Police v Todd [2017] NZDC 9047 (3 May 2017)

Last Updated: 10 October 2017

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

IN THE DISTRICT COURT AT CHRISTCHURCH

CRI-2017-009-000576 [2017] NZDC 9047

NEW ZEALAND POLICE

Prosecutor

v

[DECLAN TODD]

_Defendant

Hearing:	3 May 2017
Appearances:	Sergeant A Williams for the Prosecutor B Ayrey for the Defendant
Judgment:	3 May 2017

_{NOTES OF JUDGE A D GARLAND ON SENTENCING}

[1] [Declan Todd], you appear before the Court today for sentencing on two charges, one of intentional damage and a second of breaching a protection order, to which you have entered pleas of guilty.

[2] The facts relating to your offending are as follows. On [date deleted] May last year a final protection order was issued naming the victim in this matter as the applicant and you as the respondent. At about [time and date deleted] January this year the victim drove in her [car, model deleted] and parked it on [street name deleted], Christchurch from which position she walked to work to commence a [details deleted] shift.

[3] At about 5.30 pm on that same day you turned up on [street name deleted].

_{You drove your motor vehicle past the victim’s [car, model deleted] and you parked}

NEW ZEALAND POLICE v [DECLAN TODD] [2017] NZDC 9047 [3 May 2017]

approximately 20 metres away on the opposite side of the road. You crossed the road and approached her [car, model deleted] on foot. You then crouched down in front of the [car, model deleted] and manoeuvred yourself on the ground under the engine bay. You were under the [car, model deleted] for approximately one minute and 33 seconds. We know that because your behaviour was all captured on CCTV cameras.

[4] Whilst under the vehicle you deliberately damaged cables relating to the proper functioning of the victim’s vehicle. The examination of a qualified mechanic discovered that the main earth strap, the starter solenoid and the anti-lock brake pulse generator wires were found to have been cut.

[5] The victim returned to her vehicle at about [time deleted] that day. She attempted to start her vehicle but was unable to do so because in fact you had cut the cable to the starter solenoid. She was very frightened to learn that you had intentionally damaged her vehicle.

[6] In explanation you told the police that you immobilised the vehicle by cutting the two wires but you denied cutting the starter motor and the ABS brake cables. You further stated that someone else must have cut the ABS brake cable after you had immobilised the vehicle.

[7] The pre-sentence report writer indicates you are aged 55 years. I am told your most recent offending is precipitated by an offending history peppered with serious violent offending and disregard for restrictions. Your stance with the probation officer was that this offending was your way of making a desperate call for help for your mental health issues and a reaction to what you perceived to be a lack of support from agencies.

[8] You claimed that you were safer in prison and that your actions were the only way to get yourself to a place where you knew you would be safe from your overwhelming thoughts of self-harm. You were erratic at interview, I am told, switching between crying and laughing and appeared intent to shift the focus away from your responsibility for this offending. I am told you demonstrated no remorse

or insight at all into your offending and you constantly reverted to blaming all manner of other people and agencies whom you believed had failed you.

[9] The probation officer thought you exaggerated your mental health issues during the interview. You are assessed at being at high risk of future offending and at high risk of causing harm to others. The probation officer says your six convictions for contravening a protection order demonstrates clear disregard for authority and restrictions. It is thought you would be highly unlikely or willing to comply with any community-based sentence imposed on you.

[10] The probation officer comments that before any risk assessment prior to release can be undertaken it would be necessary that you had a sentence of over two years’ imprisonment and that release conditions would be set under the guidance of the Parole Board. I interpret that just as advice of the minimum sentence that is required before those provisions or before those arrangements could take place, not a suggestion that I should impose a term of more than two years’ imprisonment.

[11] I have read the written submissions that have been prepared and filed both on behalf of the police and also by Ms Gray on your behalf. Both sets of submissions are very helpful. Ms Ayrey on your behalf has addressed your case in oral submissions in Court today.

[12] The police submit that a starting point of between two and two and a half years’ imprisonment would be appropriate with an uplift on grounds of your previous offending history. Ms Ayrey submits that a starting point between two and two and a half years’ imprisonment would be appropriate with a small uplift for past history and full credit for your guilty pleas.

[13] Ms Ayrey says today there is no dispute that a term of imprisonment will be the ultimate outcome. She acknowledges that there has been a lengthy pattern of your behaviour towards the victim. She tells me that you still do not see things the way other people do about this offending. You rather focus on yourself and your own needs.

[14] The maximum penalties for your offending are seven years and three years’ imprisonment respectively. There are no tariff cases for your offending. However, in relation to breaching protection orders I note that the maximum period of imprisonment was raised by Parliament from two years’ imprisonment to three years’ imprisonment in 2013. That indicates that Parliament views breaches of protection orders as a serious offence.

[15] In the case of R v Nathan1 the Court of Appeal said:

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.

[16] In R v Cartwright2 the Court of Appeal said the Court has:

A duty to condemn those who persistently ignore orders of the Court. People who have protection orders in their favour are entitled to expect that the Court will uphold the integrity of that protection and respond sternly to those who flout their force and effect... A protection order is to ensure that the recipient is secure and inviolate.

[17] I have considered the cases that have been referred to Court by your counsel, namely Solicitor General v Bickerton3, R v Brown4 and Mitchell v R.

[18] The factors relating to your culpability in my view are as follows. First, your offending was clearly premeditated. You went to this place for the purpose of causing damage to the victim’s vehicle.

[19] Secondly, the damage that you did to her vehicle was serious and was costly to fix. I am told it will cost up to $500. You say or you said to the police that you did not cut the starter solenoid or the antilock brake pulse generator wires, you only cut the main earth strap. Whether that is true or not, the fact that you either cut the earth strap or solenoid wire means that the car was immobilised notwithstanding

_{that you cut the wires to the braking system.}

1 _{R v Nathan CA209/06, 29 November 2006.}

2 _{R v Cartwright CA 175/02, 28 August 2002.}

3 _{Solicitor General v Bickerton HC Auckland A34/01, 10 April 2001.}

4 R v BROWN CA141/88, 1 September 1988.

[20] Were it not for the fact that you cut the earth strap and if I was to take you at your word then that you did not cut the solenoid wire then one might have thought that you intended to cut the brake wires in order to cause injury to the victim. However, that is not the case. As I have said, you did cut both the earth strap and the solenoid wire. I, therefore, infer that by cutting the wires it was your intention to convey a threat to the victim. In other words, a threat that you could do that at any time you chose to. In my view it was your intention to cause the victim to fear for her safety.

[21] Thirdly, the victim was frightened and distressed when she learned of what you had done. That is not surprising. She was fearful of you and what you are capable of doing. She says you have ruined her life. She is now so affected by your behaviour that she is considering moving overseas.

[22] Fourthly, this offending is a combination of a pattern of intimidatory behaviour towards the same victim over a period of more than one year.

[23] I agree with both counsel. Bearing in mind that it was not your intention to cause physical injury to the victim, your offending is less serious than that in Brown. Assessing your culpability overall, I assess the appropriate starting point for your offending at two and a half years’ imprisonment.

[24] I turn to consider the aggravating and mitigating factors personal to you. First of all, dealing with the aggravating factors. Your past history includes six convictions now for breaching protection orders and three for intentional damage and seven for assault.

[25] Your last three convictions for breaching a protection order, a male assaults female, two of the first and one of the matter, relate to this same victim. I see that you received terms of imprisonment for your offending but that does not seem to have deterred you in the least. I uplift the starting point on account of your past history by six months.

[26] In mitigation I accept that you entered your guilty pleas early. However, conviction in this case was inevitable given your behaviour was all captured on CCTV. For that reason in my view your guilty pleas justifies a reduction of eight months.

[27] Mr [Todd], on each charge you are convicted and sentenced to two years and four months’ imprisonment. You are ordered to pay reparation to the victim in the sum of $500. Because your sentence is over two years I am not able to impose release conditions. However, I accept counsel’s point that you clearly are in need of psychological assessment and rehabilitative intervention. However, I leave that to the Parole Board to assess when you are eligible for parole.

A D Garland

District Court Judge