Whiu v Police

[2020] NZHC 298

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-47

[2020] NZHC 298

BETWEEN

WINDSOR ION WHIU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 February 2020
Appearances:	M A Littlefair for the Appellant C Taylor For the Respondent
Judgment:	26 February 2020

ORAL JUDGMENT OF GORDON J

Solicitors:           Crown Solicitor, Whangarei

Rune Law, Kaikohe

WHIU v POLICE [2020] NZHC 298 [26 February 2020]

Introduction

[1]                 The appellant, Windsor Ion Whiu, was sentenced to two years and three months’ imprisonment on one charge of breach of release conditions,1 one charge of breach of protection order,2 and one charge of wilful damage3 after pleading guilty to those charges. He now appeals against that sentence on the basis that the starting point adopted was manifestly excessive.

[2]                 Mr Whiu’s notice of appeal is out of time but the respondent takes no issue with that.

Background facts

[3]                 On 27 September 2019, at around 2.15 am, Mr Whiu went to the address of the victim, who is the protected person under the protection order to which he is subject. Mr Whiu and Ms G are former partners and have three children together who are under the care of Oranga Tamariki.

[4]                 Mr Whiu entered the property while the victim was sleeping, yelling outside her window and waking her. In response to the victim questioning why he was at the address, Mr Whiu said “I’m here to see if you are with another man.” The victim closed her window, telling Mr Whiu she did not wish to talk to him. When Mr Whiu advised he wanted to talk to her about their children she went to the front door to speak to him. The conversation went on to other matters so the victim closed the front door and contacted the police. Mr Whiu then kicked a rubbish bin, breaking it in half, as he left the address. The police located Mr Whiu nearby soon after.

[5]                 He admitted breaching the protection order and release conditions but said he was invited into the address after arriving there. He told the police he got angry when the victim said she was going to call the police so he kicked the rubbish bin before leaving.

1      Sentencing Act 2002, s 96(1). Maximum penalty: one year’s imprisonment or a fine not exceeding

$2000.

2      Family Violence Act 2018, ss 90(b) and 112(1)(a). Section 112(1)(a) carries a maximum penalty of three years’ imprisonment.

3      Summary Offences Act 1981, s 11(1)(a). Maximum penalty: 3 months’ imprisonment or fine not exceeding $2,000.

The District Court Decision

[6]On 13 November 2019 Mr Whiu was sentenced in the Kaikohe District Court.4

[7]                 Taking into account the repeated prior offences against the victim from 2014 to 2019 (including assaults, threats to kill, and a burglary), and the psychological harm to the victim from the contact, the Judge adopted a starting point of two years for the breach of protection order and wilful damage. Turning to the breach of release conditions, the Judge adopted a starting point  of eight months on the basis that      Mr Whiu has a history of eight convictions for breach of release conditions.

[8]                 Overall, the Judge selected a starting point of two years and eight months. Setting aside Mr Whiu’s previous violence against the victim and breach of release conditions as already assessed in the starting point, the Judge applied an uplift of three months for other convictions, taking the sentence to two years and 11 months’ imprisonment.

[9]                 The Judge then deducted the full 25 per cent discount for Mr Whiu’s guilty pleas. This resulted in a final sentence of two years and two months.

[10]              However, the way in which the Judge constructed the final sentence was to impose a sentence of nine months’ imprisonment for the breach of release conditions, with a cumulative sentence of 18 months’ imprisonment for the breach of the protection order which made an end sentence  of  two  years  and  three  months.  Two months’ imprisonment on the wilful damage charge was to be served concurrently.

[11]              The Judge thus arrived at a final sentence of two years and three months, which was one month more than the two years and two months arrived at after deducting the discount for a guilty plea.

4      Police v Whiu [2019] NZDC 22688.

Principles on appeal

[12]              Appeals against sentence are allowed as of right under s 244 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 sentence and that a different sentence should be imposed.5 As the Court of Appeal said 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”.6 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.7

Submissions

Appellant’s submissions

[13]              Mr Littlefair for Mr Whiu submits that the total starting point for an overall sentence on all charges after all aggravating features and uplifts, should have been as little as six to seven months and no more than nine to 11 months maximum before proper discounts for matters such as an early guilty plea.

[14]              Mr Littlefair then submits that the total end sentence for all three charges with uplifts for aggravating features and after a full 25 per cent discount is applied, should accordingly have been as low as/in the region of four to five months, and no more than seven to eight months at its highest.

Respondent’s submissions

[15]              Mr Taylor for the respondent submits that the starting point of two years for the breach of protection order and wilful damage, although stern, was within range. As to the breach of  release  conditions, Mr Taylor  submits that having regard to   Mr Whiu’s eight convictions for similar breaches, a starting point of eight months was

5      Criminal Procedure Act 2011, ss 250(2) and 250(3).

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

7      Ripia v R [2011] NZCA 101 at [15].

appropriate. There was no error in imposing a cumulative sentence as the offending was different in nature and time.

Analysis

Breach of a protection order: the starting point

[16]              There is no tariff case for this kind of offending. There is a helpful review of a number of cases involving breaches of protection orders in the recent case of Thompson v Police. There Cull J said:8

[19] As noted by this Court in Prince v New Zealand Police, the offence potentially involves a wide range of conduct. In setting an appropriate starting point, the Court must identify the aggravating and mitigating factors of the offending. This requires the Court to ask how serious the offending is compared to other offending of that type and provides for consistency in sentencing. Section 9 of the Sentencing Act provides a non-exhaustive list of such aggravating and mitigating factors. For non-violent breaches of a protection order the starting point may begin at around four months’ imprisonment, with that starting point increasing depending on other circumstances or aggravating factors.

[17]              While there was no physical violence involved in this case, there is the previous offending against the victim. It is therefore necessary to stand back and view the offending as a whole. As Lang J said in Reid v NZ Police,9 in those circumstances it is inherently difficult to adopt a R v Taueki based approach.10 Similar comments were made by the Court of Appeal in Mitchell v R.11 Although in both those cases the previous offending involved previous breaches of the protection order, I consider a similar approach can be followed where the previous offending is for violence against the same victim.

[18]The Judge referred to that offending as follows:

[11]              I take into account your previous offences, they are appalling against the same victim. You have assaulted her, threatened her, harassed her. In 2014, three assaults, threaten to kill, you were jailed, 2015, a threat to kill, male assaults female, intentional damage, you were jailed, 2018, you burgled her house and assaulted her, you were given 18 months. 2019, you threatened

8      Thompson v Police [2020] NZHC 20.

9      Reid v NZ Police [2015] NZHC 299 at [9].

10     R v Taueki [2005] 3 NZLR 372 (CA).

11     Mitchell v R [2013] NZCA 583.

to kill her, and you were given seven months and 14 days, all with release conditions. Now, here you are again.

[12]              Mr Littlefair says that what you did on this occasion was not to hit her or anything like that, but it is a cumulative effect on a victim of family violence which is so traumatic. She is terrified of you. You do not respect her, you do not respect the protection order. Her protection, in my view, in this sentencing is paramount.

[19]              In my view even taking into account the previous offending, the starting point of two years is too high. There was no physical violence. The kicking of the rubbish bin occurred after Mr Whiu left the house. In my view a starting point of six months’ imprisonment would be consistent with the cases discussed in Thompson bearing in mind that there is a history of violence against the victim. This offending is therefore more serious than a first non-violent breach of a protection order.

[20]              I should add, in fairness to the District Court Judge, Mr Littlefair responsibly acknowledged that he did not refer the Judge to any authorities to assist the Judge with setting a starting point.

Breach of Release Conditions

[21]              Again, there is no tariff case for this kind of offending. Examples of previous cases are as follows:

(a)Rota v R:12 Mr Rota committed burglary and additionally failed to report repeatedly. Rather than adding on a cumulative sentence of    six months for the convictions, an uplift of four months was given to the primary sentence for all three.

(b)R v Wharepapa:13 Two breaches of release conditions by failure to report were each given a month, concurrent with each other but cumulatively overall.

12     Rota v R [2012] NZCA 49.

13     R v Wharepapa [2009] NZCA 544.

(c)R v Aramiz:14 A number of breaches of release conditions were dealt by way of an uplift of four months on the original charge.

(d)Currie v Police:15 An independent starting point of three months’ imprisonment was adopted by the Judge, for a large number of breaches and a long history of breaches.

(e)Manuel v Police:16 Unusually, this regarded an independent case of breaching release conditions in a premeditated fashion. Three months’ imprisonment was imposed.

(f)Mason v Police:17 A case of total refusal to comply with release conditions. A two month uplift was adopted.

[22]              Sentences are around one to four months, with figures at the higher end of that range being given exclusively as uplifts on other crimes when a substantial discount can be expected. Repeated breaches of release conditions by failing to report are unsurprisingly the only cases prosecuted, and there they are generally treated as concurrent with one another.

[23]The failure to report was described by the Judge as follows:

[2]        The release conditions continued for one year, three months and three days after your release.

[3]        On 4 April 2019, you were sentenced to imprisonment again and on 8 May you were released on nine months, three weeks and one day conditions. Sentenced to be served concurrently.

[4]        On 7 May 2019, you were fully told what was required of you. You signed the induction checklist confirming you understood the rules and the requirements of your sentence including the requirement to report to your probation officer when instructed.

[5]        On 14 June, you reported, and you were instructed to report again on 18 June. On 18 June you did not turn up and you have not been back, so you reported once.

14     R v Aramiz [2020] NZHC 78.

15     Currie v Police [2019] NZHC 1946.

16     Manuel v Police [2019] NZHC 816.

17     Mason v Police [2018] NZHC 3387.

[24]              I consider the starting point of eight months was too high. I consider a sentence of two months appropriate. That would bring the sentence to one of eight months’ imprisonment.

Aggravating and Mitigating Factors Personal to the Offender

[25]              Mr Whiu’s prior offending (excluding the history of violence against the victim as already counted) includes a breach of community work (representative), intentional damage, breaches of conditions of intensive supervision and wilful damage. The Judge imposed an uplift of a little less than 10 per cent. Considering Prince v Police, where only a minor uplift was applied, I consider a similar uplift of one month is appropriate.18 That would bring the sentence to one of nine months’ imprisonment before taking into account the guilty plea to which I now turn.

Guilty Plea

[26]              Both counsel submit that a full 25 per cent discount is appropriate in this case. I agree.

[27]              This would bring the final sentence to six months, (rounded down from six and three-quarter months).

Result

[28]              The appeal is allowed and a final sentence of six months’ imprisonment is substituted. That is made up of four months’ imprisonment on the breach of protection order and two months’ imprisonment (cumulative) for the breach of release conditions, together with a concurrent sentence of one month’s imprisonment on the wilful damage charge.

Gordon J

18     Prince v Police [2019] NZHC 1742.