Lowe v Police [2016] NZHC 119 (9 February 2016)

Last Updated: 22 February 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-0389 [2016] NZHC 119

BETWEEN	MATTHEW LOWE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	4 February 2016
Appearances:	A P Comeskey for Appellant N W Dobbs for Respondent
Judgment:	9 February 2016

_{JUDGMENT OF M PETERS J}

This judgment was delivered by Justice M Peters on 9 February 2016 at 5 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors: Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau

_{Counsel: N W Dobbs, Auckland}

LOWE v POLICE [2016] NZHC 119 [9 February 2016]

[1] The Appellant appeals against sentence imposed by Judge J Lovell-Smith in the District Court at Manukau on 3 November 2015.¹ The Appellant was for sentence on one charge of contravening a protection order and one of wilful damage, to both of which he had pleaded guilty.²

[2] The Judge sentenced the Appellant to 6 months’ community detention and

18 months’ intensive supervision.

[3] To succeed on appeal, the Appellant must satisfy me that the sentence imposed was manifestly excessive.³ Counsel for the Appellant submits that the sentence was manifestly excessive because:

(a) the starting point of imprisonment that the Judge adopted was excessive;

(b) the Judge failed to take into account that the majority of the Appellant’s prior convictions were not for domestic violence and that this was his first contravention of a protection order; and

(c) the Judge gave insufficient credit for the Appellant’s guilty pleas.

[4] Counsel submits that an appropriate sentence would be 3, rather than 6,

months’ community detention and 12 months’ supervision, as opposed to the

18 months’ intensive supervision that the Judge ordered.

[5] The Crown opposes the appeal on the grounds that the end sentence was within the range open to the Judge and that she appears to have given an appropriate discount for the Appellant’s guilty pleas.

Facts

_{[6] Both charges against the Appellant arose from an incident on 6 August 2015.}

¹ _{Police v Lowe [2015] NZDC 25851.}

² Domestic Violence Act 1995, ss 49(1)(a) and 49(3): maximum penalty is three years’ imprisonment; and Summary Offences Act 1981, s 11(1)(a): maximum penalty is three months’ imprisonment and/or a fine of $2,000.

³ Criminal Procedure Act 2011, s 250(2).

[7] The summary of facts records that at about 11 am that day the Appellant was at home and that an argument ensued between him and his partner (“protected person”), the Appellant being subject to a protection order. The Appellant became angry and smashed a jar. The protected person asked the Appellant to leave.

[8] The Appellant packed his belongings into his car and said he would leave if he were given some money for petrol. The summary records that the protected person became frightened, left the address to get money and that the argument continued on her return. The Appellant then threw two plates through the kitchen windows, smashing the windows and the plates. The Appellant had met the costs of repair prior to sentencing.

[9] The Appellant was charged with the offences to which I have referred. The particulars given as to the contravention of the protection order were that, without reasonable excuse, the Appellant had engaged in behaviour amounting to psychological abuse of the protected person.⁴

District Court sentencing

[10] At the time of the offending, the Appellant was subject to a sentence of supervision that had been imposed on 18 May 2015. That sentence was for male assaults female and wilful damage, both of which involved the same protected person, and lower level methamphetamine related offending. Each of these offences was committed in October 2014.

[11] The Judge referred to the PAC report prepared for sentencing, the Appellant’s prior offending, the opportunities he had been given to avoid imprisonment, the purposes and principles of sentencing in the Sentencing Act 2002, the submissions made by counsel and the continuing support the Appellant had from his parents.

[12] The Judge said that, although she had “thought long and hard about imprisonment”, she was persuaded to impose the form of sentence recommended in

_{the PAC report, being community detention and intensive supervision. This was}

⁴ Domestic Violence Act 1995, s 19(1)(d).

because there had been no physical assault, the Appellant was in gainful employment, enjoyed family support and because of his age.

The appeal

[13] The Appellant has a right of appeal against sentence pursuant to s 244

Criminal Procedure Act 2011. The appeal is governed by s 250, which provides:

250 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

[14] In Tutakangahau v R the Court of Appeal confirmed that s 250 was not intended to change the previous approach taken under the Summary Proceedings Act

1957.⁵ An appeal against sentence is an appeal against discretion and proceeds on an

“error principle”. The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.⁶ Whether a sentence is manifestly excessive is to be determined having regard to the sentence imposed, rather than the process by which it has been reached.⁷

Discussion

[15] First, counsel submits that to adopt a starting point of imprisonment on a first breach of a protection order and wilful damage, where no actual violence against the protected person was committed, was manifestly excessive. With respect, this point

_{is something of an irrelevance for the reasons mentioned in the previous paragraph.}

⁵ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].}

⁶ _{R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].}

⁷ Ripia v R [2011] NZCA 101 at [15].

[16] But regardless, the Appellant’s criminal history made it an option available to the Court.

[17] Although this is the Appellant’s first conviction for contravention of a protection order, he has prior convictions for violence: common assault x 2, intentional damage x 2 and wounding x 1, all in 2004; possessing an offensive weapon x 1 in 2010; and wilful damage and male assaults female charges in 2014. The Appellant was sentenced to two years’ imprisonment on the wounding charge, with leave to apply for home detention. Since then he has received sentences of supervision and community work, the latter breached from time to time. In addition, the Appellant has convictions for drug related offending, aside from those to which I have already referred.

[18] Also, the conduct for which the Appellant was before the Court was serious. He had been asked to leave the address, said he would and then did not. He had smashed a jar, and his actions in throwing the plates through the windows would have intimidated the protected person and been intended to do so.

[19] As to the second ground of appeal, it will be apparent from my comments that the Appellant cannot be treated as a first offender.

[20] There is more force in the third submission, being the lack of any expressed discount for the guilty pleas and remorse, the latter said to have been evidenced by the payment of reparation in full and without any court intervention being required.

[21] Crown counsel submitted that acknowledgment of the guilty pleas is implicit in the Judge’s adoption of community detention as opposed to imprisonment. I do not accept that submission. The Judge said why she had not imposed a term of imprisonment and her reasons did not include the guilty pleas. Given that, I must proceed on the basis that no reduction, not even a modest one, was made.

[22] In my view, the Judge erred in failing to make a reduction for the guilty pleas. I would allow a reduction of 15 percent, given the inevitability of conviction. I

decline to impose a sentence of supervision as the Appellant has been subject to such sentences before and plainly they have not been sufficient to stop him offending.

[23] Crown counsel submitted that, if I were to reduce the sentence, I should not alter the duration of the period of intensive supervision given its rehabilitative purpose. I do propose to make a reduction, as I do not consider that the purpose of that sentence in this particulars case was solely rehabilitative.

[24] For the reasons given I vary the sentence on both charges so as to reduce the period of community detention to 5 months and the period of intensive supervision to 15 months.

..................................................................

M Peters J