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High Court of New Zealand Decisions |
Last Updated: 10 January 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000374 [2016] NZHC 3027
BETWEEN
|
HARRISON CASSIDY-GUGICH
Appellant
|
AND
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THE QUEEN Respondent
|
Hearing:
|
13 December 2016
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Counsel:
|
B Vaili for Appellant
P J L Arnold for Respondent
|
Judgment:
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13 December 2016
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ORAL JUDGMENT OF DOWNS
J
Solicitors/Counsel:
Public Defence Service, Auckland.
Meredith Connell, Auckland.
CASSIDY-GUGICH v THE QUEEN [2016] NZHC 3027 [13 December 2016]
The issue
[1] The appellant pleaded guilty to charges of kidnapping and
breaching a protection order. He was sentenced
to a term of two years
and three months’ imprisonment.1 The appellant contends the
sentence is manifestly excessive. Home detention is exhorted.
[2] The appeal is out of time, but the Crown offers no opposition to
leave being granted for the appeal to be heard. I grant
leave.
Background
[3] The victim is the appellant’s former partner. After leaving
him, she moved back with her parents. The appellant
continued to make unwanted
contact. He was eventually served with a trespass order in relation to the
address. But the appellant
continued to park nearby and watch the victim
through binoculars.
[4] In January 2016, the victim applied for and obtained a protection
order. The appellant continued to send her text messages.
He would often ask
for money.
[5] On 9 February 2016, the victim finally relented. She drove her
car to the meeting place, got out and handed the appellant
$100 through the car
window. He said he would give the money back if she sat in the car and listened
to him. The victim did so.
The appellant then drove away with the victim in
his car. She repeatedly asked him to stop. The appellant did not. The victim
yelled at passersby and then tried to open the door. The appellant slammed on
the brakes, which caused her o hit her head on the
dashboard (she was not
wearing a seatbelt).
[6] The appellant drove the victim for approximately seven kilometres. As they passed a dairy, the victim threw her handbag out of the window. She told people there to call the Police. She then tried to do so herself using her mobile phone. The
appellant grabbed it off her and threw it out of the
window.
1 R v Cassidy-Gugich [2016] NZDC 22523.
[7] When the appellant noticed the victim’s handbag was missing,
she told him it was back at the dairy and Police would
be coming. The appellant
then returned her to the dairy. Members of the public intervened. The appellant
drove away.
[8] The victim sustained no physical injuries, but was extremely
distressed. She describes feeling brainwashed and worn down
by the
appellant’s harassment, humiliated and vulnerable.
[9] The appellant is 23 years old. His pre-sentence report describes an extensive criminal history “littered with drug, dishonesty and drink and driving-related offences”. The appellant also has a conviction for threatening to stab someone in
2010. The report refers to genuine remorse on his part, albeit “the
depth of this is unknown”. The appellant is considered
to pose a high
risk of harm to others, especially any partner or girlfriend.
[10] Judge Down adopted a starting point of two and a half years’
imprisonment for the kidnapping offence. The Judge applied
a three month uplift
for the breach of the protection order offence, and a further three month uplift
for the appellant’s previous
offending. His guilty pleas attracted a full
25 percent discount, resulting in a sentence of two years and three
months’ imprisonment.
The appellant’s case
[11] The appellant contends the sentence is manifestly excessive. That
said, his analysis is not much different from that adopted
by the Judge. The
appellant submits the starting point should have been two years and two
months’ imprisonment (not two and
a half years’ imprisonment), and
total uplifts not more than four months (rather than six months). The appellant
contends
the sentence was in range for home detention and that sentence should
have been imposed.
Analysis
[12] The crime of kidnapping is without a guideline sentencing judgment and so a number of cases were cited in argument. It is sufficient to refer to two.
[13] In Heke v R the defendant broke into his ex-partner’s
home, pulled her down the stairs by the hair and pushed and shoved her.2
The defendant also threatened to kill the victim. Events came to an end
only when Police were called. The Judge at first instance
adopted a starting
point of two years and four months’ imprisonment. The Court of Appeal
described that as orthodox and well
within range.
[14] In Moffatt v R the defendant and his partner were driving
home.3 They argued. The victim asked to be let out of
the car. The defendant eventually complied, but when she got out the
defendant chased her and threw her back into the car. The victim tried to
escape and the defendant responded violently by ripping
her hair. The incident
came to an end when the victim called the Police from the defendant’s
address. He later made violent
threats to her. The judgment records a profound
effect on the victim. A starting point of two years and nine months’
imprisonment
was adopted in relation to the primary offence of
kidnapping.
[15] The same starting point was adopted in R v Yates, which was
not cited in argument. There the defendant assaulted the victim and
then locked her in a shipping container
for several minutes.4
That case also involved a second kidnapping charge: the defendant
dragged the victim back to the house when she tried to escape.
[16] This common law thread reveals starting points from approximately
two and a half years’ imprisonment are adopted in
relation to defendants
who briefly detain a former partner, at least when there is associated violence
or threats of violence, or
another aggravating feature or features. Longer and
more serious instances of kidnapping obviously attract more severe
sentences.
[17] Against this background the Judge’s starting point is unremarkable. So too
the uplifts. The quarrel here is four months versus six months. Sentencing
remains a discretionary exercise. No error is
apparent.
2 Heke v R [2016] NZCA 38.
3 Moffatt v R CA193/01, 30 October 2001.
4 R v Yates [2012] NZHC 3387.
[18] It follows home detention does not arise. But even if the jurisdictional threshold was crossed, this would not be an appropriate case for home detention. Sentencing imperatives of deterrence, denunciation and public protection loom large here for reasons expressed by the Court of Appeal in Heke:5
In R v Wharton, this Court observed that “[t]here can be an
infinite variety of circumstances which underlie the crime of kidnapping”
and that cases involving “a former spouse who defies a protection order
and detains a fearful, often battered and helpless
female ex-partner for motives
of power, revenge, jealousy or irrational anger” are becoming more common
and are no less serious
than other types of kidnapping. The Courts’
recognition of the particular need for deterrence, denunciation and protection
in such cases has, if anything, increased in the 12 years since that case was
decided.
[19] Autonomy is important—and violations of a person’s
autonomy are treated seriously by the criminal law.
[20] The appeal is dismissed.
...................................
Downs J
5 Heke v R, above n 2, at [10] (footnotes omitted).
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