Waterman v Police [2016] NZHC 247 (23 February 2016)

Last Updated: 21 March 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-0418 [2016] NZHC 247

BETWEEN	JUSTIN DAVID WATERMAN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 February 2016
Appearances:	C D Wheatley for Appellant L E Nunweek for Respondent
Judgment:	23 February 2016

_{JUDGMENT OF M PETERS J}

This judgment was delivered by Justice M Peters on 23 February 2016 at pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

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

Solicitors: Public Defence Service, Manukau

Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau

WATERMAN v POLICE [2016] NZHC 247 [23 February 2016]

[1] The Appellant appeals against sentence imposed by Judge G T Winter in the

District Court at Manukau on 1 December 2015.¹

[2] The Appellant was for sentence on the following charges, to which he had pleaded guilty:

(a) four breaches of a protection order.² These breaches occurred in

February, April, July and September 2015; (b) breach of release conditions;³

(c) one charge of possessing utensils;⁴

(d) one of possessing methamphetamine;⁵ and

(e) one of possessing a knife in a public place.⁶

[3] The Judge sentenced the Appellant to 30 months’ imprisonment, arrived at as follows:

(a) starting point of two years’ imprisonment on the breach of the

protection order in September 2015;

(b) three months for the breach in July, two for the breach in April and one for the breach in February 2015;

(c) two months for the breach of release conditions;

(d) two months for the offending relating to the utensils, methamphetamine and knife;

¹ _{Police v Waterman [2015] NZDC 23807. See also Criminal Procedure Act 2011, s 244.}

² _{Domestic Violence Act 1995, ss 19 and 49; maximum penalty three years’ imprisonment.}

³ _{Sentencing Act 2002, s 96(1); maximum penalty one year imprisonment or a fine of $2,000.}

⁴ Misuse of Drugs Act 1975, s 13(1)(a); maximum penalty one year imprisonment or a fine of

_$500.

⁵ _{Misuse of Drugs Act, s 7(1)(a); maximum penalty six months’ imprisonment or a fine of $1,000.}

⁶ Summary Offences Act 1981, s 13A; maximum penalty three months’ imprisonment or a fine of

$2,000.

(e) a 15 per cent deduction for the Appellant’s guilty pleas.

[4] It is common ground that the Judge made some mathematical errors in arriving at the end sentence of 30 months and that, at the very least, these errors must be corrected. However, there is also no real dispute that the sentence was manifestly excessive regardless of those errors, and that it is necessary to “re-sentence” the Appellant accordingly.

[5] As to that re-sentencing, counsel for the Appellant submits that the Judge ought to have adopted a starting point of 16 months’ imprisonment for all breaches of the protection order, and that the Appellant was entitled to a discount of 25 per cent for his guilty pleas. Counsel does not object to the uplifts the Judge imposed for the other offending nor to an uplift of, say, four months for prior offending.

[6] The only aspect of that submission that Crown counsel disputes is the starting point on the breach of protection order offending. Crown counsel submits that a starting point for that offending of 16 to 20 months would be within range.

Facts

[7] On 8 August 2006, a final protection order was issued against the Appellant. In summary, the order required the Appellant to stay away from his former partner, her place of residence (“address”) and, as I understand it, from their child who was in the mother’s day to day care.

[8] In February 2015, the ex-partner discovered the Appellant at the address. The Appellant was asked to leave several times but refused. Although the Police were called the Appellant left before they arrived.

[9] At 6.30 am on 13 April 2015, the partner’s brother went to investigate a noise at the address and found the Appellant outside the ex-partner’s bedroom window where she was asleep. The brother retreated inside whilst the Appellant began telephoning the house and calling through the rear door. The Appellant subsequently left the address.

[10] On 10 July 2015, the Appellant again went to the address whilst his ex-partner and child were at home. The Appellant started yelling the child’s name. Again, the Appellant declined to leave, the Police had to be called and they found the Appellant a short distance away.

[11] The Appellant was subject to prison release conditions at the time of this offending. Charges for the three breaches were laid, as was one for the breach of conditions and the Appellant pleaded guilty following a sentence indication. The terms of the indication are irrelevant for present purposes.

[12] On 9 September 2015, the ex-partner was in Pakuranga. The Appellant parked directly in front of her vehicle, walked towards her, she locked the doors, he put his arm in through the (open I assume) window, unlocked the driver’s door, yelled an obscenity, and took her cellphone from her handbag.

[13] At about 10 pm that evening, the Appellant was at the top of the driveway at the address when the ex-partner returned home. The Appellant walked up to her vehicle, pulled the keys out of the ignition, returned the cellphone and left the address. The Appellant was on bail at the time of this offending.

[14] The Appellant was arrested in September 2015. On searching the Appellant, the Police found a utensil, being a glass pipe used for smoking methamphetamine; a pocket knife with a blade approximately 10 cm long; and approximately 0.97 grams of methamphetamine.

Discussion

[15] There is no tariff case for breach of a protection order.⁷ In R v Cartwright, the Court of Appeal stated that “the Court will uphold the integrity of [protection orders] and respond sternly to those who flout their force and effect”.⁸ The Court

_{expressed similar views in R v Nathan.}⁹

⁷ _{Apineru v Police [2014] NZHC 1969 at [15].}

⁸ _{R v Cartwright v R CA 175/02, 27 August 2002 at [20].}

⁹ R v Nathan CA209/06, 29 November 2006.

[16] In support of her submission as to a 16 month starting point for the breaches of protection order, counsel for the Appellant referred me to Wylie J’s recent decision in Woods v Police in which the Judge allowed an appeal against sentence.¹⁰ The appellant in that case was for sentence on ten charges of breaching a protection order and three of wilful trespass. The breaches involved sending emails, unsolicited gifts, text messages and telephone calls, approaching the protected person while she was shopping, and prevailing upon an associate to approach her. There was no physical contact or violence but the communications included references to death and suicide.

[17] Wylie J accepted that the end sentence of two years, three months’ imprisonment was manifestly excessive and adopted a starting point of 18 months’ imprisonment for the breaches of protection order, uplifted by one month for the trespass offending. The District Court Judge had adopted a starting point for all offending of two years, six months which reflected a six month reduction for totality.

[18] Counsel for the Appellant submits that the offending in this case is marginally less serious than in Woods as it comprised four breaches and took place over a period of seven months (as opposed to 10 breaches over 10 months in Woods). Further, counsel submits that the offending in this case involved less psychological manipulation, in that it was directly confrontational, and there were no direct threats of violence or physical harm.

[19] Counsel for the Respondent referred me to several authorities in support of a higher starting point than the 16 months proposed by the Appellant, say up to

20 months. These were Coory v Police, Beck v Police and Mataiti v Police.¹¹

[20] I propose to adopt the same starting point as Wylie J in Woods, that is

18 months’ imprisonment in respect of all four breaches of protection order.

[21] For me the significant matters are that the Appellant has gone to the address several times, at night or early in the morning. The final breach occurred shortly

_{after pleading guilty to three other breaches. The Appellant’s conduct in}

¹⁰ _{Woods v Police [2015] NZHC 305.}

¹¹ Coory v Police HC Dunedin CRI-2010-412-37, 25 November 2010; Beck v Police [2014] NZHC

931; and Mataiti v Police [2014] NZHC 1675.

approaching the ex-partner’s vehicle and taking her cellphone and keys was intimidating and no doubt intended to be so. Moreover, the Court made this protection order as long ago as 2006. The Appellant needs to understand and accept that the Court has ordered him to leave his ex-partner alone and not to go to her address.

[22] Counsel are agreed that the Judge’s uplifts for the Appellant’s other offending should remain, that is four months in total, and that there should be an uplift of four months to take account of the Appellant’s criminal history.

[23] But for counsel’s agreement I would have been likely to impose a substantially greater uplift. The Appellant has convictions for breach of protection order in 2009 and 2012, in conjunction with male assaults female charges each time, and for male assaults female in 2005 and 2007 and for injuring with intent in 2007. Most, if not all, of these charges involved the same ex-partner and are separate to the Appellant’s other, numerous convictions for violence, drug related matters and breaches of other Court orders.

Guilty pleas

[24] Again, counsel are agreed that the Appellant should have a discount of the maximum 25 per cent for his guilty pleas. There can have been no doubt that the Crown case was a strong one, but I take Crown counsel’s point that in matters such as breaches of protection order, much may depend upon whether the complainant will give evidence. A guilty plea avoids that risk and spares all concerned the ordeal of a trial.

Conclusion

[25] I adopt a starting point of 18 months’ imprisonment in respect of all breaches of protection order, uplift by two months for the breach of release conditions, by two months for the methamphetamine related and knife offending, and by four months for the Appellant’s previous convictions. This gives a total of 28 months. I reduce this by 25 per cent on account of the Appellant’s guilty pleas, giving an end sentence of 21 months’ imprisonment.

[26] I quash the sentences imposed on 1 December 2015 in respect of each of the four breaches of protection order and, in relation to each, substitute terms of one year, nine months’ imprisonment, to be served concurrently.

[27] The Judge was not required to consider post-release conditions given the sentence he imposed.

[28] Given the sentence now imposed, the Appellant will be subject to the standard release conditions specified in the Sentencing Act 2002 (“Act”). Having consulted counsel, I am also satisfied that I should impose a special condition requiring the Appellant to attend such courses or facilities as a probation officer may direct to assist with remedying the Appellant’s abuse of alcohol and/or drugs. I do not propose to extend the duration of those conditions to exceed the six month period specified in the Act, nor to make a non-association order as proposed by the Crown. Aside from anything else, the issues in this case do not arise from any misunderstanding as to what the protection order requires. They arise because to date the Appellant has refused to abide that order.

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

M Peters J