Irvine v Police [2017] NZHC 3085 (12 December 2017)

Last Updated: 19 December 2017

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-000047 [2017] NZHC 3085

BETWEEN	CHRISTOPHER WILLIAM IRVINE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	12 December 2017
Appearances:	J U Mooney for the Appellant R W Donnelly for the Respondent
Judgment:	12 December 2017

_{JUDGMENT OF DUNNINGHAM J}

Introduction

[1] The appellant was charged with, and pleaded guilty to two breaches of a protection order. He was sentenced to eight months’ imprisonment.¹ He now appeals against his sentence, primarily on the basis that it was manifestly excessive.

Background

[2] The appellant and his victim had previously been in an on and off relationship for approximately three years. On 20 July 2017, a final protection order was issued in the Invercargill Court requiring the appellant not to have contact with the victim. He

_{was also named on a trespass notice in relation to the victim’s home address. However,}

¹ _{Police v Irvine [2017] NZDC 23869.}

IRVINE v NEW ZEALAND POLICE [2017] NZHC 3085 [12 December 2017]

between 4.39 pm on Monday, 24 July 2017 and 3.27 pm Wednesday, 26 July 2017, the victim received 23 telephone calls from the defendant. She answered the third telephone call and told the defendant to leave her alone and stop ringing her, and the remaining telephone calls were dismissed or immediately terminated by the victim.

[3] At about 8.30 pm on 26 July 2017, the defendant went to the victim’s home, where he banged multiple times on the lounge window of the house before leaving the property.

District Court decision

[4] The District Court Judge began by reiterating that a breach of a protection order was considered a serious offence, and that Parliament’s recent decision to increase the maximum sentence from two years to three years reflected the concern about this kind of offending.

[5] After outlining the facts of the offending, and some earlier related offending against the same complainant, including speaking threateningly to her, the Judge adopted a starting point of 10 months’ imprisonment. In setting this he referred to the effect of his offending on the victim, his concerns for her safety, and the principles of denunciation and deterrence.

[6] The only credit he considered he could give was for the guilty pleas which reduced the sentence to seven and a half months. To that the Judge added a further two weeks to take into account remission of a substantial amount of outstanding fines owing by the appellant. He also cancelled the appellant’s outstanding sentence of community work, resulting in an end sentence of eight months’ imprisonment with standard release conditions.

Principles on appeal

[7] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different

sentence should be imposed.² The Court will not engage in an exercise which amounts to mere tinkering with the sentence.³

Analysis

[8] The appellant argues the following grounds of appeal:

(a) the sentence was manifestly excessive, by reference to the starting point on the breach offending, and the Judge’s refusal to give credit for the appellant’s willingness to participate in restorative justice;

(b) the District Court Judge erred by apparently relying on an old victim impact statement, which the appellant had not seen, and on which he had not had an opportunity to comment; and

(c) the District Court Judge erred by not affording a further discount for the appellant’s willingness to attend restorative justice.

Was the starting point appropriate?

[9] The appellant submits that the starting point of 10 months was too high, such that the resulting end sentence was manifestly excessive. He emphasises that these were the first and second breaches of a new protection order which was recently imposed, and that it was at the lower end of the spectrum in terms of seriousness. In those circumstances, he submits that the appropriate starting point was three to four months, with an uplift of one or two months for previous convictions, for a starting point of no more than six months’ imprisonment.

[10] The respondent submits that the starting point was justified having regard to aggravating features of the offending. The respondent refers to the fact that the breaches occurred in short succession, within days of the imposition of the protection order, and evidenced “escalating behaviour” from harassing phone calls to physical

_{intrusion onto the property and intimidating behaviour whilst there. Additionally, this}

² Criminal Procedure Act 2011, ss 250(2) and 250(3).

³ Maihi v R [2013] NZCA 69.

was offending committed whilst the appellant was subject to a sentence of community work stemming from earlier offending against the same complainant.

[11] The respondent also notes that the starting point of 10 months must implicitly include an appropriate uplift for the fact that this offending occurred whilst subject to sentence, and for the appellant’s not insubstantial previous history, which included two charges of speaking threateningly in 2014, breach of community work, two breaches of release conditions in 2009, and a pattern of other offending including assault and violence offending, although he has no previous convictions for breach of protection orders specifically. Ultimately, the respondent submits that a starting point which is less than a third of the maximum now available, cannot be said to be manifestly excessive.

[12] The appellant refers to comparable authority involving the commission of breach offences following the 2013 amendments. Reid v Police involved two breach charges, and one charge of breach of release conditions.⁴ The appellant had remained at his former partner’s address for 24 hours, and interfered with her cell-phone. He was arrested and bailed for that offending. Then a few weeks later he returned to her address, where he remained for three days. On appeal, Lang J considered that a four month starting point was appropriate for the first charge, with an uplift of two months for the second charge, which was aggravated by the fact that the breach was continuing over three days, and occurred within a month of the earlier charge. A further two month uplift was appropriate to reflect the appellant’s history (which included assault and previous breach of protection order convictions), and the fact the second breach occurred whilst he was on bail in respect of the first. An end starting point of eight months was therefore justified and the resulting sentence was “well within the available range”.⁵

[13] In Mitchell v R, a starting point of eight months’ imprisonment on four breach of protection order charges was considered by the Court of Appeal to be at the top end

_{of the scale for offending at the low end of the spectrum.}⁶ _{I note, however, that the}

⁴ Reid v Police [2015] NZHC 299.

⁵ At [14].

⁶ Mitchell v R [2015] NZCA 442, (2015) 30 FRNZ 534.

events giving rise to those charges occurred in 2012 and early 2013, before the amendments increasing the maximum penalty for the offence came into force. One of the aggravating features of that offending, which is absent here, was the fact that the appellant there had sent abusive and threatening text messages. The appellant says that here, the banging on the house windows could “at most...have been seen as intimidating”, although I consider that is to downplay both the seriousness and effect of the offending.

[14] Finally, the appellant refers to Hamilton v Police.⁷ In that case, the appellant was sentenced on charges of breach of protection order, male assaults female, and breach of release conditions. The appellant had visited the complainant’s address and been verbally abusive to her, before grabbing her phone when she attempted to call police, and pushing her against the wall. The appellant also had an extensive criminal history, including 10 prior convictions for assault, four breaches of protection orders, and numerous other breaches of court-imposed orders and conditions.

[15] On appeal, Duffy J considered that the starting point of 18 months on the single breach charge was too high. The appropriate starting point was eight months’ imprisonment, with an uplift for the assault offending. Duffy J also referred to Mataiti v Police,⁸ another case decided after the 2013 amendments. In Mataiti, the appellant faced two breach of protection order charges, which reflected two incidents several months apart. On each occasion, the appellant had become verbally abusive towards the complainant and had refused to leave the property when asked. The appellant also had a series of relevant previous convictions, including several convictions for assault, domestic assault, and male assaults female, and three breaches of protection orders. The Judge considered that there should be a cumulative starting point of eight months for each of the two charges, before giving the appellant credit for early guilty pleas. This approach was not disturbed on appeal.

[16] The Crown refers to Morris-Stewart v Police, where a 12 month starting point on a single breach of protection order charge was upheld on appeal.⁹ The appellant in

⁷ Hamilton v Police [2014] NZHC 2698.

⁸ Mataiti v Police [2014] NZHC 1675.

⁹ Morris-Stewart v Police [2016] NZHC 1030.

that case had two previous convictions for breach of a protection order, although it appeared that the judge did not take this into account in setting the initial starting point, but rather in applying an uplift. The breach in that case related to text messaging over a 24 hour period. The content of many of those text messages was highly threatening and abusive, which is a distinguishing factor from the offending in this case, although there was not the physical presence and physically intimidating behaviour exhibited in the second instance of offending here.

[17] In the circumstances, I am satisfied that the starting point of 10 months for the two offences and taking into account his previous offending, although at the upper limit of the appropriate range, was nevertheless available to the Judge. Although the appellant does not have a history of direct breaches of protection orders, his attitude to the order imposed here was troubling and reflected a pattern of behaviour evident in his previous offending. Within days of its imposition he breached it in a flagrant and continuing manner, and then breached it again within a matter of weeks. At the time each of these offences was committed, the appellant was subject to sentence for earlier offending. These are all aggravating factors, which heighten the seriousness of the offending overall.

Reference to the victim impact statement

[18] The appellant submits that the Court erred by taking into account what appears to be an “old victim impact statement” which had not been shown to him and on which he had not had an opportunity to comment. The respondent submits that the comments of the victim in the restorative justice report where she said that she did not wish to take part in the restorative justice process as “she holds no animosity towards the defendant”, were in stark contrast to the victim impact statement that the Court referred to at some length in its sentencing decision. The appellant says he was shocked to hear what was said in the victim impact statement as he understood the victim had wished to reconcile with him. Accordingly, the Court may have been led into error by having “an outdated victim impact report which did not reflect the views of the victim at time of sentencing”.

[19] However, as the respondent points out, there is no particular obligation to show the victim impact statement to the defendant unless it is asked for, and it is not apparent what submissions the appellant wished to, or could have made, in respect of the comments in the victim impact statement. It is clear the Judge had both the restorative justice report, saying the victim did not wish to participate, and the victim impact statement, and the Judge clearly put weight on her statement that she did not want to have anything more to do with the defendant. Ironically, the appellant’s unwillingness to take the victim impact statement at face value, is indicative of the attitude which underpinned his offending in this case.

Should there have been a discount for his willingness to attend restorative justice?

[20] The final issue raised by the appellant is that the Judge should have given him a further credit for his willingness to participate in restorative justice. However, the nature and appropriateness of a credit for this factor was recently discussed by Nation J in Henare v R.¹⁰

There is no requirement on a sentencing Judge to provide a discount for an offer to attend restorative justice. It is a discretionary decision... [w]ith the Criminal Procedure Act now allowing for involvement in the restorative justice process as a matter of course, a mere indication that someone is willing to participate in the process may, of itself, mean little. That willingness is to be given more weight when it is coupled with other evidence that shows an offender has taken responsibility for his offending and wishes, in a meaningful way, to atone for it as best he can. A mere indication that he will participate in the process may reveal little of this.

[21] In this case, the Judge did not specifically refer to the question of restorative justice, but this is perhaps not surprising given that the victim had declined to participate in it, so it was not a viable option. In any event, the Judge was entitled to evaluate the weight of the appellant’s express willingness to participate in restorative justice and put it to one side. The pre-sentence report noted that the appellant appeared not to fully take on board his actions in relation to how they affected the victim, stating “I did not hurt her physically”. I consider, therefore, that the evidence as to the genuineness of the appellant’s remorse and his understanding of the impact of his offending was equivocal. Accordingly, I am not persuaded that the Judge erred by

_{failing to give a discount on this account.}

¹⁰ Henare v R [2017] NZHC 2397 at [17].

Conclusion

[22] The appellant has failed to show that the end sentence was manifestly excessive, or that there has been some other material error such as would justify allowing the appeal. The appeal is therefore dismissed.

Solicitors:

J Mooney, Barrister, Queenstown

Preston Russell Law, Invercargill