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High Court of New Zealand Decisions |
Last Updated: 25 November 2014
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-485-55 [2014] NZHC 1969
ALEX APINERU
v
NEW ZEALAND POLICE
Hearing:
|
19 August 2014
|
Counsel:
|
S A Thistoll for Appellant
M J Ferrier for Crown
|
Judgment:
|
20 August 2014
|
JUDGMENT OF WILLIAMS J
[1] The appellant pleaded guilty to one count of breaching a protection order and one count of common assault. He was sentenced in the District Court on 11 June
2014 to two years’ imprisonment for breaching the protection order, and
six months’
imprisonment to be served concurrently on the common assault
charge.
[2] Mr Apineru now appeals against the sentence for breach of protection order on the basis that the learned Judge made material errors in his sentencing
methodology causing him to impose a sentence that was manifestly
excessive.
APINERU v NEW ZEALAND POLICE [2014] NZHC 1969 [20 August 2014]
The facts
[3] The victim is S. She is still legally married to the appellant but they have been separated for some time. She was granted a protection order against him in
2008, but I do not know whether that reflects the date of the
separation.
[4] At around midday on 28 February 2014, S was at a
relative’s home socialising with family. The appellant
arrived
uninvited. He abused S verbally, stood over her and told her she needed to
leave with him. S left accordingly. Mr Apineru
grabbed her by the arm while
they were outside the property bruising it. He then took her to an empty State
house nearby. The facts
do not disclose what happened there but the pair then
left and spent the night at Mr Apineru’s house.
[5] A temporary protection order was made against the appellant on 7 May 2008 and the temporary order was made final on 4 August 2008. Mr Apineru has been found guilty of breaching that order three times prior to the current incident – on
29 June 2008, 8 July 2012, and 6 March 2013.
[6] It is this extensive and long term history of breaches that
undoubtedly caused the learned Judge to adopt a stern approach.
The decision
[7] The learned District Court Judge adopted a “near
maximum” starting point of two and a half years’ imprisonment
on the
breach of protection order – the offence he considered to be the dominant
one. This was, he said, “to take account
of the repeated breaching of
protection orders and actual violence” suffered by S.
[8] He then discounted that 30 month term by 20 per cent – six months – to reflect Mr Apineru’s guilty pleas. It was open to him to adopt the 25 per cent maximum available as a result of Hessell v R, but the Judge considered that the pleas
were not at the earliest opportunity, there having been negotiation over
charges.1
1 Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607.
[9] In the end, as I have said, the learned Judge set his final
sentence in respect of
the breach of protection order at two years’
imprisonment.
Appeal jurisdiction
[10] Section 250 of the Criminal Procedure Act 2011 governs appeals against sentence from the District Court. That provision simply requires the appeal court to be satisfied that there has been an error in the sentence and that a different sentence should be imposed.2 It is well settled that this provision did not change the pre- existing approach to appeal correction in sentencing.3 I may not substitute my own opinion for that of the sentencing Judge. Rather, I must be satisfied that there has
been an error sufficiently material to require the sentence to be adjusted.
The focus remains on the final result and not necessarily
the methodology of the
sentencing Judge, although a flaw in methodology will often be the cause of an
error creating an excessive
final sentence.
Arguments
[11] Mr Apineru’s arguments were two-fold. The first was that the
learned Judge failed to adopt the correct R v Taueki approach to
sentencing requiring the assessment of a starting point by reference to the
offending, then an adjustment by reference
to the offender and then an
appropriate discount for guilty plea.4
[12] Mr Apineru submitted, through counsel, that like cases suggest a
starting point should have been around 15 months, with a
three month uplift for
previous offending, followed by a full 25 per cent discount for guilty plea
bringing the end sentence to between
13 and 14 months’
imprisonment.
[13] The response on behalf of the police was that the learned Judge might more appropriately have identified a discrete starting point and a separate uplift for prior offending, but the final result – the Judge’s “starting point” of 30 months – was not out of range. There were a number of aggravating features of the particular
offending: unlawful entry, premeditation, intimidation, actual violence
and harm to
2 Section 250(2)(a).
3 Tutakangahau v R [2014] NZCA 279.
4 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).
the victim. All of that had to be combined with the fact that Mr Apineru had
already breached the extant protection order four times,
and at the time of the
offending, was serving a sentence for breaching the same order and breached it
once more after these events.
This was, in addition, the appellant’s
fourth conviction for assaulting S.
[14] Finally, the police argued that a 20 per cent discount for guilty
plea, while not the maximum discount allowable, was nonetheless
within the
permissible range in the circumstances of this case. Counsel submitted that a
25 per cent discount is not automatic for
an early guilty plea in any event. It
is a matter of discretion.
“Starting point”
[15] There is no doubt that the learned Judge adopted a short cut rather than apply the orthodox Taueki approach to sentencing. But, as both counsel acknowledged, it is the end result that counts. There is no tariff case for breaches of protection orders
– the range of circumstances of such breaches being too broad for that
approach to sentencing.
[16] In addition, cases arising from facts prior to 13 December 2013 will
be of limited assistance because the maximum sentence
for breach of protection
order was increased by 50 per cent to three years’ imprisonment in that
year.5
[17] Two 2014 cases provide some guidance. In Narayan v Police,
the appellant appealed against concurrent sentences of 11 months’
imprisonment on two charges of breaching a protection order.6 The
appellant in that case breached a protection order in favour of his wife. There
were two breaches within a 24 hour period about
four months after the order was
granted. There had already been a breach about a month earlier.
[18] The appellant argued that a starting point of 15 months’ imprisonment was too high. Mallon J dismissed the appeal. Her Honour accepted that the starting point was stern in comparison to other cases but was within the available range and
justified by the appellant’s use of a machete, his arrival at the
wife’s house in the
early hours of the morning, and the distress caused to her and the
children.
[19] By comparison, Mr Apineru’s disregard of Court orders has been
consistent for a much longer period and breaches have
been combined with actual
violence. There was no actual violence in the Narayan case – the
machete was to underscore Mr Narayan’s threat to kill himself. It was
neither used nor threatened to be used
against the victim.
[20] There is no question that the present case is worse than
Narayan.
[21] Beck v Police is another 2014 case.7
The appellant appealed against a sentence of 15 months’
imprisonment following pleas of guilty to two counts of breaching
a protection
order in respect of his ex-partner, and one count of breaching release
conditions. The appellant harassed the victim
via text messages in relation to
the first count. And the next day, in relation to the second count, the
appellant sent more texts
before arriving at her address and attempting to enter
the property. Even after the victim had contacted police, the appellant
continued
to text her and return to her address.
[22] On appeal, Mander J upheld a starting point of 10 months’
imprisonment and an uplift of five months in recognition
of the second breach
the following day, together with a further uplift of five months for previous
relevant convictions including
domestic violence, intimidation and breaches
of protection orders all against the same victim. There was then a 25 per
cent
discount for a guilty plea.
[23] Mander J dismissed the appellant’s submission that the Judge
had double counted by taking previous convictions into
account in reaching his
starting point and then imposing a five month uplift. Mander J
said:8
There is some weight to Mr Owen’s submission and care is required to ensure that when assessing the gravity of the offending for the purpose of determining a starting point that task is not conflated with the separate further step involving potential aggravating factors personal to the defendant
relating to an offender’s prior history. It is however inevitable in
assessing the seriousness of an offence such as the breach
of protection orders
that the offender’s prior compliance with the order will strongly
influence the view taken by a sentencing
Court of the seriousness of the
offender’s conduct. The difficulty for the appellant is that his criminal
history which I have
detailed in this judgment and was referred to
in some detail in Judge Turner’s sentencing remarks goes
beyond the
repeated breaching of the protection order. The appellant since 2006 has
regularly committed offences of domestic violence
involving assault and
intimidation, including offending against the present victim. Moderate
increases in the terms of imprisonment
imposed have not deterred the
appellant.
[24] Once again the facts in the case before me are significantly more
serious than those in Beck. Here there is actual violence (although it
is moderate) and elements of detention and physical intimidation in the current
offending
and in Mr Apineru’s past offending.
[25] There is one pre-December 2013 case that warrants further
consideration. That is the Court of Appeal decision in Mitchell v
R.9 This case involved the former partner of the (male) victim.
The appellant Mitchell had breached protection orders on nine previous
occasions, and on the occasion in question, she smashed the windows of the
victim’s house with a tyre iron, and two lights
before entering the house,
yelling abuse at the victim and four other occupants in the house, and then
taking off.
[26] According to the report, there had been previous sentences of
imprisonment, though none for more than three months. The
appellant had been
warned on the most recent occasion of breach prior to the offending, that a
further breach would result in prison.
It appears this was no
deterrent.
[27] In the context of a maximum available penalty of two years’ imprisonment, the sentencing Judge adopted a starting point of 18 months for the breach of protection order. On a totality basis (including the intentional damage count), the starting point was two and a half years’ imprisonment. A further uplift of two months was imposed for breach of bail and for previous convictions for breach of
protection order.
9 Mitchell v R [2013] NZCA 583.
[28] Asher J writing for the Court considered that the final sentence
should be upheld. Relevant culpability factors were as
follows:10
(a) The actions were premeditated. Ms Mitchell had armed herself with a tyre
iron, and made lead-up threatening phone calls.
(b) There was extreme and costly damage to the domestic property. (c) The victims were gravely affected, as she intended.
(d) This offending is the latest culmination of a seven-year campaign of
intimidation and breaches of court orders.
[29] The Court of Appeal separated the factors in relation to breach of protection order from those in relation to the intentional damage count. The damage wrought by the appellant was not a factor in the starting point for breach of protection order. Rather, the Court considered that 18 months was justifiable on the breach of
protection order.11
... because this was a wilful and terrorising breach of the protection order,
made the more serious because it was the latest in a
continuing pattern, and
committed the face of a stern judicial warning by Judge Mill that Ms
Mitchell’s offending
against the victims had reached a serious
head.
[30] This approach, with respect, provides a useful benchmark. That
starting point was three-quarters of the then maximum.
[31] In Mitchell, the learned District Court Judge noted that
“it would be hard to think of a breach that was more serious than
this”.12
[32] That justified a starting point of 75 per cent of the maximum. In
this case, the starting point was nearly 85 per cent of
the maximum. On any
analysis, this case cannot be considered materially worse than Mitchell,
and in my view, when objectively considered, the facts here are somewhat less
serious than Mitchell.
[33] As I have said, Mitchell involved nine previous breaches and
a stern judicial warning. There was, I accept, no physical harm to the victims
but of course
property
10 At [10].
11 At [14].
12 At [13].
damage was extensive. In my view, a starting point of two-thirds of the
maximum or
24 months was the appropriate level in this case.
Guilty plea
[34] A 20 per cent or six months discount was given on the guilty plea. The
appellant argues for a 25 per cent discount.
[35] I set aside the obvious point that, increasing the discount by five
per cent would produce a further reduction of no more
than one to two months
imprisonment which, seen in context, could easily be described as no more than
tinkering. The discount for
guilty plea is a matter of discretion. The
strength of the prosecution case will be relevant as well as the point at which
the
plea is entered. The 20 per cent discount was well within the Judge’s
discretion. On the basis of the starting point of
24 months, a discount of
five months is appropriate.
Conclusion
[36] The appeal is allowed accordingly. The sentence of two years’
imprisonment
is quashed and a sentence of 19 months’ imprisonment
substituted.
Williams J
Solicitors:
Public Defence Service, Wellington
Crown Solicitor, Wellington
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