Faith v Police [2018] NZHC 1576 (28 June 2018)

Last Updated: 30 July 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-27 [2018] NZHC 1576

BETWEEN	MICHAEL SCOTT FAITH Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	21 June 2018
Appearances:	P B McMenamin for Appellant S L Dayal for Respondent
Judgment:	28 June 2018

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1] Mr Faith pleaded guilty to charges of burglary, theft, dishonestly interfering with a vehicle, wilful damage, possession of instruments for conversion, two breaches of a protection order, two counts of male assaults female and two counts of intentional damage. On 14 November 2017, he was sentenced to a total of two years and four months imprisonment.¹ He appeals this sentence, saying it is manifestly excessive.

¹ Police v Faith [2017] NZDC 29768.

FAITH v NEW ZEALAND POLICE [2018] NZHC 1576 [28 June 2018]

Facts

[2] On 7 August 2017, in daylight hours, Mr Faith went to a property in suburban Christchurch. He entered a shed and stole vehicle batteries valued at $1,500.

[3] On 13 August 2017, he entered a vehicle parked on a suburban street and stole loyalty and fuel cards. He used a screwdriver to break the ignition barrel but fled when disturbed. He was subsequently apprehended by police with a backpack containing the stolen cards and numerous tools.

[4] On 15 September 2017, a protection order was served on him relating to his former partner.

[5] On 21 September 2017, while on bail, Mr Faith went to the address of his former partner’s step-mother. His former partner and her step-mother were there. He found his former partner in a bedroom. He verbally abused her and struck her twice in the head. He put a pillow over her face for approximately two minutes while continuing to abuse her, and punched her in the head twice more. He was asked by the step-mother to leave, but refused. Instead, Mr Faith followed his former partner into the kitchen, continuing to abuse her. He attacked her again, punching her on the left cheek. She was knocked unconscious and fell to the floor.

[6] He returned in the early hours of 22 September 2017 and broke a window to gain entry. He smashed the step-mother’s cell phone and punched his former partner in the arm and body. When pushed out, he threw a bucket of paint over the side of the house. He went to the rear of the property and smashed the windows of the step-mother’s car. He returned later in the morning and was arrested.

District Court sentencing

[7] The Judge took a starting point of two years for the offending on 21 and 22 September 2017, for repeated violence, the blows to the head and suffocation. These acts were in breach of the protection order and aggravated by spiteful damage to the house, cell phone and car.
[8] An uplift of ten months for the burglary and six months for the vehicle related offending on 13 August 2017 applied, as distinctly separate offending. The Judge found that Mr Faith intended to take the car, and would likely have done so, if not disturbed.

[9] The Judge considered aggravating factors, and applied a two month uplift for offending while on bail and while subject to sentences of supervision and community work, and a further uplift of two months because the offending in the early hours of 22 September 2017 involved unlawful presence in the house. A third uplift of two months applied for the fact that much of the offending was premeditated. Mr Faith has 27 previous dishonesty convictions, four convictions for male assaults female and a conviction for breaching a protection order, and the Judge applied an uplift of four months for this.

[10] Mr Faith pleaded guilty to all charges, although his pleas were delayed in respect of the earlier charges. He was willing to participate in restorative justice, although the victims were not. For those matters, the Judge reduced the sentence by 12 months to just over three years and two months imprisonment. Looking at the totality of the sentence, the Judge further reduced the sentence by three months. The overall sentence was therefore two years and 11 months imprisonment imposed as follows:

(a) Two years imprisonment for breaches of the protection order;

(b) 12 months imprisonment for the charges of male assaults female, to be served concurrently;

(c) Eight months imprisonment for the charge of burglary, to be served cumulatively,

(d) Three months imprisonment for the charge of interfering with a motor vehicle, to be served cumulatively;
(e) One months imprisonment for the other charges, to be served concurrently.

Leave to appeal out of time

[11] The notice of appeal was filed outside the 20 working day window required by s 248(2) Criminal Procedure Act 2011. Mr Faith completed an application which did not reach his counsel.

[12] The overriding consideration for an extension of time is whether the interests of justice support that. Weight will be given to the merits of the appeal.² It may be relevant that the respondent does not oppose leave.³ Leave to appeal out of time is here granted as the respondent is not disadvantaged and the interests of justice support the appeal being heard. There appears to have been a break in the link with counsel which explains the late filing.

Principles on appeal

[13] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act and are determined in accordance with s 250 of that Act. An appeal will only be allowed by this Court if there has been an error in the imposition of the sentence and that a different sentence should be imposed.⁴ This Court will intervene and substitute its own views if the sentence is “manifestly excessive” and not justified by the relevant sentencing principles.⁵

Submissions

Appellant’s submissions

[14] Mr McMenamin submits that the two year starting point and the final sentence for domestic violence offending was too high. Mr Faith was bailed to the address where the offending occurred. He had been living there for about two months with the knowledge and approval of the victims and the bail conditions included a curfew.

² Mikus v R [2011] NZCA 298 at [26].

³ Tekira v Police [2014] NZHC 700.

⁴ Criminal Procedure Act 2011, ss 250(2) and 250(3).

⁵ Ripia v R [2011] NZCA 101 at [15].

[15] The protection order was obtained a week before these events, when Mr Faith’s partner was not at the address and his living there was not then a concern. Mr McMenamin says that his partner came to stay there a couple of days before the offending, this put Mr Faith in a difficult position, as that was his bail address. He submits that Mr Faith was entitled to be at the address and no breach of the protection order could arise from that fact. He submits breach of the protection order by his abusive conduct is an aggravating feature of the assault but otherwise adds little to the gravity of the overall offending.

[16] He also submits that breach of the protection order falls far short of warranting a sentence of imprisonment of two years imprisonment and says a sentence in the region of six months would be adequate. He also submits that, while it may be argued that the two year sentence was intended to reflect the totality of this offending, that is by no means apparent. That would require an increase in the sentence for the assaults to compensate for any reduction in sentence for the protection order charges. This, he submits, is not available. He argues that the two sets of assaults should be seen as part of “one transaction” and the second was relatively minor, as were the injuries caused, and that an end sentence of 12 months imprisonment for these sets of offending was appropriate.

[17] Mr McMenamin also submits that the ten month uplift for the burglary was too high, given it was not at a dwelling house or place where people might be encountered, or where personal or privacy rights must be infringed. It was a shed on an industrial site which does not appear to have been secured or closed. He submits that previous dishonesty convictions should not be taken into account at this stage in the sentencing calculation, as an uplift was applied later.

[18] He also argues that the total uplift of ten months for aggravating factors was disproportionate to the substantive sentence and there should have been no uplift for being unlawfully at the property to amplify the domestic violence offending because it was already a factor in the second breach of the protection order. A charge of burglary of the dwelling house was laid but withdrawn as part of a plea deal and it was not appropriate for the Judge to penalise the appellant for that aspect.
[19] Mr Faith’s partner has made a statement in which she asks the Court not to sentence Mr Faith to imprisonment because she relies on him, and they were getting counselling to improve their relationship. She had not sought the protection order and wanted it withdrawn. The wishes of a victim are not determinative, but Mr McMenamin submits they should be taken into account by the Court.

Respondent’s submissions

[20] Ms Dayal submits that the sentence imposed was not manifestly excessive. For the offending on 21 and 22 September, Ms Dayal compares the two year starting point to Enoka v R,⁶ Goodman v R,⁷ and Areaiti v Police.⁸ All involved charges of male assaults female but the first two cases involved assault with intent to injure and injuring with intent to injure, which carry a higher penalty.

[21] Enoka v R involved two sets of offending, and during the first, the defendant put his hands around the victim’s neck and squeezed, causing her difficulty breathing. The second involved his pushing the victim to the floor and punching her. She attempted to walk away and he lifted her up by putting his arm under her chin. He pulled the cord out of the wall when she tried to call the police. He put her in a chair then pushed it away with such force she fell over. The Court of Appeal found that a starting point of three years and six months imprisonment was slightly too high.

[22] In Goodman v R, the defendant grabbed the victim by the throat and threw her over a wooden basket. She got to her feet and he pushed her down and head-butted her. He then pushed and kicked her. The Court of Appeal found that a starting point of 28 months was within the available range. A single charge of male assaults female tends to carry a term of imprisonment between two and 12 months and sentences between two and three years imprisonment for domestic violence offending are not uncommon.⁹

⁶ Enoka v R [2012] NZCA 435.

⁷ Goodman v R [2016] NZCA 64.

⁸ Areaiti v Police [2014] NZHC 2150.

⁹ Goodman v R, above n7, at [12].

[23] In Areaiti v Police, the appellant threw a glass bottle at the victim, grabbed her by the throat and pinned her against the wall, such that she struggled to breathe. Two days later he picked up a bicycle to head height and threatened her. When she locked herself inside a vehicle, he kicked the vehicle and struck the window, yelling that he was going to kill her and her family. A starting point of 18 months imprisonment was adopted.

[24] Ms Dayal submits that while Mr Faith may have been residing at the address, the protection order meant he needed his partner’s permission to be at the address once she moved in and there is no indication her consent was sought by Mr Faith on any of the three occasions he went to the property on 21-22 September.

[25] She also submits that a ten months uplift was well within range for the burglary. The fact the shed was unsecured does not diminish the seriousness of the offending. She compares this case to Craigie v R where the appellant and an associate burgled a commercial property at night.¹⁰ They stole three radiators, some scrap metal and a small welder. The total value of items taken was about $600. A starting point of 12 months imprisonment was upheld on appeal.

[26] Ms Dayal argues that the other uplifts were within range, and two months for unlawful presence in the house was an aggravating feature the Judge was required to take into account under s 9(1) of the Sentencing Act 2002.

[27] She submits that the Judge would have considered the victim impact statement which sought leniency, even if he did not expressly refer to it. The fact the victim rescinded her statement is consistent with that of a vulnerable person who has endured controlling and manipulate behaviour from a domestic partner, referred to by the Court of Appeal in R v EF.¹¹

Analysis

[28] Viewed in the round, a starting point of two years for the totality of the offending on 21 and 22 September was entirely appropriate. There were two quite

¹⁰ Craigie v R [2009] NZCA 190.

¹¹ R v EF [2012] NZCA 402.

separate assaults, one of which involved multiple attacks to the head and attempted suffocation. The second was compounding in its flagrant disregard for the protection order and doubled down on the first. One attack was sufficient to render the complainant unconscious. The assault charges warranted a starting point of at least 15 months in my judgment. The two breaches of a protection order cannot be set aside. Mr McMenamin agreed they warranted an end sentence of six months, and for the two charges of intentional damage, an uplift of around 3 months imprisonment. The starting point of two years for the totality of this offending was well within range, as indicated by the cases referred to by Ms Dayal.

[29] Mr McMenamin is right that the Judge applied a two year end sentence to the breach of protection order charges when much of the weight of the offending lay in the assault charges. This reasoning of the Judge was I think an administrative convenience and does not negate the starting points appropriately reached for each charge.

[30] I agree with Mr McMenamin that an uplift for Mr Faith being unlawfully at the property on 22 September would be out of place. Mr Faith was required to be there because of his bail conditions. When he came back, having been told to leave this “excuse” falls away. However, given the totality adjustment made by the Judge, the removal of this uplift does not affect the end result.

[31] I do not consider that the statement made by the victim requires adjustment to the sentence. It is common in domestic violence cases for victims to change their minds and then express support, even affection, for the offender but this is a sad reflection of the nature of a relationship which includes violence.

[32] The ten month starting point for burglary is within range for a burglary involving a commercial shed. Dwelling house burglaries attract starting points of eighteen months and above. The substantially lower starting point reflects the fact that there was little risk Mr Faith would encounter other people, and the lower level of invasion of privacy during daytime. This starting point may be reached without taking account of Mr Faith’s previous burglary convictions so there has been no double counting of that factor.

Conclusion

[33] The sentence reached by the Judge was not manifestly excessive, and the appeal is dismissed. Mr McMenamin was as usual persuasive in his approach but standing back this is, in total, a cluster of serious offending and the violence in the male assaults female charges is the directive element of the sentence. If anything, the overall sentence is lenient.

[34] The appeal is dismissed.






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

Nicholas Davidson J

Solicitors:

K J McMenamin & Sons, Christchurch Raymond Donnelly & Co., Christchurch