Mitchell v R [2015] NZCA 442 (16 September 2015)

Last Updated: 21 September 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA178/2015 [2015] NZCA 442
BETWEEN	KERRYN MITCHELL Appellant
AND	THE QUEEN Respondent

Hearing:	19 August 2015
Court:	Ellen France P, Courtney and Clifford JJ
Counsel:	N Levy for Appellant M J Lillico and S Bishop for Respondent
Judgment:	16 September 2015 at 3.30 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France P)

Introduction

[1] Kerryn Mitchell was convicted of four counts of breaching a protection order contrary to ss 19(2)(e) and 49(1)(a) of the Domestic Violence Act 1995 after trial by jury in the Wellington District Court. The breaches involved four voice mail messages left by Ms Mitchell for her former partner. She was sentenced by the trial Judge, Judge Tuohy, to four months imprisonment.^[1]
[2] Ms Mitchell appeals against conviction and sentence. Her conviction appeal raises issues about the evidence identifying her as the caller in the voice mails; about whether her knowledge of the protection order was established and as to the admissibility of evidence from a police officer about an admission made by Ms Mitchell.
[3] The sentence appeal is brought on the basis her sentence was manifestly excessive.

Background

[4] Ms Mitchell and the complainant were in a relationship that began in 2002 and ended about four years later. The complainant obtained an interim protection order against Ms Mitchell in November 2007. That order became final in April 2008. Ms Mitchell has been convicted of breaching that order on a number of occasions.^[2]
[5] The present appeal relates to a trial in which Ms Mitchell faced ten counts of breach of that protection order. Five of the counts related to text messages the Crown said Ms Mitchell sent to the complainant in October 2012. A further charge concerned a letter the Crown alleged Ms Mitchell sent to the complainant in early February 2013. Finally, there were four charges relating to voice mail messages Ms Mitchell left for the complainant in the early hours of 4 November 2012.
[6] Ms Mitchell was acquitted on the charges relating to text messages and the letter. She was convicted of four charges relating to the voice mail messages.
[7] When these matters came to trial before Judge Tuohy in February 2015, Ms Mitchell had already served the term of two years, one month

imprisonment for subsequent offending in relation to the same complainant in December 2012. This term of imprisonment had been imposed by Judge Becroft.^[3]

Conviction appeal

[8] We deal with the three issues raised in turn.

Voice identification

[9] The complainant gave evidence about being in a relationship with Ms Mitchell for about four years. He explained that they maintained separate addresses over the course of their relationship but that “most of the time [Ms Mitchell] stayed with [him]”. The complainant said he recognised Ms Mitchell’s voice on the voice mail messages and said he was very sure about this. It was suggested to him in cross-examination that the voice on the phone was affected by alcohol. He said he had spoken to Ms Mitchell while she had been affected by alcohol.
[10] The voice mail messages referred to the complainant’s first name and one was to the effect that the complainant was to “get the protection order off me and we’ll all live happy ever after”.
[11] On appeal Ms Mitchell argues the evidence of voice identification is not reliable and should not have been admitted. Ms Levy emphasises in this respect, first, the relationship broke up some six years prior to the calls and the trial did not take place until early 2015, some three years after the calls were made. Second, the messages were downloaded from the phone to software and then on to a disk and this process may have affected the quality of the sound. Third, the complainant was wrong initially in his evidence as to the date when the relationship ended (he initially said it was over in 2002 and then corrected that to 2006).
[12] Admissibility of this evidence was subject to a ruling during the course of the trial after the Crown raised the issue with the Judge.^[4] Judge Tuohy concluded that the evidence was reliable. He referred to the evidence of the relationship between the complainant and Ms Mitchell and said:^[5]

He can therefore be expected to know her voice very well and to recognise it, including when it is recorded or heard through a phone connection. Further, the quality of the voice message was good and [the complainant] was sure of his recognition.

[13] We agree for the reasons given by the Judge that the evidence was admissible. Although there was some gap in time, the complainant knew Ms Mitchell’s voice well. Further, the quality of the recording was described by the Judge as good.^[6] Finally, although the confidence of the witness alone is not sufficient to establish reliability this was a factor supporting the Judge’s finding.^[7]
[14] Ms Levy accepted that if the evidence was properly admitted, no criticism could be made of the warning given by the Judge in summing-up to the jury about the dangers of this identification evidence. We agree.

Knowledge of protection order

[15] Evidence was given at the trial from Emily Sua, a process server. She gave evidence of proof of service of the protection order on Ms Mitchell on 19 May 2008.
[16] On appeal, Ms Mitchell points out that the Judge in summing-up incorrectly stated “and obviously the Crown ask you to infer from the fact that she was served with it and signed for it”.^[8] That statement was incorrect because there was no evidence that Ms Mitchell signed for the protection order. Rather, Ms Sua signed a document as to proof of service. The submission is that Ms Mitchell’s knowledge of the protection order was a live issue and the Judge’s misdirection could have had an impact. It is submitted the danger is the jury inferred knowledge of the protection order from what the Judge said rather than from assessing other evidence, particularly the voice identification evidence. As to the latter, the Crown relied on the caller’s reference to the complainant “get[ting] the protection order off me”.
[17] The Crown accepts that it was a mistake by the Judge to refer to Ms Mitchell having signed for the protection order. However, it is submitted this slip cannot have affected the outcome of the trial. We agree. The accuracy of proof of service of the protection order was not challenged at trial. Counsel for Ms Mitchell (not Ms Levy) did ask Ms Sua whether she had any independent recollection of service. Not surprisingly, she did not. But it was not put to Ms Sua that she did not serve the protection order or that her proof of service was inaccurate. Rather, the thrust of the defence was about authorship and that proved successful in relation to the other counts in the indictment.
[18] In these circumstances, the mistake by the Judge was a minor slip that could not have had any adverse impact in the circumstances.

Admissibility of evidence from Senior Sergeant Thomas

[19] Senior Sergeant Thomas gave evidence of events occurring when he was stationed at Lower Hutt Police Station on 4 November 2012. He said that at around 4 am he was told that Ms Mitchell was at the counter. His evidence was that Ms Mitchell said to him she was reporting a crime, namely, “breach of a protection order”. His evidence was that she said “I breached it”. When asked how, she said she had “sent him a text”. The officer said that he did not know what protection order Ms Mitchell was speaking about but he did know there was a protection order in favour of her former partner against her. He was not aware of any other protection order.
[20] On appeal, Ms Mitchell says it was wrong for the Crown to rely on this evidence as showing Ms Mitchell “admitted to contacting [the complainant] when she went into the [police station] at 4.15 am on the 4th of November 2012 and spoke to Senior Sergeant Thomas”. Ms Levy submits that it was not clear on the evidence that Ms Mitchell was referring to this particular protection order. Further, she says the Judge should have warned the jury about relying on the statement in relation to Ms Mitchell’s knowledge of the protection order.
[21] We consider this evidence was a strand of circumstantial evidence admissible and properly relied on by the Crown as part of the evidence Ms Mitchell knew about the protection order. It may not have been a particularly strong strand but it could be put into the mix. It is relevant in this respect that, first, the police officer was not aware of any other protection orders against Ms Mitchell apart from the one relating to the complainant. Second, the timing of her visit to the police station was very soon after the voice mail messages were left. Finally, it was not suggested to Senior Sergeant Thomas in cross-examination that there were other protection orders. It may be that the defence was simply relying on gaps in the Crown case in that respect but the end result is that we have no knowledge of any other protection order to which Ms Mitchell may have been referring.

Sentence appeal

[22] Judge Tuohy was faced with the need to deal with the fact Ms Mitchell had served a term of two years and one month imprisonment for offending committed very shortly after the current offending. He approached this matter by considering what the appropriate sentence would be if Ms Mitchell had been sentenced immediately after the event. On this basis, the Judge took the view that a sentence of eight months imprisonment would have been appropriate. That reflected a recognition that the current offending was “of a much lesser category intrinsically”^[9] but also “[Ms Mitchell’s] appalling record of breaches of this protection order, a record of sustained harassment and persecution of the protected person which puts this case in a category of its own”.^[10]
[23] From the eight months, Judge Tuohy deducted four months to reflect totality leaving an end sentence of four months imprisonment.
[24] Ms Levy submits that the sentence was manifestly excessive essentially on the basis too much weight was given to Ms Mitchell’s previous offending. Therefore, as was the case in Wallace v R “by its length, [the sentence] tends to punish the appellant again for past offending”.^[11] She acknowledged that counsel at sentencing for Ms Mitchell conceded that a term of imprisonment was necessary but, it is submitted, a lesser term should have been imposed.
[25] We agree that the starting point of eight months imprisonment was towards the top of the range. Although it is relevant that these charges reflect multiple breaches and are part of a continuum of ongoing breaches, these particular instances are at the lower end of the scale.
[26] That said, one way of assessing the appropriateness of the sentence is to consider how Judge Becroft may have addressed the matter if sentencing Ms Mitchell at the same time for these charges as well as the other charges. On this analysis, we accept the Crown submission that a term of two years, five months would not have been out of range. The imposition effectively of four months imprisonment on top of the sentence given is, as Mr Lillico submits, an available response to Ms Mitchell’s relentless and continuous behaviour. That behaviour has continued for some four years after the protection order was first made. It is also relevant that the voice mail messages are abusive and threatening. It may be that the question of totality required a slightly shorter term but such a reduction is so minimal that it would be inappropriate for us to interfere where Ms Mitchell has served this term of imprisonment.

Postscript

[27] Ms Levy became involved in the appeal late in the piece and we acknowledge her assistance. We have addressed the matters she highlighted in her oral submissions, which captured the concerns expressed by Ms Mitchell in her written submissions. To the extent that the written submissions cover other matters we are satisfied that none of these give rise to a miscarriage of justice.

Result

[28] For these reasons, the appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Mitchell [2015] NZDC 6871 [sentencing notes].

^[2] Sentencing notes, above n 1, at [5]. See also, for example, R v Mitchell [2015] NZCA 441 at [7]–[15]; and Mitchell v R [2013] NZCA 583 at [3].

^[3] R v Mitchell DC Wellington CRI-2012-032-3561, 10 September 2013. This sentence was imposed after Ms Mitchell pleaded guilty to one count of intentional damage and one count of breach of a protection order involving entry onto the land of the protected person. The sentence was upheld on appeal: Mitchell v R, above n 2.

^[4] R v Mitchell DC Wellington CRI-2014-004-3229, 17 February 2015 (Ruling 1 of Judge C N Tuohy).

^[5] At [4].

^[6] R v Hohipa [2015] NZCA 73 at [73].

^[7] Harney v Police [2012] NZSC 107, [2012] 1 NZLR 725 at [33].

^[8] Emphasis added.

^[9] Sentencing notes, above n 1, at [12].

^[10] At [5].

^[11] Wallace v R [2012] NZCA 546 at [26].