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Apineru v Police [2014] NZHC 1969 (20 August 2014)

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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