The Queen v Nathan [2006] NZCA 320 (29 November 2006)

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The Queen v Nathan [2006] NZCA 320 (29 November 2006)

Last Updated: 6 December 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA209/06

THE QUEEN



v



BENJAMIN PERI NATHAN

Hearing: 20 November 2006

Court: Glazebrook, John Hansen and Harrison JJ

Counsel: M A Corlett for Crown
Respondent in Person

Judgment: 29 November 2006 at 3pm

JUDGMENT OF THE COURT

On 20 November 2006, the Solicitor General’s application for leave to appeal was dismissed. These are the reasons for judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by John Hansen J)

Introduction

[1]	The Solicitor General applies for leave to appeal against the sentence of 150 hours of community work imposed on Mr Nathan in the District Court at Whangarei on 7 June 2006 on two counts of contravening a protection order in breach of s 19 and s 49 of the Domestic Violence Act 1995. The sentence is said to be manifestly inadequate.
[2]	At the conclusion of the hearing we dismissed the appeal with written reasons to be given later. These are our reasons.
[3]	Mr Nathan was charged with two offences of breaching protection orders in contravention of the Domestic Violence Act 1995. The first charge related to a number of text messages sent to a protected person, his former partner. The second related to a letter he sent her. Mr Nathan had five previous convictions for breaches of the same protection order. In respect of the final three of those he was sentenced to 250 hours community work and nine months supervision. This sentence was said to be a final warning.
[4]	Mr Nathan initially pleaded not guilty to the two charges that are the subject of this appeal. However, after depositions, following a sentence indication of community work, he entered pleas of guilty.

Background facts

[5]	In November of 2004 the complainant obtained a temporary protection order against Mr Nathan in the Nelson Family Court. Two weeks later this was breached by Mr Nathan asking a mutual friend to pass on a threatening message. On 15 December he was convicted in the Waitakere District Court on one charge of contravening a protection order, and ordered to come up for sentence if called upon.
[6]	On 5 January 2005 he again breached the order by travelling to the complainant’s house in Nelson. He did not leave the property until the police removed him, and as he left he shouted "It’s not over (the complainant’s name). I will be back. I’ll be in Nelson for a while now, I’ll be back." The next day he was convicted and discharged in the Nelson District Court on two charges of contravening a protection order.
[7]	On the day of the sentencing Mr Nathan again breached the order by emailing the complainant. The next day he sent another email and a text message. On 15 January he left a message on the complainant's answering machine, and on 18 January he went to the house uninvited. On this latter occasion, once he was inside, he threatened a male visitor and said that he would kill the complainant’s new boyfriend who was not present. He spent an hour and a half in the house intimidating the occupants. The complainant was able to send a text message to a friend who called the police. When they arrived Mr Nathan fled, and when he was caught he told the attending officers that the protection order did not apply to him, stating "I’ll do jail for this but I’ll be back!".
[8]	In relation to these incidents he was convicted in the Nelson District Court on three counts of contravening a protection order. On 8 February he was sentenced to 250 hours of community work, as well as nine months supervision. He was given a final warning. Two days later, on 10 February 2005, the complainant was granted a final protection order by the Nelson Family Court.
[9]	Mr Nathan then moved back to Whangarei, but on 6 July 2005 he breached the order for the seventh time by sending 21 text messages to the complainant over a two and a half hour period. On 3 September 2005 he breached again by sending her a letter. It is accepted that these text messages and letter contained no direct threats and effectively sought forgiveness for his earlier behaviour.
[10]	Mr Nathan was charged with two counts of contravening a protection order on 10 October 2005. On 19 December 2005 a depositions hearing was held in Whangarei District Court. The victim travelled to Whangarei to given evidence in person, and other evidence was given by statement. Mr Nathan represented himself, and cross-examined the complainant. At the conclusion of the depositions Mr Nathan was committed for trial.

The sentencing

[11]	On 6 June 2006, in the course of a pre-trial callover, Mr Nathan asked for a sentence indication. His counsel was engaged in another courtroom and he was representing himself. Apparently Mr Nathan wished to bring some finality to the matter. Judge Behrens QC, adjourned the matter over night. In the meantime, a probation officer prepared a letter for the Court and the Crown obtained a further Victim Impact Statement.
[12]	The letter from the probation officer confirmed that Mr Nathan had completed 250 hours community work without incident.
[13]	The next day Judge Behrens QC, heard submissions from defence counsel and was given the Victim Impact Statement and the probation officer’s letter. He had Mr Nathan’s criminal and traffic history, and a summary of facts. He indicated that on the basis of this information a sentence of community work would be appropriate.
[14]	The Judge, while accepting the text messages and the letter did not contain threats, said "I think the threat is the actual writing and the texting, never mind the content."
[15]	The Judge declined to place any emphasis on the final warning given in the Nelson District Court. The factors weighing most heavily with the Judge were Mr Nathan having completed his previous sentence of community work without incident; his attendance at counselling and meetings with his probation officer as required; and the conclusion that he was in the process of turning his life around.
[16]	Following the sentence indication Mr Nathan pleaded guilty, and he made a statement from the dock in which he claimed that he was the victim in the matter, and the complainant "...should be in prison for life" for her "betrayal." He reiterated his view that the correspondence was not threatening and repeatedly stated the complainant had lied throughout the proceedings.
[17]	The Judge found Mr Nathan had completed his community work satisfactorily. He noted Mr Nathan appeared to have an alcohol problem, but accepted that Mr Nathan had thought hard and long about his previous life and the relationship, and that he decided to break clear of that. The Judge had earlier stated in the course of the sentencing indication that he accepted Mr Nathan was serious and genuine about attempting to turn his life around, and that weighed the most with him. In sentencing Mr Nathan to 150 hours of community work his focus was rehabilitative.

Submissions

[18]	Mr Corlett, on behalf of the Crown, submitted that the Judge erred in a number of respects. First, by failing to identify as an aggravating factor that Mr Nathan offended while subject to an order of supervision. Secondly, in failing to recognise the previous convictions as a significant aggravating factor, particularly in light of the final warning given in February 2005. Thirdly, failing to identify the importance of the purposes of deterrence and protection of the public, as indicated by appellate authorities. Fourthly, incorrectly identifying Mr Nathan being on bail as a factor warranting a reduction in the sentence, and, fifthly, giving an overly generous discount for mitigating factors.
[19]	Mr Corlett submitted that these errors contributed to an imposition of an overall sentence that did not reflect the seriousness of the offending and the real need for specific and general deterrence. He submitted the error was such the sentence should be considered afresh.
[20]	While Mr Corlett accepted there were no tariff, or guideline, judgments of this Court he submitted appellate decisions suggest that the Courts have moved towards imposing short terms of imprisonment for repeat offenders. He cited R v Cartwright CA174/02 27 August 2004 where this Court said at [24]:

Although on previous occasions the appellant may only have been fined on one occasion and convicted and discharged on another for breaches of the protection order, the point is reached where, if there is to be any integrity in the system, there must be penalties which have some bite. With third and fourth offences within a period of six months, that time has certainly arrived.

[21]	Mr Corlett also relied on two High Court decisions Keenan v Police HC PMN CRI-2005-454-59 13 December 2005, Gendall J, and Walker v Police HC AK CRI-2004-404-362 8 August 2005, Potter J, to like effect.
[22]	Mr Corlett further submitted that there were no mitigating factors present in this case that would justify a reduction in sentence. He submitted no significant discount could be given for the guilty plea in light of the statements made from the dock. He also submitted the plea came so late that it did not prevent the complainant from having to give evidence at depositions, where she was cross-examined by Mr Nathan. The fact he had been on bail for eight months did not warrant a reduction, and the only limited credit the Judge should have given was for Mr Nathan’s efforts to turn his life around. He submitted, however, the mitigating factors did not justify a sentence more lenient than the sentence imposed in February.
[23]	Mr Nathan maintained his position that the contents of the texts and the letter were non-threatening. He stressed that he had turned his life around, and there had been no contact whatsoever with the complainant since this offending. He said he was in a new relationship and had no intention, or desire, to contact the complainant at any stage. He also submitted that his guilty plea was entered to bring finality after the community based sentence was indicated. He said if a sentence of imprisonment was to be substituted he would wish to have the opportunity to plead not guilty and defend the charges.

Discussion

[24]	The principles applicable to Crown appeals was set forth by this Court in R v Donaldson (1997) 14 CRNZ 537 at 549 - 550:

A Solicitor-General's appeal
It is established that a sentence should not be increased pursuant to a Solicitor-General's appeal unless, on a review of the facts and circumstances of the case, it is clear that the sentence which was imposed is manifestly inadequate (R v Wihapi [1976] 1 NZLR 422, 424 (CA)) or the Crown is able to point to some error in principle upon which the trial Judge acted. See R v Pue [1974] 2 NZLR 392 (CA), at p 392 et seq. It is also settled that considerations which justify an increase in sentence must be more compelling than those which might justify a reduction. Thus, in R v Wihapi the Court held (at p 424) that the considerations justifying an increase must "speak more powerfully than those which justify a reduction" and that the Court "is more reluctant to increase than it is to reduce a sentence". Similarly, in R v Beaman unreported, 16 November 1982, CA177/82 the Court said (at p 7) that it would only increase the sentence in "clear cut" cases. Again, care must be taken to ensure that the Court does not override the sentencing Judge's discretion to take a merciful approach or to adopt a course calculated to achieve rehabilitation, even in cases which would normally call for a deterrent sentence, particularly if the sentencing Judge has presided over the trial and therefore had the opportunity to see and hear the witnesses and make an assessment of the offender's culpability. See R v Wihapi (supra, at p 424) and R v Hunter [1985] 1 NZLR 115, 121 (CA). Even if the Court determines that the sentence is manifestly inadequate or based upon a wrong principle, it will still be reluctant to interfere if this would cause injustice to the offender. In particular, the Court will be more disinclined to interfere where a community-based sentence has been imposed and conditions which were ordered have been complied with than where an inadequate custodial sentence is in issue. See R v Clark unreported, 10 March 1981, CA266/81, at pp 4, 5; R v Parker unreported, 29 April 1988, CA246/87, at p 7; and R v Peters unreported, 11 April 1986, CA309/85 at pp 8, 9. See also Hall, Sentencing in New Zealand, App II, 5.5-5.11, and Adams on Criminal Law, Wellington, Brooker's, 1992, vol 2, Ch3.6.12.
These principles reflect the Court's appreciation of the harsh effect of substituting a non-custodial sentence for a prison sentence. In many circumstances there can be an element of inhumanity in doing so. An offender must initially look at his or her pending sentencing with considerable trepidation and, in many cases, intense hope that a non-custodial sentence will be imposed, especially when that prospect is encouraged by their counsel. If in real jeopardy they will almost certainly be overwhelmed with relief if they in fact receive a non-custodial sentence. Although they will in all probability be advised of the right of appeal statutorily vested in the Solicitor-General and be apprehensive, they must necessarily feel elated that the primary sentencing process has been completed and imprisonment has been avoided. Hope may convert itself into confidence that the Judge's sentence will be upheld. In the meantime they have been at liberty. They have rejoined their family or friends and returned to their work and daily routine. They may have undertaken treatment or therapy where that has been recommended or stipulated as a condition, and such treatment may well be proving successful. With an appreciation of these considerations any decision to reverse a non-custodial sentence and replace it with a term of imprisonment is not lightly undertaken. The Court, indeed, is most reluctant to do so.

[25]	The Domestic Violence Act 1995 put in place a statutory scheme for the protection of women. We accept the Crown’s submission that repeated breaches of protection orders calls for a condign sentencing response. In cases where there have been repeat offending over a brief period of time a short term of imprisonment is the proper response. While the messages conveyed in breach of the order in this case were not threatening in themselves, we agree with the sentencing Judge that "The threat is the actual writing and the texting, never mind the content." It is the very sort of harassment that the Act was designed to protect women from. There were the significant aggravating features present that the Crown identified. In the light of those features, Mr Nathan’s statements from the dock and the lack of any substantive mitigating features the sentencing Judge should have imposed a short custodial sentence.
[26]	However, for two reasons we are satisfied the Solicitor General’s application must fail. The first reason can be found in the passage cited from Donaldson at [24]. While we accept that persistent breaches such as this should be met with a short term of imprisonment, this Court is disinclined to interfere with community based sentences where the conditions that have been ordered have been complied with. It is clear from the letter from probation that this man has complied with the earlier sentence of community work, and is complying with all other conditions. Imposing a custodial sentence in such circumstances is not to be taken lightly. In this case there is the added factor of the sentence indication that led to Mr Nathan’s guilty pleas.
[27]	The second reason is while we are satisfied that at the time of sentencing the Judge should have imposed a custodial sentence, the circumstances have changed significantly since then. Mr Nathan has continued with his efforts to turn his life around, and has made significant progress in breaking his pattern of recidivist behaviour. He is involved in worthy community work in the Whangarei area. Over a year has passed since his convictions, and there has been no further contact with the complainant. Those significant changes also satisfy us, in the peculiar circumstances of this case, it would be inappropriate to substitute a custodial sentence for the community based one imposed.
[28]	Accordingly, whilst such repeat breaches of protection orders ought normally to be met by short terms of imprisonment, for the reasons set out above we dismissed the Solicitor General’s application for leave to appeal.

Solicitors
Crown Law Office, Wellington