting point for the first breach in this case would be 12 months.
[18] In regard to the second and third breaches, Mr Tohill submits they were minor breaches and there is no indication they involved threats. He states that while Mr White was on remand at the Otago Corrections Facility, the victim sent him mail including clothes and slippers. Mr Tohill contends the second breach warranted a four-month starting point, and the third breach, which was a “technical” breach only involving contact by Mr White’s father, a one-month starting point.
[19] Mr Tohill then submits that the three-month uplift for “deterrence” was unwarranted, and the four-month uplift for offending while on remand was too high. He notes that the offending for which Mr White was serving sentence did not concern
5 This was confirmed by provision of the summary of facts for this offending which occurred in February 2018.
6 Narayan v Police [2014] NZHC 1241.
the victim, and that Mr White has since reconciled with his parents, who were the complainants in those charges. Mr Tohill further contends that the motivation behind these charges, as well as the 2018 charges, was Mr White’s addiction to methamphetamine, which, along with his lack of prior breaches or offending against the victim, suggests the four-month uplift was not justified. Mr Tohill submits a two-month uplift would be more appropriate.
[20] Finally, Mr Tohill submits that the charges of receiving and unlawfully entering a vehicle should not have attracted cumulative sentences. He notes that that offending occurred at the same time, and that while counsel does not wish to overturn the starting points taken for those charges, he submits that the Judge erred in his decision not to impose the three months’ imprisonment for unlawful entry concurrently with the 10 months’ imprisonment for receiving. Mr Tohill adds that it was within the Judge’s discretion to order that the sentences for breach of protection order be served concurrently.
Respondent’s submissions
[21] Mr Donnelly, for the respondent, submits that Turner v Police is highly relevant.7 In that case Mr Turner breached a protection order by sending a text message to the victim that said:8
You are a lying, cheating evil person. Other than my wonderful daughter I wish I had never met you. You stole my heart, my house, my soul, but worst of all you stole my children. How can you live with the knowledge that you have destroyed me? I am at the doctors at 9.30 Wednesday, I want some answers. You are not a Christian.
[22] The High Court in Turner said a starting point of 14-15 months’ imprisonment would be appropriate. Mr Donnelly submits the present offending was more serious because it was more sinister and threatening, and was sent for the sole purpose of causing serious psychological harm. Turner, however, contained mitigating factors such as Mr Turner having recently lost contact with his child. Mr Donnelly therefore contends that the first breach alone could attract a starting point of 18 months’ imprisonment, so the starting point adopted by Judge Turner was lenient. He submits
7 Turner v Police [2017] NZHC 1113.
8 At [17].
that, in that context, the uplifts of six months and three months for the other two breaches were appropriate.
[23] Mr Donnelly submits a cumulative sentence would ordinarily be appropriate for the balance of the offending. In Ellis v R the Court of Appeal considered a starting point of 18 months’ imprisonment, while stern, was within range for a single charge of receiving $5,000 worth of property.9 Mr Donnelly therefore submits that in the present case, where Mr White received a caravan worth $6,000 and also unlawfully entered a vehicle, the starting point adopted of 13 months was well within range.
[24] In regard to uplifts, Mr Donnelly accepts that the seven-month uplift for offending while on sentence, and for the offending while in custody or on bail, could be said to be excessive. However, given the leniency of the starting points, and the lack of an uplift for previous convictions, he submits the overall sentence was not manifestly excessive.
Analysis
[25] Mr Tohill does not challenge the starting points adopted for the charges of receiving and unlawfully entering a vehicle, and I agree that they were well within range. The decision in Ellis, cited by Mr Donnelly, is highly relevant given the similar value of property received, the proximity in time between the burglary and the receiving, and the fact that the property had some sentimental value.10 On the basis of Ellis, where a starting point of 18 months was upheld on a charge of receiving $5,000 of stolen property, a starting point higher than 13 months could have been adopted for the totality of these two charges. Thus, whether the sentences were imposed cumulatively or concurrently on these two sentences, I am satisfied that the totality of the starting point was well within range.
[26] The Judge was correct to deal with the protection order breaches cumulatively on the receiving and unlawful entry charges. The protection order breaches
9 Ellis v R [2012] NZCA 513.
10 Ellis v R, above n 9.
represented offending that was both different in kind and wholly unconnected to the other charges, and Mr White does not challenge this.11
[27] Mr Tohill’s submissions instead are centred on the starting point of 14 months adopted for the first breach of protection order, being Mr White’s text to the victim on 16 October. His reference to Narayan is compelling, as the circumstances in that case may appear more serious than the present.12 The threats made by Mr Narayan similarly related to him committing suicide, but were heightened by his physical presence at the victim’s house while holding a machete. A starting point of 12 months’ imprisonment was upheld for that offending alone.
[28] Mr Donnelly has responded with reference to Turner, a case that similarly concerned a threatening text message, where the Court adopted a starting point of 14-15 months.13 I accept Mr Donnelly’s submission that Mr White’s message was more sinister than that in Turner given it involved the threat of suicide. However, it must also be noted that the starting point in Turner took into account Mr Turner’s 11 previous convictions for breaching protection orders, which understandably resulted in a relatively high starting point. That was then also mitigated somewhat by factors such as the motivation for the offending.
[29] In the present case, the Judge correctly identified Mr White’s text message as intending to inflict psychological violence on the victim, and succeeding in causing her significant emotional harm. His similar previous behaviour of threatening suicide to compel her to act in the way he wanted was relevant to the gravity of this offending. Having considered the cases above, as well as others helpfully cited by Mr Tohill,14 I consider an appropriate starting point for the first breach would have been 12 months.
[30] There is also merit in the submission that the uplifts for the second and third breaches were excessive. In Toko v Police, a three-month uplift was applied for the appellant writing letters to the victim from prison, while in Narayan a three-month
11 Sentencing Act 2002, s 84.
12 Narayan v Police, above n 6.
13 R v Turner, above n 7.
14 Irvine v Police [2017] NZHC 3085; Hamilton v Police [2014] NZHC 2698; and Mataiti v Police
[2014] NZHC 1675.
uplift was applied for Mr Narayan asking another person to contact the victim for him.15 In the present case, with regard to totality, I would apply an uplift of five months for the second and third breaches together. That would bring the overall starting point for the protection order breaches to 17 months’ imprisonment.
[31] Combined with the starting point for the receiving and unlawful entry offences, the total starting point would therefore be 30 months. I would not reduce that on the basis of totality given, as stated above, the separate nature of the offending.
[32] I also consider the seven-month uplift in this case for the fact of offending while on a sentence of intensive supervision and while on bail or in custody is a little high. However, the Judge would have been entitled to impose an uplift for previous offending given Mr White had prior convictions for family violence. I do not consider the fact this relates to different victims is particularly relevant. A seven-month uplift for those combined factors would be appropriate so I do not disturb this uplift. The discounts allowed by the Judge for personal mitigating circumstances (five per cent), and guilty plea (25 per cent) were similarly appropriate.
[33] Based on my analysis, the total starting point would be 37 months and the end sentence, after the discounts of five per cent and 25 per cent are taken off in sequence, is 26 months’ imprisonment. That is materially different from the sentence of 30 months imposed in the District Court and I am satisfied the sentence was therefore manifestly excessive.
Conclusion
[34] The sentence of two years and six months’ imprisonment is set aside and substituted with a sentence of two years and two months’ imprisonment. In all other respects the sentence is unaltered.
Solicitors:
Kieran Tohill Law Ltd, Alexandra Preston Russell, Invercargill
15 Narayan v Police, above n 6; Toko v Police [2012] NZHC 1900.
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