Police v Greenwood [2017] NZDC 6209 (23 March 2017)

Last Updated: 4 September 2017

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT DUNEDIN

CRI-2016-012-001089 [2017] NZDC 6209

NEW ZEALAND POLICE

Prosecutor

V

[LOUIS GREENWOOD]

_Defendant

Hearing:	23 March 2017
Appearances:	T Hambleton for the Prosecutor J Takas for the Defendant
Judgment:	23 March 2017

_{NOTES OF JUDGE M B T TURNER ON SENTENCING}

[1] [Louis Greenwood], you are for sentence this afternoon on the following charges:

(a) That on [date deleted] December 2015 you wilfully trespassed on the victim’s property at Dunedin; that carries a maximum sentence of three months’ imprisonment. You entered a late guilty plea to that charge.

(b) On 9 December you threatened to kill [the victim]; that charge carries

a maximum sentence of seven years’ imprisonment. I found you guilty on that charge following a Judge alone trial.

POLICE v [GREENWOOD] [2017] NZDC 6209 [23 March 2017]

(c) While on bail for those charges, you having been released on bail on

15 December in respect of the trespass charge, you committed the following offences:

(i) Between 20 and 30 December 2015 you breached a sentence of supervision; the charge is brought as a representative charge and carries a maximum sentence of three months’ imprisonment. You entered an early guilty plea to that charge.

(ii) Between 14 March and 18 March 2016 you breached a sentence of supervision, also brought on a representative basis, and carrying a maximum sentence of three months’ imprisonment. You entered a not guilty plea initially but later changed your plea to guilty.

(iii) Between 21 and 22 March 2016 you committed the offence of burglary, carrying a maximum sentence of 10 years’ imprisonment. A late guilty plea was entered to that charge.

(iv) On 21 April 2016 you failed to answer to your District Court bail; that charge carries a maximum sentence of one year in prison. You entered a guilty plea to that charge.

(v) On 29 April 2016 you drove whilst forbidden, a fine only offence. An early guilty plea was entered.

(vi) On the same day, 29 April 2016, you drove with an excess breath alcohol level of 576 micrograms, carrying a maximum sentence of three months’ imprisonment. You entered an early guilty plea to that charge.

(vii) On the same date you unlawfully took a motor vehicle, carrying a maximum sentence of seven years’ imprisonment. A late guilty plea was entered to that charge.

(viii) On 2 May 2016, being a male assaulted a female, carrying a maximum sentence of two years’ imprisonment. You entered an early guilty plea but disputed the facts.

(ix) On 10 May 2016 you drove while your licence was suspended; that offence carries a maximum sentence of three months’ imprisonment. An early guilty plea was entered.

(x) On the following day, 11 May 2016, you again drove whilst your licence was suspended. An early guilty plea was entered.

(xi) Finally, on 12 May 2016 you failed to answer to your District

_{Court bail. An early guilty plea was entered.}

Facts

[2] The facts on which I sentence you are as follows: on 9 December 2015 at around lunch time you were a passenger in your associate’s motor vehicle, parked in the driveway of the victim’s residence. The victim and your father had been in a relationship. While seated in the car you yelled abuse at the victim while she was talking to your associate at the front doorstep. In the course of that conduct you said to the victim, “You're dead.” As you spoke those words your demeanour was described as intimidating. You pleaded guilty to trespass but denied the threaten to kill charge.

[3] At the conclusion of the Judge-alone trial, I rejected evidence called on your behalf and accepted the evidence of the victim. In doing so I was satisfied, beyond reasonable doubt, you had threatened to kill her using the words referred to.

[4] Your offending had a significant effect on the victim who in her victim impact statement describes herself as being petrified after the incident.

[5] You were released on bail, as I have noted, on 15 December in respect of the trespass charge. The first charge of breaching your sentence of supervision, charging document 006, relates to you repeatedly associating with a [victim 2], having been

directed both orally and in writing not to associate with her. You were on a sentence of supervision as a consequence of convictions for assault, threatening to kill and intentional damage, [victim 2] being the victim of that offending.

[6] You deliberately refused to accept probation’s prohibition. On 20 December

2015 you associated with her at an address in [location deleted]. A family harm incident occurred resulting in police attending the address that day.

[7] You again associated with [victim 2] on other dates including 5 January 2016. The second charge of breach of the sentence of supervision relates to events between

14 and 18 March 2016 and involved the same breach, you contacting [victim 2] contrary to the specific prohibition about doing so. The supervision sentence expired on 21 July 2016.

[8] In relation to the burglary charge, between 7.40 pm and midnight on

21 March, you and an associate were walking on a track between [locations deleted]. A plan was hatched to break into a local fish and chips shop to steal the cash register. You and your associate smashed the glass on the front door, unlocked the door, entered the shop, pulled power cables from a multi box to disconnect the till from its power source and left the shop with the cash register and about $30 of confectionary in a glass jar. When you endeavoured to leave the area the jar was broken and the cash register was damaged.

[9] You later divided up the contents of the cash register, and the lollies taken, between yourselves. As a consequence of pulling out various power cables freezers and chillers were turned off resulting in their contents thawing and becoming unusable.

[10] When later spoken to by police you denied your involvement but accepted harbouring the co-offender and his associates after the fact. The victim impact statement filed by the owner of the shop refers to the consequences of the offending on him – he initially discovering the break in, having to clean the premises, having to replace the items taken and the damage caused, ongoing issues with his insurance company and the general emotional toll your offending took on him.

[11] On 21 April 2016 you failed to answer to your District Court bail. The facts speak for themselves.

[12] Three charges arise out of your conduct on 29 April last year; at about

7.45 am you unlawfully took a motor scooter and later parked it in Moray Place in Dunedin. Police saw you riding the vehicle without a helmet and stopped you. You showed signs of recently consuming alcohol and an evidential breath test returned a level of 576 micrograms of alcohol per litre of breath. Enquiries revealed you had been forbidden to drive (on 15 March 2010) until such time as you had obtained your driver’s licence.

[13] You told police the bike belonged to a friend and you were simply driving it home. The bike was impounded. Ultimately, the victim had to pay fees to have it released. It was also damaged. His victim impact statement refers to the consequences of your offending on him, he noting that the scooter was used on a daily basis to get to and from work.

[14] In relation to the male assaults female charge, just before 9.00 am on 2 May you were in the bedroom of your mother’s home demanding that she provide you with a cigarette. It is said you were acting aggressively but also breaching conditions of supervision by associating with [victim 2]. Your mother told [victim 2] to leave the home and tried to move her out of the house. Your response was to put your mother in a headlock, place pressure on her neck and this caused her to pass out.

[15] The victim impact statement from your mother confirms that she did not receive lasting injuries but she was shocked at your violence towards her. She says your behaviour over the last two years has caused her considerable stress and anxiety.

[16] On 10 May 2016 you were seen driving a motor car out of a supermarket carpark in Kaikorai Valley Road. You drove at speed along that road and police were not able to apprehend you at the time. The following day, 11 May, at about 6.50 pm

you drove the same car in Port Chalmers and were observed turning into

Burns Street before abandoning the vehicle on Bellevue Place.

[17] On 12 May you failed to answer to your District Court bail and a warrant for your arrest was issued. You appeared in Court on 20 May 2016 and have been in custody since that time.

Previous History

[18] Prior to this offending you had 10 convictions for offences including: speaking threateningly and common assault occurring in a domestic setting, a conviction for a breach of a sentence of community work, convictions for driving with an excess breath alcohol level, driving whilst forbidden and driving whilst disqualified.

Pre-sentence Report

[19] In March 2015 you were imprisoned following conviction on two charges of breaching a sentence of community work.

[20] Your risk of re-offending was assessed by probation as high, based on your historical and recent offending pattern. Your risk of harming others was assessed as medium, having regard to your history. The risk is said to be elevated when you are under the influence of alcohol.

[21] You acknowledged this when you spoke to the probation officer, stating that alcohol had contributed too much of your offending. You told the probation officer you were not involved in the burglary offence. That of course is at odds with the guilty plea entered to the charge.

[22] While you stated you were motivated to address offending related behaviour and undertake rehabilitative programmes, probation notes that you have a history of poor compliance with community-based sentences, having committed 13 offences whilst subject to bail conditions. In these circumstances a sentence of imprisonment

is recommended by probation although it is also noted in the most recent report that a potential home detention address is available to you in [location deleted].

Sentencing Principles

[23] The primary sentencing purposes today, [Mr Greenwood], are these; to denounce your behaviour and to deter you personally, and others, from behaving in this way in the future; to hold you accountable for the harm you have caused to your victims and community by the offending, to provide, if possible, for the interests of the victims and to assist in your rehabilitation.

[24] In determining an appropriate starting point I need to have regard to the gravity, the seriousness of your offending, which I consider to be high in this case. I adopt a starting point of six months’ imprisonment for the charges of threatening to kill and trespass. The threat was made directly to the victim at her home address, a property you knew you were not entitled to enter. It was contained in a barrage of abuse intended to affect the mind of the victim. I take account of the consequences of the offending on her.

[25] The two representative charges of breaching conditions of supervision involved you repeatedly, that is over a period of many months, associating with the person you had previously offended against and must, in these circumstances, be seen as a wilful challenge to the authority of the probation officer and the sentence of the Court. I uplift the initial starting point by two months for this offending.

[26] The burglary involved an element of premeditation, albeit it was unsophisticated offending, considerable damage and disruption to the operation of the commercial enterprise was caused. I take account of the impact of your offending on the victim and uplift the starting point by eight months.

[27] The charges of unlawfully taking a motor vehicle and excess breath alcohol involve you driving whilst forbidden, taking someone else’s property and driving with a breath alcohol level 576 micrograms above that permitted for you. I uplift the sentence by a total of four months for this offending.

[28] You assaulted your mother by strangulation, causing her to lose consciousness and fall to the floor. This was a serious assault, in her home, a place where she should have felt safe. It arose because she remonstrated with you about your repeated failure to comply with probation’s condition that you not associate with [victim 2]. The offending involved a significant breach of trust, the use of force against a vulnerable person and an attack to the head. I uplift the starting point of 12 months’ imprisonment for this offending.

[29] You drove on 10 and 11 May 2016 while your licence was suspended. On one occasion you accelerated at speed such that the police were not able to pursue your vehicle. On the other occasion you fled on foot. I uplift the starting point by two months for that offending.

[30] Finally, the starting point is uplifted by a further one month for the two charges of failing to answer to your District Court bail.

[31] The total starting point therefore, before other adjustments, is 35 months’ imprisonment. That needs to be uplifted for two matters; first the fact that you were on bail and on a Court sentence at the time of the offending, an uplift of three months is warranted; and secondly, your previous relevant convictions for breaching Court sentences, driving with an excess breath alcohol level, driving whilst disqualified and assault requires an uplift of two months for personal deterrence. The total adjusted starting point is 40 months, three years and four months’ imprisonment.

[32] You receive no credit in respect of the charge of threatening to kill, which proceeded to a Judge-alone trial. Late guilty pleas; that is after the entry of not guilty pleas months earlier, were entered to charges of burglary, unlawfully taking a motor vehicle, trespass and the two charges of breach of supervision. Guilty pleas were entered to the other charges at an early stage.

[33] Looking at matters in the round I am prepared to allow 15 percent for guilty pleas; it will be applied across the board.

[34] Other mitigating circumstances have been raised on your behalf; first a willingness to pay reparation. Your share of reparation amounts to $2200 and you express a willingness to pay that sum but I note you already owe nearly $12,000 to other victims of your offending and your offer to pay reparation is at the rate to $10 to $20 per week which could be supplemented by your father to $50 per week.

[35] What you have offered would take between 13 and 26 years to pay, given the total amount of reparation you owe. In these circumstances I give you little credit for this factor.

[36] I reduce the sentence by four months having regard to the totality principle,

to an end sentence of 26 months’ imprisonment.

Result

[37] On the charge of threatening to kill you are convicted and sentenced to six months’ imprisonment.

[38] On the charge of trespass you are convicted and sentenced to imprisonment for one month, that is a concurrent sentence.

[39] On each of the charges of breach of supervision you are convicted and

sentenced to two months’ imprisonment; those sentences are concurrent.

[40] On the charge of burglary you are convicted and sentenced to imprisonment for eight months but that is a cumulative sentence.

[41] On the charges of failing to answer to District Court bail you are convicted and sentenced to imprisonment for one month each; those sentences are concurrent.

[42] On the charge of driving whilst forbidden you are convicted and discharged.

[43] On the charge of driving with an excess breath alcohol level you are convicted and sentenced to one month’s imprisonment and disqualified from holding or obtaining a driver’s licence for six months, commencing today.

[44] On the charge of unlawfully taking a motor vehicle you are convicted and sentenced to imprisonment for four months, that is concurrent.

[45] On the charge of male assaults female you are convicted and sentenced to imprisonment for 12 months; that is cumulative.

[46] On each of the charges of driving whilst your licence was suspended, you are convicted and sentenced to imprisonment for one month and disqualified from holding or obtaining a driver’s licence for six months commencing today; those sentences are concurrent.

[47] In respect of the charge of threatening to kill, the victim seeks a protection order. The victim in respect of that charge was in a de facto relationship with your father. Section 4 Domestic Violence Act 1995 defines a domestic relationship for the purposes of the Act in this way:

A person is in a domestic relationship with another person if the person is a family member of the other person.

[48] Thus a domestic relationship exists between you and the victim by reason of the fact that your father was her partner. The second qualifying criteria is that there must have been domestic violence. You have been found guilty of threatening to kill her; that is qualifying domestic violence. Thirdly, that the victim does not oppose or object to the making of a protection order, she does not; in fact she supports the making of an order.

[49] Finally, I need to be satisfied that objectively the order is necessary for her ongoing protection. Although these matters occurred in late 2015, and there appears to have been no further issues between you and the victim, I am satisfied that objectively, the order is necessary.

[50] You breached a trespass notice on 9 December, deliberately went to her place, were abusive and threatened to kill her. I recall the evidence – there was considerable background between you and the victim. I have regard to her victim impact statement in determining that in this case, objectively, the order is necessary for her ongoing protection. I also have regard to your previous history in reaching

that determination. Accordingly, I issue a protection order against you in favour of the victim.

[51] On that charge I make an order for the final name suppression of the victim.

[52] Given your circumstances, you are now in prison for 26 months, your limited means and the amount that you owe other victims, I decline to make a reparation order in this case.

M B T Turner

District Court Judge