Tapsell v R [2022] NZHC 473 (15 March 2022)

Last Updated: 21 March 2022

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2021-412-51 [2022] NZHC 473

UNDER	the Criminal Procedure Act 2011
IN THE MATTER	of an appeal against sentence
BETWEEN	RYAN KARL TAPSELL Appellant
AND	THE QUEEN Respondent

Hearing:	28 February 2022
Counsel:	D L Henderson for Appellant R P Bates for Respondent
Judgment:	15 March 2022

JUDGMENT OF OSBORNE J

(reasons)

This judgment was delivered by me on 15 March 2022 at 4.40 pm

Registrar/Deputy Registrar Date:

TAPSELL v R [2022] NZHC 473 [15 March 2022]

Introduction

• [1] Ryan Tapsell was sentenced in the District Court on a charge of assault,¹ one charge of assault on a person in a family relationship,² and a representative charge of contravening a protection order.³ He had pleaded guilty to those charges, while the Police withdrew a number of other charges.

• [2] On 7 December 2021 Judge Turner sentenced Mr Tapsell to two years four months’ imprisonment on the charge of contravening a protection order, with concurrent sentences of seven months’ imprisonment for assault in a family relationship and three months’ imprisonment for assault (the sentence).⁴ A protection order was also made against Mr Tapsell.

• [3] Mr Tapsell appealed the sentence on the basis the Judge erred by giving insignificant discounts for mitigating factors, resulting in a manifestly excessive sentence. He also appealed the imposition of the protection order. In a Result Judgment I dismissed the appeal, with reasons to follow.⁵

Facts

• [4] The facts were comprehensively set out in the sentencing notes of the District Court judgment. I summarise them below.

• [5] Mr Tapsell was approximately 48 years old at the time of offending. The victim, his partner, was 25 years old. They commenced their relationship in May 2019 and purchased a home together in Dunedin in December 2019.

¹ Crimes Act 1961, s 196: maximum penalty one years’ imprisonment.

² Section 194A: maximum penalty two years’ imprisonment.

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

⁴ R v Tapsell [2021] NZDC 24189 [the sentencing].

⁵ Tapsell v R [2022] NZHC 398.

• [6] On 19 June 2020 the victim obtained a temporary protection order against Mr Tapsell. This order was in force at the time of the subsequent offending.⁶

Assault

• [7] On 1 October 2020 Mr Tapsell became involved in a heated argument with the victim in the living room. Mr Tapsell became annoyed with the victim’s screaming and yelling. Mr Tapsell held the victim down in the corner of the couch and while holding the victim’s face with his hands stated, “I should kill you”.

Assault on a person in a family relationship

• [8] On 5 October 2020 an argument took place between Mr Tapsell and the victim. Mr Tapsell was ignoring the victim as she lay in bed crying. She asked Mr Tapsell a number of times if he was going to ignore her. Eventually Mr Tapsell swore at the victim, accused her of starting the argument and told her to stop “acting the victim”. The victim began yelling at Mr Tapsell and got out of bed. Mr Tapsell followed the victim and pushed her to the floor, squeezing her head with his hands and banging the back of her head on the floor. As Mr Tapsell held the victim’s head in his hands, he said “if you scream one more time I will fucken kill you”.

• [9] The victim sustained minor bruising to her face and pain as a result of the incident.

Breaching a protection order

• [10] Mr Tapsell was arrested on 16 October 2020 and remanded in custody.

• [11] On 20 November 2020 Mr Tapsell was released on electronically monitored (EM) bail to an address in Tauranga. One of his conditions of bail was not to contact or associate with the victim. However, after being released on bail Mr Tapsell kept in regular contact with the victim through an app which deletes messages after a set time. The victim captured some of these messages by taking screen shots.

⁶ But was discharged by the Family Court in April 2021 when the parties entered into a “mutual (no contact) agreement”: see the sentencing, above n 4, at [103].

• [12] In December 2020 Mr Tapsell booked two flights for the victim so she could stay with him in Tauranga. The first flight was at the beginning of December, the last was for mid December. The victim initially thought that during these trips they would go to the bank together and sign re-mortgaging documents. Their house in Dunedin was in partial de-construction and no one was living there, but the mortgage was still being serviced. The victim’s plan was to finish the renovations that had been started and then to sell the house.

• [13] However, in early December Mr Tapsell employed strategies to try to coerce the victim to withdraw the statement she had made to the police. Mr Tapsell mentioned several times that he possessed videos of the victim of an intimate nature. As a result the victim was worried Mr Tapsell would disclose these to others unless she dropped the charges. Mr Tapsell told the victim he would not go to the bank and sign the joint loan documents unless the victim got the charges dropped.

• [14] Faced with these threats, the victim went to the Dunedin Police Station on 9 December 2020 at Mr Tapsell’s suggestion and asked for the complaint to be withdrawn. She was told the prosecution would continue.

• [15] Mr Tapsell then supplied the victim with the name of a Dunedin lawyer for the victim to speak to. Mr Tapsell wanted the lawyer to accompany the victim to the police station and demand the charges be dropped. The victim spoke to the lawyer, who said he could not help her.

• [16] Mr Tapsell then sent a statement to the victim which he had written on her behalf. It was written by Mr Tapsell with no direct input from the victim. The statement said the victim no longer wanted to go to trial, that she was drunk and high on drugs at the time of the assault and at the time the victim was drinking every day. It also said that she could no longer rely on her memory of the event and the incident may not have actually happened. Lastly, it stated the letter sent from prison was not intended for her and contained no threat toward her.

• [17] Mr Tapsell told the victim to set up a meeting with the Dunedin Crown Solicitor’s office, as the prosecutor of the case, and submit the statement to them. He

also demanded that the victim send the prepared statement to Victim Support and have them associate it with the police file so that his lawyer would receive a copy.

• [18] The victim resisted these latest efforts from Mr Tapsell. She approached police on 23 December 2020 and informed them of Mr Tapsell’s actions.

District Court decision

Starting point for sentence

• [19] The District Court Judge first outlined the charges against Mr Tapsell and the circumstances of the offending. He then set an overall starting point of two years six months’ imprisonment. In reaching this starting point, the Judge identified the representative charge of breaching a protection order as the lead offence.

Uplift

• [20] The Judge did not uplift this starting point for Mr Tapsell’s “significant” criminal history (over 60 convictions). This was on the basis there had been no family violence offending since 2011. An uplift for deterrence purposes was therefore not required.⁷

• [21] The Judge assessed a 10 per cent uplift was appropriate for the fact the breach of protection order offending took place while Mr Tapsell was on EM bail and in breach of bail conditions.⁸

Discounts

• [22] After assessing the circumstances in which Mr Tapsell entered his guilty plea, the Judge found a 15 per cent discount to be appropriate, if not generous.⁹ Over the period of a year after Mr Tapsell was first charged there had been alterations to the charges and summary of facts before Mr Tapsell pleaded guilty to the three of these charges. But the Judge found the alterations to the charges all favoured Mr Tapsell in

⁷ The sentencing, above n 4, at [46].

⁸ At [47]–[48].

⁹ At [49]–[56].

a situation where, looking objectively at the summary of facts which Mr Tapsell accepted, it was clear he committed the offences he was originally charged with. The Judge considered Mr Tapsell was fortunate the Crown took the approach it did to avoid the victim experiencing trauma. The Judge also noted that most changes to the summary of facts were a “matter of semantics”.¹⁰ He regarded the strength of the Crown case, which he considered was overwhelming. The Judge also held that as the pleas had been entered after a number of pre-trial appearances and the allocation of a tentative trial date, they had not been entered at the earliest opportunity.

• [23] As to Mr Tapsell’s mitigating factors, the Judge considered Mr Tapsell had shown no remorse over and above that inherent in his guilty pleas.¹¹ He referenced the pre-sentence report, in which Mr Tapsell said the relationship dynamics and consumption of alcohol on a frequent basis by the victim contributed to the offences and that in fact she was the aggressor. The Judge also referred to a letter provided to the Court. He then referenced the submission Ms Henderson had made before him that Mr Tapsell had told a probations officer that the “events happened the other way round” in relation to the first assault on 1 October. The Judge viewed this as another indication Mr Tapsell was not accepting responsibility for his behaviour.

• [24] No discount was given for restorative justice.¹² Both Mr Tapsell and the victim indicated a willingness to attend but the coordinators decided it was not a suitable case. The Judge declined to provide a discount for Mr Tapsell’s willingness to attend as he saw the offer as “no more than a manipulation of the system in order to garner credit in circumstances where [Mr Tapsell] does not accept responsibility for his behaviour”.¹³

• [25] Mr Tapsell offered to pay $500 cash by way of emotional harm reparation payment and to remit for the victim “a bill of $5,000” which relates to work done by Mr Tapsell on house plans before the parties were together. He also offered his skills as a draughtsman to complete plans for the house he and the victim currently own, which needs to be renovated and sold. The Judge did not see any of Mr Tapsell’s

¹⁰ At [54].

¹¹ At [58]–[61].

¹² At [62]–[63].

¹³ At [63].

offers as genuine in the context of him accepting little responsibility for his behaviour. He also noted the offer to draw up plans for the balance of the house work at no cost would allow Mr Tapsell to maintain power and control over the victim. Given these circumstances, the Judge did not grant a discount for Mr Tapsell’s offers.¹⁴

• [26] The Judge also declined to give credit for the time Mr Tapsell spent on EM bail as Mr Tapsell breached the EM bail conditions and offended against the victim in a serious way during that period.¹⁵

• [27] The Judge then considered Mr Tapsell’s personal mitigating circumstances, for which a 15 per cent discount was sought. He recorded there were two supporting documents for this issue. One was a letter of support from a clinical psychologist. The other was a report prepared under s 27 Sentencing Act 2002 (the s 27 report).

• [28] The psychologist had spoken with Mr Tapsell over the course of five days while they were on holiday together. The Judge dismissed this report as it appeared to be drawing conclusions about the events leading to the offending and Mr Tapsell’s life in general. This conflicted with the nature of the letter, which was said to be the letter writer’s considered personal opinion. The Judge also found some of the conclusions conflicted with the findings in the s 27 report.¹⁶

• [29] The Judge then discussed the s 27 report.¹⁷ He summarised this report as outlining Mr Tapsell as a person who was exposed to violence when young, fell in with a group of associates which ultimately lead to criminal behaviour and was allegedly the victim of violence at the hands of authorities. It had previously been explained that a lot of the violence that Mr Tapsell was exposed to was within a familial environment. In relation to Mr Tapsell’s intimate relationships the Judge noted the report of Mr Tapsell having had two relationships with females who “have become antagonistic towards him and who have laid criminal charges on him”.¹⁸ Similarly, the present charges were noted as “relating to a relationship with a female

¹⁴ At [64]–[67].

¹⁵ At [68]–[69].

¹⁶ At [73]–[83].

¹⁷ At [84]–[96].

¹⁸ At [87].

and the allegations she has made against him”.¹⁹ The Judge expressed reservations about the report-writer’s scrutiny of the victim and her actions, noting that it would be a “remarkable coincidence” if all of Mr Tapsell’s previous intimate partners had been psychologically or physically violent towards him. The Judge quoted from passages in the report that contained the suggestion that the “causative factors” of Mr Tapsell’s current offending “may have been driven in some part by [Mr Tapsell’s] difficulty with identifying when he is being manipulated by a female”.²⁰ The Judge concluded there was no causal nexus between on the one hand Mr Tapsell’s upbringing in which he was exposed to violence in two significant households he was raised in and which normalised such behaviour, and the current offending on the other. There was therefore no discount based on the s 27 report.

End sentence

• [30] The Judge then calculated that the end sentence was 28 and a half months (taking into account the 10 per cent uplift and 15 per cent discount from the two years six months starting point). He rounded the sentence down to 28 months.²¹

• [31] The Judge imposed a protection order against Mr Tapsell. He did so after setting out his understanding of the proceedings in the Family Court, which he said involved neither party having a protection order in place against the other, but with a mutual (no contact) agreement having being reached.²²

Appeal issues

• [32] Mr Tapsell appeals both the sentence of 28 months’ imprisonment and the imposition of the protection order.

Principles on appeal

• [33] 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

¹⁹ At [87].

²⁰ At [97]–[98].

²¹ At [97]–[98].

²² At [105]–[110].

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.²³ As the Court of Appeal recorded 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”.²⁴ 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.²⁵

Appellant’s submissions

• [34] Ms Henderson, for Mr Tapsell, submitted the end sentence was manifestly excessive on the basis that Mr Tapsell should have been afforded more credit for his guilty pleas, remorse, reparation/offer of amends, restorative justice, time spent on EM bail and personal circumstances.

Guilty plea

• [35] Ms Henderson emphasised the reduction in sentence afforded for guilty pleas is usually given to acknowledge the saving in costs for a trial, the reduction in back- log for trials and the benefits for victims not required to go through the trial process.²⁶ She submitted that the stage at which the plea is entered is only one consideration in assessing the appropriate discount and that all circumstances of the case need to be assessed. Ms Henderson noted that Mr Tapsell had three lawyers involved in his case, with each lawyer requiring time to view disclosure and properly advise Mr Tapsell. Ms Henderson noted his third lawyer was engaged in June 2021, with resulting advice given in September 2021. Mr Tapsell entered guilty pleas on 6 October 2021. Ms Henderson also reported that negotiations with the Crown had continued and involved lengthy pauses. The summary of facts was reportedly significantly amended, with the final copy being sent to the Court just four days before sentencing. Ms Henderson submitted a 25 per cent reduction for Mr Tapsell’s guilty pleas would be appropriate.

²³ Criminal Procedure Act 2011, ss 250(2) and 250(3).

²⁴ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

²⁵ Ripia v R [2011] NZCA 101 at [15].

²⁶ Citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

Remorse/restorative justice/offer of amends

• [36] Ms Henderson submitted that Mr Tapsell’s genuine remorse may be inferred from his willingness to attend restorative justice, his apology to the victim straight after threatening to kill her, his offer of $500, drafted house plans and the offer to remit a bill. She quoted the pre-sentence report as recording that Mr Tapsell acknowledges his behaviour could be considered as “psychological abuse.” Ms Henderson submitted that Mr Tapsell did not say, in the pre-sentence report, that the relationship dynamic and victim’s alleged alcohol consumption were the only contributors to the offending. She said it was clear from the material that Mr Tapsell knows relationships are an area he struggles in. Ms Henderson further noted that Mr Tapsell’s contention to the probation service that the events in the summary of facts happened “the other way around” was in relation to a scenario in which it is said the victim was the aggressor. Ms Henderson said the summary of facts that was used by probation was not the summary that was used at sentencing.

• [37] Ms Henderson submitted Mr Tapsell’s willingness to attend restorative justice should have attracted some credit, noting that both Crown and defence counsel at the original sentencing considered some discount appropriate.

• [38] As Mr Tapsell was in prison, Ms Henderson noted he had limited funds to offer and the $500 offer as well as his discounting of remuneration for his building plans was what he had available. Ms Henderson said that Mr Tapsell made these genuine offers as he knew there was financial pressure on the victim. Ms Henderson reported the victim’s views on these offers are not known.

• [39] Ms Henderson noted that Mr Tapsell applied, unsuccessfully, for EM bail at a residential rehabilitation facility and informally spoke to two psychologists.

Time spent on EM bail

• [40] Ms Henderson submitted that, as Mr Tapsell was on bail for three months, he was entitled to a discount up to one and a half months.²⁷ She emphasised the Judge

²⁷ Citing Sentencing Act, s 9(2)(h).

had applied an uplift for the fact Mr Tapsell offended while on EM bail, so effectively punished Mr Tapsell twice by not affording him a discount for the time spent on EM bail.

Personal circumstances

• [41] Ms Henderson submitted the Judge erred in dismissing the psychologist’s letter when considering Mr Tapsell’s personal circumstances. She explained the letter was to provide background and context to the offending, with positive comments in the report indicating that Mr Tapsell did not minimise the offending.

• [42] On the s 27 report, Ms Henderson emphasised the following aspects of Mr Tapsell’s background:

(a) the violence he witnessed as a child in two different households;

(b) violence at the hands of police and other partners; and

(c) Mr Tapsell’s comment that some of his other dysfunctional relationships often involved violence initiated by the female (Ms Henderson emphasising the use of the word “often”, rather than “always”).

• [43] Ms Henderson highlighted the comment in the s 27 report that Mr Tapsell has a distorted view of violence due to his exposure at a young age. It is on this basis that she submitted a discount for personal factors should have been made. She submitted reference to Mr Tapsell’s acceptance of responsibility should have been addressed when assessing remorse, rather than personal circumstances.

Protection order

• [44] Ms Henderson recognised the Court’s power under s 123B Sentencing Act to impose a protection order. But, in her submission, it was not appropriate to do so in the circumstances of this case. She noted there had been a temporary protection order in favour of Mr Tapsell’s partner issued in 2020 followed by a Family Court hearing

in relation to the protection order in April 2021. Mr Tapsell indicated at that time he would be seeking a protection order against the victim. The Family Court discharged the temporary protection order. The parties instead put in place the mutual (no contact) agreement.

• [45] Ms Henderson noted the Judge did not have the Family Court file before him. She submitted it was in error to make a protection order without the information on that file as to the parties’ positions in that Court. Ms Henderson submitted also that had the making of a protection order been left to the Family Court with its “much more interactive” approach, Mr Tapsell would have been able to respond and the Judge would have heard from all parties.

Crown’s submissions

• [46] Mr Bates submitted the credit given by the Judge for mitigating factors was appropriate. He also submitted that, if this Court were to find further discounts for mitigating factors should have been given, this would be countered by the lenient starting point the Judge adopted, with the consequence that the end sentence was not manifestly excessive.

Guilty plea

• [47] Mr Bates submitted a maximum discount of 15 per cent should have been given for the guilty plea as it was almost a year to the day between the laying of some of the charges and acknowledgment of guilt by Mr Tapsell. Even with the amendment to charges and minor amendments to the summary of facts, Mr Bates endorsed the Judge’s conclusion that the guilty pleas were not entered at the earliest opportunity.

Remorse/restorative justice/offer of amends

• [48] Mr Bates submitted it was open to the Judge not to apply a discount for remorse and the offers of amends, given the extent to which Mr Tapsell endeavoured to shift a significant portion of blame for the offending to the victim in both the psychologist’s letter and the s 27 report.
• [49] It was submitted the offers of amends by remission of a debt owed to Mr Tapsell for plans done in relation to the house and not charging for the cost of completing the plans could properly be viewed with cynicism as attempts to curry favour with the court.

Time spent on EM bail

• [50] Mr Bates submitted that because Mr Tapsell breached EM bail and further offended against the victim while on EM bail, the Judge was correct in his conclusion that Mr Tapsell should not receive credit for time spent on EM bail.

Personal circumstances

• [51] Mr Bates first noted the Judge considered both the s 27 report and letter of support from the psychologist in great detail. Mr Bates highlighted these documents were both based on considerable self-reporting by Mr Tapsell.

• [52] Mr Bates submitted the psychologist’s letter of support was of no assistance to the Court as it was based on casual discussions the psychologist had with Mr Tapsell while they were on holiday together — it did not fit with the summary of facts or comments made to the probation report writer. Additionally, Mr Bates submitted the letter did not take into account Mr Tapsell’s history of violence with earlier partners and appeared to adopt the blame Mr Tapsell placed on the victim without further investigation. Given these identified issues, Mr Bates submitted the Judge was correct to conclude the letter was of no assistance to the Court.

• [53] Mr Bates submitted there were shortcomings in the s 27 report due to the significant degree of self-reporting and the failure to investigate Mr Tapsell’s earlier relationship histories. Mr Bates argued these shortcomings in the report resulted in a distorted view of Mr Tapsell’s responsibility for both the current and earlier offending. He noted the report writer portrayed Mr Tapsell as the victim of physical and psychological violence from past intimate partners and claimed Mr Tapsell had difficulty identifying when he is being manipulated by a female and how to manage disparate and volatile behaviour from within a relationship. Mr Bates submitted the

report writer suggests the victim and earlier victims bear a responsibility for Mr Tapsell’s offending.

• [54] On this basis, Mr Bates submitted the Judge was correct to conclude there is no nexus between Mr Tapsell’s upbringing and the offending.

Protection order

• [55] Mr Bates submitted that the Judge’s conclusion that the criteria for making a protection order were met was sound having regard to Mr Tapsell’s failure to accept responsibility for the behaviour and because there is likely to have to be communication relating to the parties’ shared property.

Analysis — sentence of two years four months’ imprisonment

Guilty plea

• [56] Hessell v R is the leading authority on the discount that may be given for guilty pleas.²⁸ As noted by Ms Henderson, the primary purpose of a guilty plea discount is to recognise the administrative and social savings of avoiding a trial. The Supreme Court in Hessell also emphasised the credit given must reflect all of the relevant circumstances in which the plea is entered, including “whether it is truly to be regarded as an early or late plea and the strength of the prosecution case”.²⁹ The timing of the guilty plea entry is only one of the relevant circumstances.³⁰

• [57] In Hessell, the Supreme Court noted that guilty pleas are often the result of understandings reached by the accused and prosecution in relation to the charges and admitted facts. The Court considered an example of how a guilty plea may be assessed in its circumstances:³¹

To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea

²⁸ Hessell v R, above n 26.

²⁹ At [74].

³⁰ At [70].

³¹ At [62].

can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending. The only way in which the many variable circumstances of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing judge, and allowing that judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.

• [58] I consider the evaluation of the sentencing Judge and the 15 per cent guilty plea he afforded was appropriate if not generous in the circumstances. The guilty pleas were entered relatively late in the proceeding. Mr Tapsell may have experienced delays due to the engagement of different lawyers and negotiations with the Crown, but he benefited from the alterations to the charges in circumstances where there was a strong Crown case. The changes made to the summary of facts — such as the final change of possession of videos of a “sexual nature” to possession of videos of an “intimate nature”— are minor.

• [59] A 15 per cent discount was within range.

Remorse/restorative justice/offer of amends

• [60] The Judge appropriately assessed the material before him as showing that Mr Tapsell did not accept full responsibility for his offending and often deflected blame to the victim. Although the defendant’s willingness to attend restorative justice may be treated as evidence of remorse, as may his financial offers, it was open to the Judge to assess that there was no genuine remorse from all of the material before him. That he chose to afford significant weight to Mr Tapsell’s deflection of blame, which no doubt affected his assessment of the offers Mr Tapsell made, cannot be an error.

• [61] Even if a credit were afforded for remorse (which I do not find to have been warranted), the discount here could only have come to five per cent.

Time spent on EM bail

• [62] Time spent on EM bail where restrictive conditions are imposed generally attracts a discount equating to less than half the length of time spent on EM bail,³² but this may vary.³³

• [63] It is nonetheless open to the court to decline to recognise the restrictive effect of EM bail in circumstances where the offender breaches these conditions³⁴ or further offends while on EM bail.³⁵ Mr Tapsell spent three months on EM bail, a relatively short length of time. In that time, he breached the conditions of bail and offended in a serious manner by contravening a protection order so frequently that it resulted in a representative charge.

• [64] As any sentencing credit would be derived from Mr Tapsell complying with the EM bail conditions, rather than simply from the imposition of them, the Judge did not err in his approach to time spent on EM bail.

Personal circumstances

• [65] Putting aside the questions as to the helpfulness of the psychologist’s letter, it is clear from the s 27 report that Mr Tapsell experienced violence within a domestic context whilst growing up and suffered marked deprivation. This may well have skewed his perception on how one is to behave in a relationship and his ability to handle conflict. That said, there has been a substantial time since Mr Tapsell began to build a positive life for himself. His criminal history reveals a marked gap in offending from 2011 to 2020. During the time Mr Tapsell had meaningful employment and pursued a pro-social lifestyle. With such a clear break in which Mr Tapsell was able to step away from his lifestyle of offending, the Judge was entitled to conclude that a clear nexus between his upbringing and the current offending was not established.

³² Simon France (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SA9.23A].

³³ Rangi v R [2014] NZCA 524 at [10]

³⁴ Murray-MacGregor v R [2011] NZCA 66; and Gage v R [2014] NZCA 140.

³⁵ Goodman v R [2016] NZCA 64 at [19]–[20]; and R v Gage, above n 34, at [26].

Conclusion as to sentence

• [66] I have found no error in any of the discounts provided, or not provided, by the Judge.

• [67] Standing back, I also find the end sentence to have been within range — it cannot be described as manifestly excessive.

Analysis — protection order

• [68] The making of a protection order in the context of sentencing is governed by s 123B Sentencing Act. This provision allows the sentencing court to make a protection order if an offender is convicted of a family violence offence and there is not currently in force a protection order against the offender under the Family Violence Act 2018. The Court may make a protection order if satisfied the making of the order is necessary for the protection of the victim and the victim of the offence does not object to the making of the order.

• [69] Here, both parties had been before the Family Court in April 2021. The mutual (no contact) arrangement had been put into place.

• [70] The thrust of Ms Henderson’s criticism of the making of the protection order was that it would have been better informed and more fairly considered in the Family Court as a “much more interactive realm”, with both parties able to respond and be heard.

• [71] I find no error in the Judge’s decision to impose a protection order. He gave careful consideration to the permissive power under s 123B Sentencing Act and the facts surrounding Mr Tapsell’s offending relevant to the need for his partner’s protection.³⁶

• [72] Having regard to the thrust of Ms Henderson’s submissions, it is not without significance that s 123B Sentencing Act permits the sentencing court to make a protection order even though family violence proceedings have been filed by the

³⁶ Sentencing, above n 4, at [103]–[110].

victim of the offence, and those proceedings have not yet been determined.³⁷ The Judge in this case correctly observed that the Sentencing Act was amended (from 1 July 2010) to permit a sentencing court to make a protection order so as to provide an expeditious and inexpensive means of immediately protecting those subject to family violence in circumstances where the Court objectively assessed there was a need for protection.³⁸ The circumstances of Mr Tapsell’s (admitted) offending, both with the assaults and the threats of death, pointed irresistibly to a need for protection. The Judge had full regard to the fact, emphasised by Ms Henderson in submissions, that the Family Court, with the parties before it in April 2021, had discharged the temporary protection order and instead left the parties to have a mutual agreement as to non-contact. But, as the Crown submitted and the Judge accepted, the Judge was now sentencing Mr Tapsell in circumstances which involved a material and significant change from the position in April 2021 — Mr Tapsell had pleaded guilty to the incidents of serious family harm offending.³⁹ The Judge was also entitled, in considering whether to make the protection order, to take into account the fact Mr Tapsell had not truly accepted responsibility for his behaviour but had instead minimised his behaviour and blamed the victim.

• [73] Once the Judge had found that the test for making a protection order under s 123B(2) Sentencing Act was established, as he reasonably did, there can be no criticism of his exercising the discretion to make such an order. The alternative suggested for Mr Tapsell — of effectively inviting the parties to take the matter back to the Family Court, when the sentencing Judge had found that s 123B was satisfied

— would have been open to criticism as disregarding the victim’s reasonable needs of protection.

³⁷ The Court of Appeal in Gebbie v R [2019] NZCA 540 at [19] dismissed an appeal against the making of a protection order, applying s 123B Sentencing Act (that is notwithstanding the fact that the victim was seeking a final protection order in the Family Court). (Leave to appeal to the Supreme Court declined in Gebbie v R [2020] NZSC 9).

³⁸ The sentencing, above n 4, at [107].

³⁹ The sentencing, above n 4, at [105].

Outcome

• [74] The appeal was accordingly dismissed.

Osborne J

Solicitors:

Crown Solicitor, Dunedin

Copy to: D Henderson, Barrister, Dunedin