White v The King
[2023] NZHC 1706
•4 July 2023
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2023-488-44
[2023] NZHC 1706
BETWEEN JOSHUA WHITE
Appellant
AND
THE KING
Respondent
Hearing: 4 July 2023 Appearances:
C Taylor for Appellant
N L Jamieson for Respondent
Judgment:
4 July 2023
JUDGMENT OF JOHNSTONE J
Solicitors:
Crown Solicitor, Whangarei
WHITE v R [2023] NZHC 1706 [4 July 2023]
[1] Joshua White pleaded guilty to charges of: intentional damage;1 assault on a person in a family relationship;2 breach of a protection order (x 3);3 assault with a weapon;4 and wilful damage (x 2).5
[2] On 19 April 2023, Judge D J McDonald sentenced Mr White to 28 months’ imprisonment.6 He appeals against that sentence. The Crown opposes.
The offending
[3] On 29 January 2021, Mr White’s former partner was granted a protection order against him. At around 8.45 pm on Monday, 1 November 2021, Mr White arrived at his former partner’s residence uninvited. He was intoxicated. He kicked his way in through the front door, breaking it into two pieces (the intentional damage offence). Inside the home, he found his partner who was in the process of trying to leave out the back door. He grabbed her handbag, ripping the strap from it and causing its contents to scatter on the ground. He “swung” at her. These events comprise the assault on a person in a family relationship offending.
[4] Mr White proceeded to grab items from around the house including bottles of alcohol from the fridge. He threw two glass bottles at his former partner, one of which hit her in the forearm, the other smashing on the floor. Mr White’s attack with the bottle amounts to the first of two incidents covered by the representative assault with a weapon charge to which he pleaded guilty.
[5] Following the incident on 1 November 2021, he left abusive voice messages on his former partner’s phone, during the evenings of 28 November and 29 November 2021 and 5 January 2022. Those events were reflected in the breaches of protection order charges.
1 Crimes Act 1961, s 269(2)(a). Maximum penalty seven years’ imprisonment.
2 Section 194A(1). Maximum penalty two years’ imprisonment.
3 Family Violence Act 2018, s 112(1)(a). Maximum penalty three years’ imprisonment.
4 Crimes Act 1961, s 202C(1)(a). Maximum penalty five years’ imprisonment.
5 Summary Offences Act 1981, s 11(1)(a). Maximum penalty: three months’ imprisonment or a fine not exceeding $2,000.
6 R v White [2023] NZDC 7392.
[6] Around seven months later, in August 2022, it appears Mr White had reconciled with his victim to the extent that she anticipated him being at his home in Woodville, Whangarei when she returned there at around midday on 14 August 2022. An argument arose about his drinking. He was asked to, but declined, to leave. The victim called Police. While she was on the phone, Mr White picked up a piece of wood and swung it at her hand, causing the phone to fall to the floor and bruising to her thumb (the use of the piece of wood is the second episode covered by the representative assault with a weapon charge). He then pulled the front panel off a kitchen drawer, and damaged a moped parked in the kitchen (these instances of damage formed the wilful damage offending).
District Court decision
[7]Judge McDonald’s approach was to;
(a)take the representative assault with a weapon charge as the lead charge, adopting a starting point with reference to Nuku v R7 of 20 months’ imprisonment;
(b)apply a nine-month uplift for the other seven charges;
(c)apply a four-month uplift for Mr White’s previous offending, including in particular his previous offences involving the same victim, including by way of a breach of protection order and assault for which Mr White received a sentence of six months’ imprisonment;
(d)allow a 15 per cent deduction for Mr White’s guilty plea; and
(e)arrive at a final sentence of 28 months’ imprisonment, there being no personal mitigating features in Judge McDonald’s view.
Appellant’s submissions
[8]For Mr White, Mr Taylor submits that:
7 Nuku v R [2012] NZCA 584; [2013] 2 NZLR 39.
(a)Although his written submissions suggest the Judge was wrong to rely on Nuku, there is some authority suggesting that that case offers a degree of useful guidance in cases of assault with a weapon under s 202C of the Crimes Act albeit that provision is not specifically referenced. However, as a guideline judgment Nuku should not be applied in a mechanistic way.
(b)Whereas the first incident the subject of the assault with a weapon charge involved a home invasion, Mr White appears to have been present with his victim’s consent in the home at the time the second incident commenced. Yet the Judge said that “on both occasions, there were elements of home invasion”.
(c)Reference to a series of judgments of this Court on sentence appeals suggests the starting point was too high.8
(d)Rather than the overall starting point for all offending of 29 months’ imprisonment, the appropriate range was between 18 and 24 months.
(e)While no issue is taken with the four-month uplift and 15 per cent discount for guilty plea, Mr White’s willingness to engage in restorative justice (albeit that was not facilitated by Corrections) together with completion of the Te Hokinga Mai - Raki remand programme required a discount for remorse and rehabilitative efforts.
Respondent’s submissions
[9]For the Crown, Ms Jamieson submitted that:
(a)the District Court was correct to apply Nuku;
(b)the starting point and uplifts were appropriate; and
8 Te Tau v Police [2012] NZHC 1068; Hamilton v Police [2014] NZHC 2698; Mann v Police [2012] NZHC 2613; Kahaki v Police HC Tauranga CRI-2009-463-33, 16 June 2009; Fox v Police HC Hamilton CRI-2008-419-16, 24 April 2008.
(c)discounts for personal circumstances beyond Mr White’s guilty plea were not required.
[10]Overall, she said, the end sentence was within range.
Law on appeal
[11] This Court must allow the appeal if there is an error in the sentence imposed at first instance and a different sentence should be imposed on appeal.9 Otherwise the Court must dismiss the appeal.10
[12] Before this Court may substitute its own views as to the appropriate sentence, it must find the first instance sentence to be manifestly excessive. The Court will generally not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.11 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence imposed rather than the process by which it was reached.12
Analysis
Nuku v R
[13] While the Court of Appeal’s judgment in Nuku v R is not expressed to be applicable to offending under s 202C of the Crimes Act, the range of serious assaults to which it is expressly applicable include injuring with intent to injure contrary to s 189(2), an offence carrying a maximum penalty of five years’ imprisonment.
[14] The fact that the maximum penalty for the offence under s 202C is the same as that under s 189(2) formed a substantial basis of what appeared in the Court of Appeal’s judgment in Hurinui v R13 to be its preparedness to adopt the Crown
9 Criminal Procedure Act 2011, s 250(2).
10 Section 250(3).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA 47 at [30].
12 Ripia v R [2011] NZCA 101 at [15].
13 Hurunui v R [2014] NZCA 290 at [26] – [27].
submission that the same methodology should be applied in cases under s 202C as that applied in Nuku.
[15]This Court accepted the use of Nuku to assist in sentencing methodology in
Wharepapa v R,14 a case the Crown relies upon in this case for the sake of comparison.
[16] Naturally, strict application of the Nuku factors is not appropriate, given that in the case of offending under s 202C, the use of a weapon, regarded in Nuku as an aggravating feature, is implicit in the charge.
[17] In my view, confirming that Judge McDonald did not mechanistically apply Nuku is the fact that his Honour expressly put to one side that aspect of the offending in this case, observing the implicit nature of use of a weapon as part of s 202C offending. Instead Judge McDonald referred in particular to Mr White’s victim’s vulnerability as his sometime domestic partner and the elements of home invasion present in both episodes the subject of assault with a weapon offending.
‘Elements of home invasion’
[18] Mr Taylor is, at least to some extent correct, in that it appears Judge McDonald assumed Mr White was not “supposed to be there”15 on either occasion. Yet, in circumstances where Mr White’s victim on the latter occasion was calling police in response to his refusal to leave the home, it should have been apparent to him that his presence as of that point was unauthorised. In my view, what particularly aggravated the offending on that occasion was that Mr White’s behaviour was clearly intended to avoid the summoning of Police given his prior experience with them in episodes such as this.
Case comparison
[19] To the extent close analysis of other cases is possible, let alone desirable, given that offending of this type will always carry considerable variation as to its particular details, it does not demonstrate clear error:
14 Wharepapa v R [2021] NZHC 1011 at [27].
15 Above n 6 at [10].
(a)in Te Tau, there was a single incident and less serious charges;
(b)in Hamilton there was two episodes across the same evening, and less serious charges;
(c)in Mann as with this case, there were two separate incidents of assault and while they may have been perhaps of a greater degree of seriousness, the overall starting point at 25 months’ imprisonment was not significantly out of kilter with that in this case; and
(d)in Kahaki and in Fox, the violence involved in a single episode of assault appears to have been more serious than that in either of the episodes in this case, but as a single episode it did not extend to repeated offending, and it did involve offending charges with lower maximum penalties.
[20] Similarly the case of Wharepapa (drawn to my attention by Ms Jamieson) involved a single episode of apparently more serious violence in the sense that on that occasion the full glass bottle that was thrown at the victim struck her head and caused a laceration. There the victim was in a similar position of vulnerability to that of the victim in this case, being the subject of a police safety order made against the offender.16 But as noted, this case involved two separate incidents the second of which involved the feature of an attempt to avoid Police being summoned. The starting point in Wharepapa compares broadly with the starting point in this case, at 20 months.
[21] In this case an uplift for Mr White’s other offending involving breaking the door to the victim’s home, damaging her property and, on an entirely separate set of occasions, leaving her abusive phone messages in breach of a protection order clearly warranted a substantial uplift from the starting point adopted in relation to the assault with a weapon representative charge.
16 Wharepapa v R [2021] NZHC 1011.
Personal factors
[22] For Mr White, Mr Taylor calls in aid his preliminary rehabilitative efforts while in custody undertaking the Te Hokinga Mai – Raki remand programme and Mr White’s willingness to engage in formal restorative justice facilitation. That aspect, forming part of the context in which the Court was required to assess Mr White’s personal circumstances, required to be considered alongside the fact that Mr White had offended in both 2020 and 2021 in respect of the same victim. His 2021 offending resulted in a sentence of six months’ imprisonment.
[23] While in my view Judge McDonald may have been well advised to consider those aspects expressly and to reach a balanced overall outcome, I note that Mr White’s progress while on remand was not brought to the Court’s attention and also that the overall four month uplift for Mr White’s previous offending was, in my view, well-merited.
[24] The overall effect is that the adjustment for personal factors other than guilty plea was within range and that accordingly the end sentence was so too available to the sentencing Judge. On that basis the end sentence is, in my view, properly justified by accepted sentencing principles.
Result
[25]The appeal is dismissed.
Johnstone J
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