Young v Police

[2022] NZHC 1009

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-000040

[2022] NZHC 1009

BETWEEN

MARCUS CONRAD YOUNG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

4 May 2022

(Heard at Hamilton)

Appearances:

D M Johnston for the Appellant A A Maino for the Respondent

Judgment:

12 May 2022

JUDGMENT OF HINTON J

This judgment was delivered by me on Thursday 12 May 2022 at 9.30 am

Registrar/Deputy Registrar Date:…………………………

Counsel/Solicitors:

D M Johnston, Barrister, Taupo

Gordon Pilditch, Crown Solicitor, Rotorua

YOUNG v NEW ZEALAND POLICE [2022] NZHC 1009 [12 May 2022]

[1]    Mr Young appeals his sentence  of  20  months’ imprisonment  imposed  on 15 February 2022 by Judge Hollister-Jones for the offences of breaching a protection order,1 demands to steal2 and wilful damage.3

[2]    Mr Young was granted leave to apply for home detention should a place at a residential rehabilitation facility become available. He applied to the Salvation Army but was advised he was not eligible while under electronic monitoring.

[3]Mr Young says that the sentence was manifestly excessive because:

(a)the starting points for both the lead charge of demands to steal and breach of protection order were too high;

(b)the Judge failed to take the totality principle into consideration;

(c)the Judge awarded a full discount for guilty plea but applied a discount of only 23 per cent; and

(d)there should have been further discounts for personal mitigating factors such as remorse, ill-health, alcoholism and prospects for rehabilitation.

Summary of facts

Fern Café incident

[4]    Mr Young went to the Fern Café in Taupō on 1 September 2021 operating under the belief that the owner had victimised a whanau member of his. When he entered the café he picked up a steak knife from the cutlery shelf and said, “Wow, this is a sharp knife”.

[5]    The victim asked a witness,  Mr  Thompson,  to  get  the  knife  back  from Mr Young, which Mr Thompson did.

1      Family Violence Act 2018, ss 9, 90(a) and 112(1)(a); maximum penalty 3 years’ imprisonment.

2      Crimes Act 1961, s 239(2); maximum penalty 7 years’ imprisonment.

3      Summary Offences Act 1981, s 11(1)(a); maximum penalty 3 months’ imprisonment or a

$2,000.00 fine.

[6]    Mr Young then said to the victim words to the effect: “We are not here to harm you. If we want, we can take money from the tills. But we don’t need money. We need the owner”.

[7]    Mr Young told the victim he wanted money from the till which was in front of him. Mr Young’s reasoning was that the owner of Fern Café would see via CCTV that he had taken money from the till and would come to the store to get the money back. Mr Young said he would sit on the couch inside the café and once the owner arrived he would give the money back.

[8]    Mr Young picked up two more steak knives from the shelf, walked towards the victim and said: “Since there are no cameras, open the fucking tills”. Mr Young was holding a steak knife at chest height and pointing it towards the victim. The knife was approximately 20 to 30 cm away from the victim’s neck.

[9]    The victim opened the till and Mr Young ushered him into the kitchen area of the café. He told the victim to call the owner on his cellphone.

[10]   Mr Young then told the owner: “Come up right here with $2,500, otherwise they’re going to get stabbed”. The owner hung up on Mr Young, who slammed the victim’s cellphone on the ground causing the back of the phone to smash. Mr Young could be heard by the victim on his way out of the Fern Café.

[11]   In explanation, Mr Young stated he took money from the till and sat on the couch at the Fern Café “waiting for Garrie”.

Family violence

[12]   About two hours later Mr Young was at the Tauhara shops in Taupō. He saw his ex-partner at the shops with their children and asked her if he could look after the children for the day. She saw he was intoxicated and told him he could not look after the children. She left the shops and walked home with the children.

[13]   Mr Young followed his ex-partner, at a distance, back to their residence. He was not given permission to enter but he did so and a verbal argument ensued.

Mr Young picked up a large L&P bottle and emptied the contents all over the kitchen floor while yelling obscenities at his ex-partner. She told him on multiple occasions to leave. He eventually did so and walked back to his own house.

Victim impact statements

[14]   There are no formal victim impact statements. There is an unsigned statement from the café worker who says he feared for his life during the incident and was left feeling scared. He says if he tells his family of the incident they will tell him to leave New Zealand and he will be culturally obligated to do so.

District Court sentence

[15]   Judge Hollister-Jones identified the lead charge as demands to steal for the Fern Café offending.4 He noted aggravating factors were use of a steak knife to threaten the victim and proximity of the knife to the victim’s face. The Judge said it was a highly threatening and intimidating  event  and adopted  a starting  point  of  16 months’ imprisonment.

[16]   In regard to the family violence offending, Judge Hollister-Jones noted the offending was aggravated by the significant level of psychological abuse of the victim and the fact it occurred in front of the three children. He said the incident would have been very unsettling for the children and could have had a significant psychological impact. He noted the offending was aggravated by being the second breach of a protection order and that it occurred while subject to sentence on the first breach. The Judge adopted a cumulative eight month starting point for this charge.

[17]   The Judge treated the two sets of offending as distinct in nature and therefore treated the starting points as cumulative. He also uplifted by two months’ imprisonment for Mr Young’s dishonesty offending history and awarded “a full discount for guilty plea”.5 This brought the final sentence to 20 months’ imprisonment: 12 months on the demanding with menaces charge, eight months

4      New Zealand Police v Young [2022] NZDC 2541.

5 At [10].

cumulative on the breach of a protection order and one month concurrent on the wilful damage charge.

Starting point – Fern Café offending

[18]   The Judge did not refer to case law in setting his starting point of 16 months’ imprisonment. Ms Johnston for Mr Young refers to Isaako v Police where there was a starting point of one year’s imprisonment.6 The offender had parked outside a dairy and entered wielding a knife approximately 15 cm long. He approached the counter and asked for money. The shop owner screamed and the offender ran away.  While Ms Johnston says this case is slightly more serious than Isaako, I consider it clearly more serious. The threat subsisted for a longer period and the knife was close to the victim’s face. I note that in Isaako the starting point was not in issue before the High Court. Ellis J commented that, at the time of that judgment:7

Any assessment of consistency in this respect is, in any event, problematic, due to the paucity of other cases in which a conviction under s 239(2) has been the lead offence for sentencing purposes.

[19]   Ms Maino for the Crown refers to a number of previous cases, including Regan v R.8 Mr Regan entered bank premises while intoxicated and demanded money from the till. The bank teller, who was 18 years old, was intimidated and shocked and took

$905.00 cash, handing it to Mr Regan. Winkelmann J considered the offending was less serious than Opetaia v R, where the aggravating factors of the offending were that it involved an intended extortion by gang members, two associates were involved, and threats were delivered.9 These features were not present in Regan and there was CCTV and a counter separating Mr Regan and the teller. However, Mr Regan intended to obtain and did in fact obtain a large amount of money. The Judge considered a starting point of 18 months’ imprisonment was appropriate.

[20]   I agree with Ms Johnston that the Crown has somewhat over-analysed the present summary of facts to suggest further aggravating factors. The aggravating factors are limited to the two the Judge found. There is no evidence Mr Young had an

6      Isaako v Police HC Auckland CRI-2010-404-000221, 3 August 2010.

7 At [13].

8      Regan v R [2012] NZCA 227.

9      Opetaia v R [2011] NZCA 621. In this case the starting point was two years.

associate. It would also be hard to premeditate conduct of the kind engaged in and the Judge made no such finding.

[21]   However, the use of a weapon to threaten the victim is significant. On the other hand, there was no actual violence and no money was taken. Comparing the two cases I have noted with the present, the starting point here will fall somewhere closer to Regan, bearing in mind that Ellis J did not consider comparator cases in Isaako Clearly the offending is not as serious as Opetaia. Considering also the other cases provided by Ms Maino, the starting point allowed for by the Judge is within the appropriate range.

Starting point – family violence offending

[22]   Ms Johnston relies on Prince v New Zealand Police where on appeal a sentence of seven months’ imprisonment was reduced to four months’ imprisonment for two breaches of failing to leave or being on a property uninvited. 10 One of the charges was representative due to an admission the offender had been going to the property every day for the last 14 weeks. In Prince, Cooke J said:11

The offence potentially involves a wide range of conduct. For non-violent breaches of a protection order in circumstances where the offender has a history of breaching orders the starting point generally begins from around four months imprisonment, with the starting point increasing depending on the circumstances such as the threat of violence…..

[23]   Cooke J also referred to Irvine v Police where the High Court considered a starting point of 10 months was “at the upper limit of the appropriate range” and R v Mitchell where the Court of Appeal considered an eight month starting point was “towards the top of the range”.12 In Prince, a starting point of six months’ imprisonment was set.

[24]   Here there was no threat of violence but it was a second breach. Ms Maino accepts that the family violence offending starting point is a bit on the high side but says this case would be above Prince. In this case children were present, which they

10     Prince v New Zealand Police [2019] NZHC 1742.

11 At [14].

12 At [14]. See Irvine v Police [2017] NZHC 3085; and Mitchell v R [2015] NZCA 442, (2015) 30 FRNZ 534.

were not in Prince. I take into account that there is a history here of police call-outs but there was apparently no information before the Court, and there is none before me, as to what they involved. That information should ideally always be available for sentencing in family violence cases. The callouts obviously provide context.

[25]   In the circumstances of this case and noting that Mr Young was also swearing at the victim, I consider that an appropriate starting point should have been five months’ imprisonment.

[26]That would bring the final starting point to 21 months’ imprisonment.

Totality/uplift

[27]   The Judge made no discount for totality and uplifted for dishonesty offending as noted earlier.

[28]   I agree that it is not necessary to reduce the starting point for totality. While the starting point was higher than it should have been, I have accounted for its adjustment above.

[29]   However, correspondingly I would make no uplift to the starting point of 21 months. It reflects the overall level of criminality. Also, while Mr Young was charged with dishonesty offending and pleaded guilty, that is not the real character of the offending in this case. His intention was to engage in attention-seeking behaviour to make communication with the café’s owner. The significance of his previous dishonesty offending to the present offending is therefore limited and does not warrant an uplift.

Guilty plea

[30]The Judge allowed a full discount for guilty plea, which was appropriate.

Other personal mitigating circumstances

[31]   I agree with Ms Johnston’s submission that there should have been a further discount for remorse, Mr Young’s history of seizures, the causative nature of his

alcoholism, and his prospects for rehabilitation. Mr Young wrote a remorse letter which was clearly composed by him. He also clearly suffers from alcoholism, which was substantially causative of his offending on the day. Ms Maino initially said such a determination would properly require a s 27 report but accepted my proposition that Mr Young’s problems with alcohol, and the linkage with the offending, are clear from the PAC reports and the summary of facts.

[32]   There are two insightful probation reports, both written by the same person, who also supervised Mr Young on the sentence of intensive supervision he was serving at the time of the current offending. It seems that the seizures suffered by Mr Young have led to his no longer being able to hold onto his job in the construction industry which in turn has exacerbated the slide in his behaviour. The probation officer says he needs a residential treatment programme. While the Judge made provision for that, admission is difficult for someone like Mr Young to achieve, particularly from prison.

[33]   I also consider it relevant that Mr Young has an authorised care arrangement in place for the children and sees them on a regular basis. It is not in their interests that he be in prison any longer than necessary. For their sake and his he needs to get the best help he can to straighten himself out before it is too late.

[34]   Weighing up these matters I consider there should have been a discount of approximately eight per cent. The total discount from the starting point would therefore be 33 per cent.

Result

[35]   The above steps would lead to a sentence of 14 months’ imprisonment. On that basis the end sentence imposed by the Judge of 20 months’ imprisonment was manifestly excessive.

[36]The appeal is allowed.

[37]   The sentence of 20 months’ imprisonment is quashed and replaced with a sentence of 14 months’ imprisonment, being 11 months’ imprisonment on the demanding with menaces charge and three months’ cumulative on the breach of

protection order. The concurrent sentence on the charge of intentional damage stands, as do the orders allowing cancellation of intensive supervision and leave to apply for home detention.

[38]   Finally, I was greatly assisted in this judgment by the excellent and balanced submissions of both counsel.

Hinton J