Palmer v Police [2015] NZHC 143 (11 February 2015)

Last Updated: 23 February 2015

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-91 [2015] NZHC 143

BETWEEN	JAMES EVAN PALMER Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	4 February 2015
Counsel:	H S Edward for Appellant N Tahana for Respondent
Judgment:	11 February 2015

JUDGMENT OF KATZ J [Sentence appeal]

This judgment was delivered by me on 11 February 2015 at 2:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Gordon & Pilditch, Crown Solicitor, Rotorua

_{Counsel: H S Edward, Edward Law, Rotorua}

PALMER v NEW ZEALAND POLICE [2015] NZHC 143 [11 February 2015]

Introduction

[1] On 7 November 2014 the appellant, James Palmer, was sentenced to

15 months’ imprisonment for three breaches of a protection order made under the Domestic Violence Act 1995. Mr Palmer now appeals that sentence on the grounds that it was manifestly excessive and wrong in law.

Approach to appeal

[2] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.¹

[3] The Court of Appeal in Tutakangahau v R has recently confirmed that s

250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.² Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.³

[4] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:⁴

(a) There must be an error vitiating the lower Court’s original sentencing

discretion: the appeal must proceed on an “error principle”.

(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

¹ _{Criminal Procedure Act 2011, s 250(3).}

² _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].}

³ _{At [33], [35].}

⁴ R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

[5] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.⁵

Factual background

[6] Mr Palmer and the victim were in a relationship for about five years until late

2008. They have two children together. The relationship appears to have been marred by violence. The victim obtained a temporary protection order against Mr Palmer in late 2008, which he breached in December 2008. He was sentenced to 40 hours community work in respect of that breach.

[7] A final protection order was made against Mr Palmer in March 2009. Mr Palmer has six convictions for breaching that final protection order, as follows:

(a) March 2010 – sentenced to come up for sentence if called upon within one year;

(b) June 2010 – sentenced to four months imprisonment;

(c) February 2011 – sentenced to one year intensive supervision;

(d) April 2013 – to come up for sentence if called upon within one year; (e) March 2014 (two breaches) – sentenced to one year’s supervision on

each charge, special conditions imposed, final warning given.

[8] Despite this history, in early September 2014 Mr Palmer and the complainant apparently decided to spend some time together as a couple “to see how things

_went”.

⁵ Ripia v R [2011] NZCA 101 at [15].

[9] Things did not go well. On Saturday 13 September 2014 Mr Palmer, who was staying at the victim’s home, woke her by pulling her hair. The victim had previously told Mr Palmer she has a very sensitive head and does not like to have her hair pulled. The victim told Mr Palmer to leave her alone so she could sleep. Mr Palmer then forced her head into the mattress, while still holding her hair. This resulted in a charge of physical abuse of a protected person, an offence under s 19(1)(a) of the Domestic Violence Act.

[10] The following day Mr Palmer was “acting paranoid” and pestering the victim about what she had been doing. She asked him to leave her alone. He would not, so the victim left the address. When she returned he continued to interrogate her and verbally abuse her, calling her names like “nigger” and “maggot”. An argument broke out and the victim told Mr Palmer to leave. These events gave rise to a charge of engaging in behaviour amounting to psychological abuse of a protected person, an offence under s 19(1)(d) Domestic Violence Act.

[11] The victim then told Mr Palmer the relationship was over and asked him to leave. He refused to leave and remained at the victim’s house. She was forced to leave the house to avoid him, but returned the following day to repeat her request that Mr Palmer leave. She gave him bus money so he could return to his home town.

[12] Mr Palmer still refused to leave. The victim called the police on Tuesday,

16 September 2014, following a further argument. Mr Palmer left when he heard that the police would be attending the house. Mr Palmer’s refusal to leave the victim’s home gave rise to a charge of remaining in a building occupied by the protected person without their consent, an offence under s 19(2)(d) of the Domestic Violence Act.

The District Court sentencing

[13] In sentencing Mr Palmer in respect of these three offences, Judge D C Ruth noted his long history of breaches of the protection order and violent behaviour towards the same partner. He concluded that an electronically monitored sentence would be inappropriate due to that history.

[14] The Judge adopted a starting point of 14 months’ imprisonment. Taking into account Mr Palmer’s previous record, that starting point was uplifted by six months. A 25 per cent discount for his early guilty pleas was given, bringing the total to 15 months in respect of each charge, to be served concurrently. The Judge also imposed special conditions of release including not associating with the victim and attending domestic violence programmes.

Was a starting point of 14 months’ imprisonment outside of the available range?

[15] Counsel for Mr Palmer submitted that the Judge set the starting point “excessively high” and that “a starting point of less than half that adopted by the Learned District Court Judge” could have been adopted. No authority was relied on in support of this proposition. Indeed the appellant’s submissions did not refer to any case law at all. Rather, a lower starting point was said to be justified on the basis that the offending was not the most serious offending of its type and the victim did not suffer any physical injuries. Any harm that was suffered was emotional or psychological only.

[16] The maximum sentence for breaching a protection order has recently been increased by Parliament to three years. This increase (from a previous two year maximum) was introduced by the Domestic Violence Amendment Act 2013 which was passed on 24 September 2013 and came into force on 25 September 2013 pursuant to s 2(1) of the Domestic Violence Amendment Act 2013. Sentencing decisions that relate to offending that occurred prior to 25 September 2013 must therefore be treated with some caution, as they are likely to have a lower starting point than would now be appropriate for comparable offending. For that reason the three cases I refer to below for “benchmarking” purposes all post date 25 September

2013.

[17] A further matter that is relevant to determining an appropriate starting point for breaching a protection order is whether an offender’s prior convictions for similar breaches in relation to the same victim are relevant. As the Court of Appeal observed in Mitchell v R, a case involving nine previous breaches of a protection order, the modern approach to setting a starting point takes into account aggravating

and mitigating features of the offending but excludes mitigating and aggravating features relating to the offender.⁶ On such an approach, previous convictions will usually be considered only after a starting point has been set, as a personal aggravating factor.⁷ The Court observed in Mitchell, however, that this is not a rule. In that case the Court’s view was that the culpability of the offending may not be able to be fully assessed without taking into account the history of the relationship and the background history of offending by the perpetrator against the victim.⁸ To ignore the history of the relationship would be artificial, and prevent a proper analysis of the gravity of offending.⁹

[18] I propose to follow the Mitchell approach and take the history of the parties’ relationship and the prior breaches of the protection order into account in setting the starting point. I note, however, that not all previous decisions take this approach. In some cases prior breaches of a protection order are considered as part of an offender’s overall criminal history, warranting an uplift only after the starting point has been set. This approach results in a lower starting point, but a higher uplift. This is another reason why previous case law needs to be treated with some caution, to ensure that like is compared with like.

[19] The Crown referred to Beck v Police in support of its submission that the starting point adopted was appropriate.¹⁰ In that case the offender sent 45 text messages to the victim in contravention of a protection order, and on the next day sent further text messages before arriving at the victim’s house and attempting to enter it. The content of these messages included threats to kill the victim. A starting point of 10 months for the first breach was increased by 5 months to reflect the second breach the following day.

[20] The Crown also referred to Mataiti v Police, which involved two breaches of a protection order and a wilful damage conviction.¹¹ The offending related to two

_{separate incidents some five months apart. The first incident involved verbal abuse}

⁶ _{Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498.}

⁷ _{At [12].}

⁸ _{At [12].}

⁹ _{At [17].}

¹⁰ _{Beck v Police [2014] NZHC 931.}

¹¹ Mataiti v Police [2014] NZHC 1675.

and banging on a bathroom door, causing a hole in it. The second incident happened after the victim allowed Mr Mataiti to accompany her to watch their son play rugby. When they returned a heated argument ensued. Mr Mataiti declined to leave, despite having been requested to do so a number of times. Mr Mataiti’s refusal to leave resulted in him pushing the complainant and her returning that gesture.

[21] The District Court Judge imposed starting points of eight months’ imprisonment for each offence, to be served cumulatively. Applying a 25 per cent guilty plea discount, an end sentence of 12 months was reached. On appeal to the High Court Heath J was satisfied that while the sentence “may be seen as stern” there was no basis to interfere with it on the grounds of manifest excess.

[22] In Apineru v Police the breach consisted of the offender appearing at a house uninvited, verbally abusing the victim and grabbing her arm, causing bruising.¹²

There had been three prior breaches of the final protection order. The District Court Judge had imposed a two and a half year (30 month) starting point reflecting the actual violence and repeated offending against the victim. In the High Court, a starting point of two-thirds of the maximum, or 24 months, was considered appropriate. The actual violence was described as moderate.

Analysis

[23] I accept counsel for Mr Palmer’s submission that the offending did not involve a significant degree of physical violence against the victim. I note, however, that none of the cases I have referred to have involved a high degree of physical violence against the victim. The reason for this appears to be that significant physical violence usually results in a separate charge (or charges) being laid, such as male assaults female or injuring with intent to injure. Similarly, physical violence against property often results in a separate property related charge (such as wilful damage) being laid. Accordingly, a high level of physical violence is not necessarily

_{required for a breach of protection order charge considered serious.}

¹² Apineru v Police [2014] NZHC 1969.

[24] Parliament has recognised that victims of domestic violence are a particularly vulnerable group in society, as reflected in their significant over-representation in homicide statistics. The community as a whole has a strong interest in protecting such persons. The making of a protection order is the primary mechanism through which that protection can be achieved. Protection orders are worthless, however, if they are routinely disregarded. Any breaches of a protection order are potentially serious and undermine the legislative purpose of the Domestic Violence Act. That said, some breaches will, of course, be more serious than others.

[25] In this case Mr Palmer’s offending is aggravated by a long-term pattern of offending against the same victim. Many of Mr Palmer’s breaches of the protection order have attracted a fairly lenient response from the Courts. Although one previous breach resulted in a short term of imprisonment, the general sentencing focus appears to have been on rehabilitation. Attempts have been made to incentivise Mr Palmer to change his behaviour through suspended sentences (essentially a good behaviour bond for a year) and he has also received sentences of supervision, including one of intensive supervision. As part of this process, Mr Palmer has attended a number of courses aimed at addressing his behavioural and anger management issues. None of this appears to have assisted him. On his last appearance, for two breaches of the protection order, Mr Palmer was given a final warning.

[26] Although every case is unique, Mr Palmer’s offending appears to have some similarities to that in Mataiti. It is hard to make a direct comparison, however, as the offences in that case were five months apart and therefore cumulative sentencing was appropriate. On the other hand, Mr Palmer’s offending appears to be less serious than that in Apineru. While it should not be trivialised, the hair pulling in this case was a lower level assault than that in Apineru. Further, the offender in Apineru forced his victim to leave her family home and took her elsewhere, which indicates a level of controlling behaviour not seen in this case, despite the verbal abuse.

[27] I also note that in this case Mr Palmer was initially at the premises with the “permission” of the victim (as in Mataiti). This is sometimes treated as a mitigating feature of such offending. I accept that an offender “stalking” a victim or turning up

at their home uninvited is likely to cause significantly more trauma than if they are initially there by consent. Accordingly the “permission” of the victim is a relevant factor to overall culpability. There is possibly a tendency in some cases, however, to give this factor too much weight. Judge McDonald, who was the first instance Judge in Mataiti, recognised this difficulty when he said in that case that:¹³

[9] I have a letter from the victim who has now moved to [another town] to be closer to her whanau. She wants you back...Sitting as I often do in the Family Violence Court this is yet another treadmill one can see. The person thinks that she is so much in danger from her partner that she needs a protection order and goes and gets one. Then when the man walks through the protection order time and again she phones the police, he is arrested, there is an enforced separation and she wants the man back, for a whole variety of reasons. The Courts take that into account, impose a lenient sentence, the person goes back and all of a sudden problems, and the cycle starts again. This is not a prosecution on behalf of the victim. This is a prosecution on behalf of the community. While her views are always taken into account be sentencing Judges they are not paramount. It is not her wishes, what she thinks.

[28] I think those comments are apt in this case. It is no defence to a breach of a protection order that an offender was with the victim “by consent” at the time. While that factor may have some relevance in a sentencing context, undue weight should not be given to it. By increasing the maximum penalty for the offence by 50 per cent Parliament has sent a fairly strong message that breaches of protection orders are serious and that the seriousness of such behaviour should not be minimised. There are broader community interests at stake. This is not private litigation between the offender and the victim. Court orders must be observed, regardless of the changing attitudes of the victim. Ultimately, if there is no longer any need for the order, it is open to the victim to seek to have it discharged. Unless and until that occurs protection orders must be complied with.

[29] Given the actual violence (albeit at the lower end of the scale) involved in the first breach and Mr Palmer’s appalling history of breaching the protection order, a starting point of ten months would be within range for the first breach. An uplift of four months to reflect the subsequent two breaches would also not be out of line. This would result in a global starting point of 14 months for the three offences.

_{Accordingly, whatever precise methodology Judge Ruth adopted, the starting point}

¹³ Police v Mataiti DC Whangarei CRI-2013-088-2825, 2 May 2014 at [9].

of 14 months adopted by him was not, in my view, manifestly excessive. It was arguably at the upper end of the appropriate range, but was not outside of range. I note that it was less than half of the statutory maximum penalty.

[30] Mr Palmer has been dealt with fairly leniently by the Court in respect of his numerous previous breaches. All attempts at rehabilitative sentencing appear to have failed to change his behaviour, culminating in a final warning (for two breaches) in March 2014. Six months later he committed a further three breaches of the protection order. A starting point of fourteen months imprisonment was not manifestly excessive, against this background.

Adjusting the starting point – aggravating factors

[31] I have taken into account Mr Palmer’s prior convictions for breaches of the protection order in setting the starting point. Accordingly any uplift for prior convictions must only take into account other relevant offending, in accordance with the approach outlined by the Court of Appeal in Mitchell.

[32] Mr Palmer has an extensive criminal record, excluding his convictions for breaching the protection order. This includes 13 convictions for violent offending, including male assaults female and assaulting a child.

[33] The Judge applied an uplift of six months “for your previous record”. As Mr Palmer’s previous convictions for breaches of the protection order were likely taken into account in setting the starting point, they should have been disregarded when considering the appropriate uplift, to avoid double-counting. Given that the issue is not specifically addressed in the Judge’s sentencing notes, there is a risk that he may have inadvertently double counted this factor.

[34] In my view, if the previous breaches of the protection order are disregarded when considering the appropriate uplift for Mr Palmer’s previous record, the appropriate uplift is three months rather than six months. This would take Mr Palmer’s sentence to 17 months’ imprisonment.

Adjusting the starting point – mitigating factors

[35] Counsel for Mr Palmer submitted that the Judge failed to have appropriate regard to mitigating factors, namely:

(a) Mr Palmer’s statement, as reported in the pre-sentence report, that he wished to change his behaviour;

(b) Mr Palmer’s completion of residential and community based domestic violence courses in the past; and

(c) Mr Palmer’s serious drug problem, which was being addressed at the time of his offending through his participation in a methadone programme.

[36] I am not persuaded that any of these factors justified a reduction in sentence. The Judge accordingly did not err in failing to reduce the sentence to account for mitigating factors.

Guilty plea discount

[37] The discount given for Mr Palmer’s guilty plea was 5 months, or the equivalent of 25 per cent of the total sentence. This reflects the upper limit of the Supreme Court’s guidance in Hessell v R.¹⁴

[38] Applying a 25 per cent discount to the sentence I have reached (17 months imprisonment) would result in an end sentence of 13 months’ imprisonment. This is two months less than the end sentence imposed by the

_{District Court Judge. As the difference is significant the appeal should be allowed.}

¹⁴ Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

Result

[39] The appeal is allowed.

[40] The sentence of 15 months’ imprisonment is quashed and a sentence of

13 months’ imprisonment substituted on each charge, to be served concurrently.

[41] All other aspects of the sentence imposed in the District Court, including the special conditions of release, are to remain unchanged.

Katz J