Kumar v Police [2015] NZHC 1575 (7 July 2015)

Last Updated: 9 July 2015

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-000012 & 14-18 [2015] NZHC 1575

BETWEEN	ISAAC PIARE KUMAR Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	29 June 2015
Appearances:	S Williamson for the Appellant S McKenzie for the Crown
Judgment:	7 July 2015

_{JUDGMENT OF NATION J}

Background

[1] Mr Kumar appeals against sentences imposed in the District Court at Invercargill on 17 March 2015.¹ The sentencing Judge said that, by far, the more serious matters the appellant faced related to breaches of protection orders on 25

December 2014 and 21 January 2015, and the charge of driving while disqualified on

25 December 2015.

[2] Offending in mid-2013 is relevant in assessing the seriousness of the breaches of protection orders in early 2015. It is also relevant because the sentencing Judge had to reconsider the sentences that were imposed for that

_offending.

¹ _{R v Kumar [2015] NZDC 4475.}

KUMAR v POLICE [2015] NZHC 1575 [7 July 2015]

[3] In June 2013, Mr Kumar was 19 years of age. His relationship with his partner, aged 16, ended. She was pregnant with his child. Mr Kumar could not accept that the relationship was over.

[4] On 9 June 2013, Mr Kumar was involved in a domestic incident with his ex- partner. As a result, the Police issued a Police safety order under the Domestic Violence Act 1995. This stated that he was not to have any contact with the victim by any means for a period of five days. A trespass notice was also issued for him to stay away from her home in Invercargill. On 10 June 2013, Mr Kumar began to contact the victim by text message and over the next two days sent 90 unsolicited text messages to the victim. She did not reply, reported the matter to the Police and obtained a new cell phone number through getting a new SIM card. Soon after, Mr Kumar unlawfully entered her home when she was away from it. He obtained the packaging for her new SIM card and on it her new cell phone number which he immediately started texting.

[5] On 13 June 2013, the victim obtained a temporary protection order. The day after the protection order was served on Mr Kumar he drove up behind her on two occasions; on the second occasion he tried to talk to her and kept following her. The protection order was made final on 23 September 2013.

[6] On 17 December 2013, Mr Kumar was sentenced to 300 hours of community work, supervision for one year and 15 months’ disqualification from driving for various offences, namely, refusing to accompany an enforcement officer on 27

October 2013, operating a motor vehicle causing sustained loss of traction on 17

August 2013, operating a motor vehicle causing sustained loss of traction and driving with excess blood alcohol content on 26 October 2013, contravening a protection order on 14 June 2013 and burglary and wilful trespass committed on 13

June 2013.

[7] On 22 August 2014, Mr Kumar was sentenced to a further 80 hours’ community work on two charges of obstructing a public place on 4 May 2014. He had been on State Highway 1 just south of Woodlands, Invercargill with his partner and some six others. The summary of facts stated Mr Kumar was socialising in

Dunedin and his partner was in Invercargill. They were communicating via text messages and calls about infidelity in their relationship. Consistent with the summary of facts and information in a psychiatric report provided to the Court dated around 2014, Mr Kumar and his partner agreed to meet on the road. She travelled out to meet him with a girlfriend and about four other people. Mr Kumar and his partner had an argument. Mr Kumar became upset and ended up running into the middle of the road on two separate occasions, obstructing cars that were coming towards him.

[8] On 17 March 2015, Mr Kumar had 161 hours of community work on those sentences still outstanding. Probation applied for him to be re-sentenced because he needed an operation and, with his recovery, would be unable to complete the required community work within the prescribed period.

[9] On Christmas Day 2014, Mr Kumar was driving a car in Tay Street, Invercargill on his way to the gym. He saw his brother and his former partner on the other side of the road. Mr Kumar got out of his car and confronted his former partner, yelling at her and demanding an explanation as to why she was with his brother. Mr Kumar took her wallet but then, when she said she would talk to him, walked back to her and returned her wallet. She phoned the Police as she was concerned for her safety. Mr Kumar then grabbed her by the wrist, taking the cell phone off her. The Police were called and soon spoke to Mr Kumar. He admitted the allegations as to what had happened. Mr Kumar was charged with breaches of the protection order and driving while disqualified. On 30 December 2014, he was released on bail. One of the conditions of bail was that he not have any contact with his former partner.

[10] On 21 January 2015, he sent text messages to his former partner. The text messages were acknowledged as being psychologically abusive. In the messages he pleaded for her to come to him, stating that he was depressed and wanted to die.

The sentencing Judge’s approach

[11] On the charges of breaching a protection order on Christmas Day 2014 and on 21 January 2015, the Judge noted there were aggravating features associated with

the earlier breach of a protection order, offending while on bail and driving while disqualified being a breach of a Court imposed sentence. The Judge noted Mr Kumar had not learnt what he needed to from the previously imposed sentence of supervision or from the stopping violence programme that he would have attended when a protection order was first made against him. The offending on Christmas Day 2014 had involved low level violence. The Judge said he needed to hold Mr Kumar accountable both to the community and to the victim for his offending and instil in Mr Kumar a sense of responsibility. The Judge considered there was a need for a sentence which would act as a strong deterrent both to him and other people who might think they could breach protection orders.

[12] The Judge said he was giving Mr Kumar credit for having attended a restorative justice conference where he had apologised to his partner. The Judge also said that Mr Kumar had demonstrated he had gained some insight into how his behaviour was controlling and that he needed to move on from the relationship. The Judge acknowledged that he needed to impose the least restrictive sentence that was appropriate in the hierarchy of sentencing, bearing in mind the principles in the Sentencing Act 2002. The Judge noted the time Mr Kumar had already spent in custody prior to sentencing may also have motivated him to change. It appears from the Court file Mr Kumar was in custody from 23 January to 17 March 2015.

[13] The Judge adopted a starting point for the offending on 25 December 2014 and 21 January 2015 of 18 months’ imprisonment. Because of the previous conviction for a breach of a protection order, the fact there was offending while on bail and to take account of the driving while disqualified, he uplifted it by four months to arrive at a provisional sentence of 22 months. He gave Mr Kumar six months credit for a guilty plea, arriving at an end sentence of 16 months’ imprisonment.

[14] On the charge of driving while disqualified, Mr Kumar was sentenced to one month’s imprisonment, to be served concurrently. In relation to the matters on which he was to be re-sentenced, the Judge cancelled the sentences of community work and sentenced Mr Kumar to a further one month’s imprisonment, cumulative on the other

16 months. In total, Mr Kumar received a sentence of 17 months’ imprisonment. He

was also to be subject to release conditions for six months following his sentence end date. The Judge declined to deal with Mr Kumar by way of home detention.

Grounds for appeal

[15] Mr Kumar has appealed against that sentence. Through counsel, he has indicated his appeal is against only the 16 month sentence imposed for the two breaches of protection order and the one charge of driving while disqualified. No issue is taken with the Court imposing a sentence of imprisonment rather than home detention.

[16] The appeal is advanced squarely on the basis that the sentence of 16 months’ imprisonment was excessive, having regard to the judgement of Wylie J in Woods v Police.² Mr Williamson, counsel for Mr Kumar, had not been aware of that judgment at the time of Mr Kumar’s sentencing on 17 March 2015 and had not brought it to the attention of the sentencing Judge. He submitted that, if the Judge had been aware of it, a starting point of eight to 10 months for the later offending

would have been adopted.

[17] Mr Williamson referred to the sentences ultimately imposed in the Woods

judgment and other cases referred to in the Woods decision.³

[18] Counsel said a starting point of 18 months would match that adopted in

Areaiti v Police which, he submitted, related to much more serious offending.⁴

The Crown’s submissions

[19] For the Crown, Ms McKenzie referred to the fact that the maximum sentence for breaching a protection order was increased by Parliament on 25 September 2013 from two years’ imprisonment to three years’ imprisonment.⁵ Ms McKenzie

_{submitted that sentences imposed before then must therefore not be treated as a}

² _{Woods v Police [2015] NZHC 305.}

³ Keenan v Police HC Palmerston North CRI-2005-454-59, 19 December 2005; Narayan v Police [2012] NZHC 988; Tutbury v Police [2013] NZHC 2960; Mataiti v Police [2014] NZHC 1675; Hamilton v Police [2014] NZHC 2698; Luff v Police [2014] NZHC 2643; Williams v Police [2014] NZHC 3255

⁴ _{Areaiti v Police [2014] HZHC 2150.}

⁵ Domestic Violence Amendment Act 2013, s 11(1).

guideline for comparable offending. Mr Williamson accepted that such earlier sentences would be of limited assistance.

[20] Ms McKenzie submitted the starting point the Judge adopted for the offending was within the range available to him, albeit at the upper end of that range. Ms McKenzie referred to the fact the offending involved two breaches of the protection order within one month and involved a physical confrontation, a degree of violence, intimidation and psychological abuse. She submitted the fact that similar offending occurred while on bail was a significantly aggravating factor. She submitted the end sentence imposed of 16 months’ imprisonment was not manifestly excessive. She submitted that it was in the range that could be justified by sentencing principles, particularly the strong need to deter and denounce the appellant’s offending and lack of regard for Court imposed orders.

The threshold on appeal against sentence

[21] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction;

and

(b) a different sentence should be imposed.

In any other case, the Court must dismiss the appeal.⁶

[22] As Wylie J noted in Woods v Police, the Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the Courts under the Summary Proceedings Act 1957.⁷

[23] The Court of Appeal has noted that, notwithstanding that s 250 makes no

express reference to “manifestly excessive”, this principle is “well ingrained” in the

_{Court’s approach to sentence appeals.}⁸

⁶ _{Criminal Procedure Act 2011, s 250(3).}

⁷ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].}

⁸ At [33] and [35].

[24] Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.⁹ As Wylie J stated, this Court will not intervene where the sentence imposed is within the range that can properly be justified by accepted sentencing principles.¹⁰

Relevant precedents

[25] In Woods v Police, the Court was dealing with a situation where Mr Woods had offended after a relationship with the victim of some 17 years. On three occasions in August 2013 Mr Woods had gone to the victim’s home in breach of a trespass notice. He was found guilty of trespass charges following a defended hearing in June 2014. A protection order was made against him on 13 August 2013. It was made final on 14 November 2013. There were three breaches of the protection order in January 2014 as a result of which he was remanded on bail on 29

January 2014. Nine further breaches of the protection order occurred between 29

April 2014 and 3 June 2014. On 10 June 2014, Mr Woods was remanded in custody on five of these charges. There were two further breaches of the protection orders committed while Mr Woods was in prison and then two further offences in October

2014 when Mr Woods must have been on bail.

[26] Mr Woods was sentenced in the District Court on the basis that his offending was a matter of grave concern, that it involved repetitive stalking behaviour coupled with manipulation and psychological abuse and had not been curbed by Court orders, bail conditions or even a remand in custody. The Judge considered a term of 36 months’ imprisonment was an appropriate starting point and imposed a 27 month end sentence after allowing a credit for guilty pleas.

[27] Wylie J characterised the offending as follows:

[38] ... In all except two instances, each charging document represented a distinct and separate act, some occurring within a matter of hours after earlier offending. Mr Woods’ conduct was not violent. There were no threats of violence, although some of the texts were rather sinister. Nor was Mr Woods abusive, derogatory, explicit or obscene. There was no additional offending accompanying the breaches – such as actual violence. As against

⁹ _{Ripia v R [2011] NZCA 101 at [15].}

¹⁰ Woods v Police, above n 2, at [33].

this, his offending did not involve an isolated breach. Whilst some of the offending – for example, the telephone calls – were relatively minor, the breaches were repeated and persistent. They were committed while Mr Woods was on bail, and in one case, in custody. In my judgment, Mr Woods’ conduct amounted to prolonged harassment, on a number of discreet occasions, and in plain defiance of court orders. There can be no dispute that a sentence of imprisonment was required.

[28] Wylie J considered that the Judge had made an error in the way he exercised the sentencing discretion. He held that, contrary to s 8(e) of the Sentencing Act

2002, the Judge had failed to:¹¹

... take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances ...

[29] Wylie J considered, through failing to consider similar cases, the Judge had imposed a sentence which was well beyond the available range and thus manifestly excessive. After having regard to other relevant cases and the increase in the maximum penalty that came into force in September 2013, Wylie J considered an appropriate starting point for all the protection order offending was 18 months’ imprisonment. He allowed a discount of two months for Mr Woods’ lack of relevant previous convictions and 17 years of no offending at all and a further discount of two and a half months for guilty pleas. These discounts resulted in an appropriate end sentence for the protection order offending of 13 months and 15 days’ imprisonment. He added a one month sentence for the trespass notice offending which he considered was discrete offending, different in character and separate in time. As a result, he substituted a sentencing of 14 months and 15 days’ imprisonment with further post-release conditions.

[30] Wylie J referred to Love v Police.¹² The offending there occurred in mid-

2014. The appellant had assaulted his wife, was charged and bailed with a condition that he not associate with her. She obtained a protection order. He then breached the protection order by first going to her home, then sending her 34 text messages and calling her on her cell phone on four occasions. On appeal, Mander J considered a

_{starting point of nine months for the assault was justified with an increase of three}

¹¹ _{At [40].}

12. Love v Police [2014] NZHC 2643, cited in Woods v Police, above n 2, at [43]. The following precedents are tabulated in Appendix Three of Woods v Police, above n 2.

months for breaches of the protection order. He considered an uplift of a further three months, because offending occurred when the defendant was on bail, could not be justified. Mander J thus considered a 15 month starting point adopted by the District Court was excessive. He considered a nine month term of imprisonment was appropriate for all offending and substituted an end sentence of seven months having regard to the guilty pleas.

[31] Wylie J also referred to Areaiti v Police which involved an appellant who was sentenced for two breaches of a protection order and also a charge of male assaults female.¹³ The first incident involved serious physical violence during which he strangled the protected person and pinned her against a wall. In the second, the protected person locked herself in a car as the appellant attempted to kick the door in, yelling he was going to kill her. The appellant had a history of dishonesty and violent offending and prior convictions for breaching protection orders. The High Court held the end sentence of 18 months’ imprisonment for all offending, including

violence, did not warrant interference.

[32] Another case Wylie J referred to was Apineru v Police.¹⁴ The appellant had been sentenced to imprisonment for two years for offending in February 2015. There had been a breach of a protection order in conjunction with a common assault. The appellant had breached the protection order on three prior occasions. The High Court allowed an appeal against that sentence and imposed a sentence of nine months’ imprisonment.

[33] Wylie J also referred to the High Court’s judgment on appeal in Hamilton v Police.¹⁵ It involved offending in March 2014. A sentence of two years and six months was reduced on appeal to 11 months’ imprisonment with a further 13 months for breaching prison release conditions. The appellant was charged with breach of a protection order and male assaults female. He had gone to the address of the protected person and was verbally abusive to her. When she tried to call the Police, he had grabbed the cell phone and broken it and pushed her against the wall. In

_{relation to the breach of protection order, Duffy J considered the starting point of 18}

¹³ _{Areaiti v Police [2014] NZHC 2150.}

¹⁴ _{Apineru v Police [2014] NZHC 1969.}

¹⁵ Hamilton v Police [2014] NZHC 2698.

months’ imprisonment, in light of case law she had referred to, was clearly too high. She considered the appropriate starting point for the breach of protection order was eight months’ imprisonment. She uplifted the starting point to 12 months for the assault with a further three months because the appellant had three prior convictions for breaches of protection orders. With a 25 per cent discount for a guilty plea, the sentence for both the breach of protection order and the assault required a sentence of 11 months’ imprisonment.

[34] Wylie J also referred to Mataiti v Police.¹⁶ The complainant had obtained a protection order against the appellant on 3 April 2013. On 10 October 2013, the appellant followed her and children to her home after she had been doing grocery shopping. The complainant went outside to have a cigarette. The appellant followed her and demanded she give him one as well. She refused. They then argued. He swore and yelled at the complainant. She told him to leave. He ended up inside the house, following her upstairs and yelling at her. When she went into the bathroom to get away from him, he hit the door making a hole in it. She called the Police. When the appellant realised this, he left. The appellant was charged with breaching the protection order and wilful damage.

[35] While on bail, a second incident occurred. He had gone to her house. She allowed him to go and watch their son play rugby. When they returned, there was a heated argument. Despite numerous requests, he refused to leave and ended up pushing the complainant. Neighbours called the Police. The appellant had previous convictions for violence, including male assaults female and breaches of a protection order. Allowing for the aggravating feature of the previous convictions, the sentencing Judge adopted a starting point for the offending of 16 months, allowed a discount of 25 per cent for guilty pleas, resulting in an end sentence of 12 months’ imprisonment. Heath J upheld that sentencing.

[36] The Crown referred to the judgment of the High Court in Palmer v Police.¹⁷

There, the parties had been in a relationship for about five years until late 2008. The relationship was marred by violence. Between late 2008 and March 2014 Mr Palmer

¹⁶ _{Mataiti v New Zealand Police [2014] NZHC 1675.}

¹⁷ Palmer v Police [2015] NZHC 143.

was sentenced for seven offences of breaching protection orders, including a sentence of 4 months’ imprisonment in June 2010. In early September 2014 the complainant had agreed to his spending time with her as a couple. In that context, violence had occurred again as a result of which he faced charges of physical abuse of a protected person, psychological abuse of a protected person and then a separate charge of remaining in a building occupied by a protected person; all offences under the Domestic Violence Act 1995. The High Court considered that a global starting point of 14 months for the three offences was appropriate, having regard at that point to the prior convictions for breaches of a protection order. There was then an uplift of 3 months, having regard to his previous convictions for violent offending beyond the earlier breaches of protection orders. With a discount of 25 per cent for guilty pleas, on appeal the High Court considered an end sentence of 13 months’ imprisonment was appropriate.

[37] The Crown also referred me to the judgment in Beck v Police.¹⁸ The appellant and his victim shared a sporadic relationship of some ten years, marked by a history of domestic violence. A final protection order was made on 20 November

2006. On 1 January 2014, the appellant sent 45 text messages to the victim. In one he said “I am going to put you in a coffin”. The next day the appellant sent numerous text messages and calls, including a text message stating “I’ll see you soon”. He then went to her address and tried unsuccessfully to enter. The victim called the Police. While the Police were present, he continued to try and contact her, calling her cell phone and landline approximately ten times. The appellant had a history of domestic violence including assaults and threats to this particular victim.

[38] On appeal, Mander J held that the Judge’s considered starting points of 10 months in respect of the first breach of the protection order and a five month increase for the further breaches that occurred the following day, were reasonably available. There had been a further uplift of five months to mark the appellant’s criminal history beyond the repeated contravention of the protection order. The High Court considered this uplift was appropriate given that the appellant had regularly committed offences of domestic violence involving assault and intimidation,

_{including offending against the present victim. The Judge considered previous}

¹⁸ Beck v Police [2014] NZHC 931.

convictions were relevant in uplifting an offender’s sentence, particularly where those convictions indicated a tendency to commit a particular type of offence for which the offender was for sentence. Mander J considered the previous offending was relevant where it indicated a defendant had no intention to alter his conduct and there was thus a need for personal deterrence and the need to provide protection to

the victim.¹⁹ The ultimate sentence of 15 months’ imprisonment was thus upheld.

[39] I refer to the Court of Appeal judgment in Mitchell v R.²⁰ The Court was considering the sentencing of a woman for her tenth breach of a protection order. The relevant breach occurred before the increase in the maximum term of imprisonment to three years. The Court of Appeal upheld a starting point sentence for the breach of protection order of 18 months. Asher J considered it was appropriate to take into account the history of “ongoing repetitive, comprehensive breaches of the same protection order against the same person” in assessing the

seriousness of the breach for which the woman was being sentenced.²¹ The Court of

Appeal affirmed this approach, stating:²²

The culpability of this offending could not be fully assessed without taking into account the background history of offending by Ms Mitchell against the two victims. To ignore the history of the relationship would be artificial, and prevent a proper analysis of the gravity of the offending.

[40] In Mataiti v Police, Heath J noted that there is no tariff authority for sentences imposed for breach of protection orders and each case must be considered on its own facts.²³ He also noted the circumstances in which protection orders may be breached very significantly. There may be very minor breaches that do not necessarily evidence a likelihood of violence or psychological abuse. Breaches will be more serious where they occur in the context of “a continuum of intimidation which had an overlay of violence and defiance of Police or Court directions”.²⁴

[41] In a number of cases, Judges in appellate Courts have referred to the need for

_{Courts to uphold protection orders and deal firmly with deliberate breaches of them.}

¹⁹ _{At [20].}

²⁰ _{Mitchell v R [2013] NZCA 583.}

²¹ _{At [5].}

²² _{At [12].}

²³ _{Mataiti v Police, above n [34], at [14].}

²⁴ At [16].

As Morris J remarked in Police v Tule, “Failure to do so means the protection orders are meaningless”.²⁵ Often breaches of protection orders involve conduct which is already unlawful as criminal conduct. If protection orders are going to be effective in further deterring such conduct, Courts have to demonstrate that the breach of a protection order will, by reason of it involving a breach of a Court order, lead to a stern penalty regardless of any penalty that might have been imposed by reason of

the conduct being otherwise unlawful.

Discussion

[42] It has been submitted the sentence imposed on Mr Kumar was manifestly excessive and incommensurate with sentences imposed in comparable cases. I have stood back and considered the particular nature and circumstances of the appellant’s actions on Christmas Day 2014 and the two texts he sent in January 2015. I have noted the January breaches occurred while he was on bail. I have also had regard to his earlier offending, including the breach of a protection order.

[43] Having regard to sentences imposed in other cases, I consider the starting point of 18 months for the offences committed on 25 December 2014 and 21 January

2015 was manifestly excessive. So, too, was the ultimate sentence of 16 months after allowing for the four month uplift and a credit of six months for his guilty plea.

[44] I consider a starting point of 12 months would have been appropriate, including an uplift of three months on account of the previous breach, the offending while on bail and the associated driving while disqualified. I would have allowed a credit of three months for a guilty plea, resulting in an end sentence of nine months. Against that, I consider a sentence of 16 months was manifestly excessive.

Conclusion

[45] The appeal is accordingly allowed. On the two charges of breaching a protection order on 25 December 2014 and the further charge of breaching a

_{protection order on 21 January 2015, the appellant is sentenced to nine months’}

²⁵ Police v Tule HC Rotorua AP87/02, 10 October 2002.

imprisonment. On the charge of driving while disqualified, he is sentenced to one month’s imprisonment to be served concurrently.

[46] On charges for which he was to be re-sentenced (sustained loss of traction x

2, excess blood alcohol, burglary, trespass, obstruction in a public place x 2 and breach of protection order), the sentence of one month’s imprisonment stands. On the charge of refusing to accompany an enforcement officer, imprisonment is not an available sentence. On that charge, the sentence of community work is removed. The original sentence on that charge, of disqualification from holding or obtaining a driver licence for 15 months commencing on 12 December 2013 and supervision for

12 months on special conditions as per the then relevant pre-sentence report, remains.

[47] The further sentence of one month’s imprisonment is cumulative on the nine

months so that Mr Kumar is now sentenced to 10 months’ imprisonment.

[48] Mr Kumar is subject to the standard release conditions until six months after his sentence expiry date together with the special conditions set out in the PAC report provided to the District Court for the sentencing on 17 March 2015. Those special conditions are also to apply for six months following the end of his sentence date.

Solicitors:

Preston Russell Law, Invercargill

Crown Solicitor, Invercargill