Mam v Department of Corrections HC Christchurch CRI 2011-409-000111 [2011] NZHC 1946 (1 December 2011)

Last Updated: 5 February 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CRI 2011-409-000111}

JARMAINE MAM

Appellant

v

DEPARTMENT OF CORRECTIONS

Respondent

Hearing: 1 December 2011 (Heard at Ashburton)

Counsel: G Tyrrell for Appellant

C E Butchard for Respondent

Judgment: 1 December 2011

_{JUDGMENT OF FOGARTY J}

[1] This is an appeal against a sentence of the District Court of 12 months’

imprisonment to be served cumulatively.

[2] The appellant had pleaded guilty to breach of a protection order and two charges of breach of release conditions. The breach of the protection order charge was that without reasonable excuse he telephoned the protected person. That seems to suggest that it was one communication. The police summary of facts says that on Thursday, 3 February, at 2.39 pm he sent a text message to the victim stating he knew where she lived. Shortly after this message the appellant sent further threatening messages including comments:

_{Wait til I c uz and u wil c im not jokn anymre.}

MAM V DEPARTMENT OF CORRECTIONS HC CHCH CRI 2011-409-000111 1 December 2011

He further stated:

Yeah I sent the text messages to her but she this all the time. Its bullshit. One minute I can see my son the next thing she is doing this shit. You guys have even told me before that she abuses her protection order and should be removed.

[3] The victim is a former partner of the appellant. The two of them have a child, the son referred to in the summary of facts. At the hearing before the District Court, Mr Tyrrell, on instructions, advised the Judge that the context of the message was that there was a pending Family Court hearing to deal with the question of access to his son. His submission was the phrase “wait till I see yous” was not a threat to come around but rather a threat to have this matter out in Court. That is what Courts are for. The prosecuting police officer did not challenge this contextual submission and there is some support for it in the summary of facts, as I have just indicated.

[4] Breaches of protection orders have a maximum penalty of two years. They vary enormously in culpability and in degrees of threat, psychological or physical, to the protected persons. On its own this would appear to be a relatively minor breach. The other two charges are for release conditions. They are both failures to report to the probation officer. He advised the probation officer that he could not provide an excuse as he did not follow his written directions other than to say “I don’t like walking”.

[5] The charge of breach of conditions of release can also vary enormously in culpability depending on the context and of themselves these two charges would not normally attract, viewed in isolation, heavy penalties.

[6] The reason for the sentence imposed, which was discounted from the Judge’s sentence overall of about 15 months’ imprisonment, is this man’s prior history of breaching Court orders. The Judge summed it up this way:

Looking at your record I would have to say that it is a litany of breaches of just about every Court order that could be made. Breaches of release conditions, the last one was last year, breaches of bail, the last one was in

2009, breaches of protection order, the last one was in 2009 and this record goes back some considerable time to 2004.

[7] This man’s criminal history underlying the breach of release conditions and offences, such as failure to answer District Court bail and contravening protection orders, is minor. It includes matters such as driving while disqualified, resisting the police, unlawfully getting into a motor vehicle, common assault, driving with excess blood alcohol, theft of property under $500, and being an unlicensed driver, and other traffic offences. There are other minor offences, including shoplifting. There is one more significant offence of aggravated assault.

[8] The offender is 26 years of age. The Judge was of the view that these two breaches of release conditions and the breach of the protection order had to be viewed in this context.

[9] I agree that in the context of flouting numerous orders the Court was entitled to view these current breaches severely and for that reason to uplift the sentences that would otherwise reflect the culpability of the breaches seen in isolation. Seen in context they were not just simply breaches of a protection order and breaches of release conditions but were continual flouting of orders imposed by Courts. That said, I have come to the view that the uplift cannot be justified out to a 15 months’ imprisonment but for the pleas of guilty.

[10] Counsel before me did provide me with a number of authorities. The authority with the longest sentence on breach of release conditions that Ms Butchard was able to find was three months concurrent on a term of imprisonment. There was one of two months in a case of Barnes v Police HC Nelson CRI 2009-442-17

6 October 2009, Wild J, where the facts seemed to be more serious than here. On breach of protection order there are, of course, often significant sentences. As I have said, it is contextual. If this had been a threat to come around, to trespass and potentially intimidate and possibly threaten physical violence, it would, of course, attract a very significant penalty. It does appear, and it was a submission from Mr Tyrrell partly supported by the police own summary of facts, that the taking advantage of the protection order by the woman is to some extent off and on depending on issues such as the current one of access to the son. Mr Tyrrell also applied the totality principle.

[11] I think in all the circumstances the sentence should be significantly reduced. I have no issue with there being only a small discount for the guilty plea in the circumstances, there being no real ability to dispute these charges. I am inclined to the view that the sentence, before taking into account the pleas of guilty, on a totality basis, should be ten months’ imprisonment allowing two months for the pleas of guilty, reducing the sentence to eight months, which I would allocate as to two months on each of the breaches of release conditions, and four months on breach of the protection order, all to be cumulative.

Solicitors:

G Tyrrell, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent