Hessels v Police [2020] NZHC 3019 (9 December 2020)

Last Updated: 3 May 2021

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-394 [2020] NZHC 3019

BETWEEN	CHRISTOPHER JOHN ROBERT HESSELS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 November 2020 (further submissions received 26 November and 7 December 2020)
Appearances:	C Dunne for the Appellant B Kirkpatrick for the Respondent
Judgment:	9 December 2020

JUDGMENT OF GAULT J

This judgment was delivered by me on 9 December 2020 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

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

Solicitors:

Mr C Dunne, Public Defence Service, Waitakere

Mr B Kirkpatrick and Ms B Archibald, Meredith Connell, Office of the Crown Solicitor, Auckland

HESSELS v POLICE [2020] NZHC 3019 [9 December 2020]

• [1] Mr Hessels pleaded guilty to five charges of breach of a protection order.¹ He appeals against the refusal of District Court Judge K J Glubb to grant him a discharge without conviction in respect of those charges.² In the alternative, Mr Hessels says his sentence of four months’ community detention and 10 months’ supervision is manifestly excessive.

Facts of the offending

• [2] Mr Hessels and the victim were in a relationship for approximately four months.

• [3] On 26 February 2019, a protection order was issued in the Waitakere District Court in favour of the victim and her son. The order was made final on 27 May 2019. One of the special conditions attached to the protection order is for Mr Hessels to give the Police at Henderson no less than 48 hours’ notice if he intends to enter the greater Auckland area.

• [4] On Saturday 2 November 2019, Mr Hessels entered the greater Auckland area. He planned to move from Christchurch to Auckland. He did not advise Police that he had done so.

• [5] On Saturday 7 November 2019, Mr Hessels sent the victim a message on Facebook.

• [6] On 18 February 2020 at 3:09 am, Mr Hessels emailed the victim and apologised for his past behaviour. He attached a photo of the victim’s son. He acknowledged he was not allowed to contact the victim and told her she could take the email to the Police if she wanted, but he hoped she would not.

• [7] At 4:00 am, he emailed the victim again and said he had a gift for her son. A photograph of a video game was attached.

¹ Family Violence Act 2018, ss 90(a) and 112(1)(a).

² Police v Hessels [2020] NZDC 18463.

• [8] The next day, on 19 February 2020 at 11:24 am, Mr Hessels emailed the victim the same photo of her son.

• [9] On 20 February 2020 at about 9:44 pm, Mr Hessels asked the victim via email if he could send her son the video game.

• [10] On 25 February 2020 at about 1:52 am, Mr Hessels emailed the victim twice and sent multiple screenshots of a Facebook post which discussed their past relationship. Mr Hessels explained the post was created to share the victim’s side of the story. In the post, Mr Hessels admitted to having threatened to share private photos of the victim.

• [11] At about 4:16 am, Mr Hessels sent the screenshots of the Facebook post to the victim again.

• [12] Approximately an hour later, at about 5:14 am, Mr Hessels sent the victim an email which expressed his feelings for her.

• [13] On 26 February 2020 at about 1:13 am, Mr Hessels emailed the victim and acknowledged he would be getting arrested. He expressed his feelings again and wrote the victim a song. He stated that he knew the victim disliked him and made reference to her current partner.

• [14] Just over two hours later, at about 3:31 am, Mr Hessels emailed the victim and again acknowledged he would be getting arrested. He expressed his feelings once more and told her that he believed he has told people the full story for both of them. He did not intend to bring drama into her life and thanked her for reading and listening to his messages for the past weeks. He acknowledged the victim had not replied to any of those messages.

• [15] About ten minutes later, Mr Hessels emailed the victim multiple photos, some of which were photos of her son.

• [16] Approximately an hour later, Mr Hessels emailed the victim again. He told her she was the best he ever had and that this would be his last email “before he goes”.
• [17] On 9 April 2020 Mr Hessels purchased a $50 PAK’nSAVE gift card and sent it to the victim at her home address. He said he thought the victim needed financial support during the COVID-19 lockdown.

Approach on appeal

• [18] An appeal against a refusal to grant a discharge without conviction is an appeal against both conviction and sentence.³ The appeal against conviction will be successful if a miscarriage of justice has occurred, either by virtue of a material error by the sentencing Judge in entering a conviction or if the Judge erred in applying the principles of discharging an offender without conviction under s 107 of the Act.⁴

• [19] Section 106 of the Sentencing Act 2002 gives a court the discretion to discharge an offender without conviction. Under s 107, this discretion cannot be exercised unless the direct and indirect and consequences of a conviction would be out of all proportion to the gravity of the offence. Section 107 requires the Court to undertake a three-step analysis and consider:⁵

(a) the gravity of the offence;

(b) the direct and indirect consequences of a conviction; and

(c) whether those consequences are out of all proportion to the gravity of the offence.

• [20] The proportionality test under s 107 is a question of fact requiring judicial assessment. If the appellant can show that the first instance decision was wrong, the evaluation of the s 107 factors is considered afresh.⁶

• [21] If the conviction appeal fails, the Court will only then determine whether the correct sentence was imposed.⁷

³ Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]- [8] and [16].

⁴ At [12].

⁵ Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8].

⁶ See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].

⁷ Jackson v R at [13].

• [22] Under the Criminal Procedure Act 2011, the Court must allow the sentence appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed.⁸ Otherwise, the Court must dismiss the appeal.⁹

• [23] In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.¹⁰ Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.¹¹ The focus is on the end result rather than the process by which the sentence was reached.¹²

District Court decision

• [24] The Judge considered Mr Hessels’ offending was planned and premeditated. It was repetitive and persistent over a period of five months. The Judge also considered the very existence of the protection order made it patently clear that the victim was vulnerable. Mr Hessels’ “complete and utter disregard” for the protection order’s significance was noted and the Judge considered this was evidenced by Mr Hessels’ acceptance that he would likely be arrested for his communications with the victim.

• [25] The Judge detailed the effect Mr Hessels’ offending has had on his victim. She provided multiple victim impact statements which described the psychological impact his offending has caused. She found Mr Hessels “obsessive and manipulative” as well as unpredictable. She was disturbed by his move to Auckland. In her February 2020 victim impact statement, she said it feels like she cannot get away from Mr Hessels. She is scared of him and expressed concerns about the effectiveness of the protection order given his repeated attempts to contact her. The Judge commented that the very significant psychological and emotional impact of Mr Hessels’ conduct cannot be underestimated.

⁸ Section 250(2).

⁹ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

¹⁰ Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R at [30]-[35].

¹¹ Tutakangahau v R at [33]-[34].

¹² At [36].

• [26] The Judge then considered aggravating features of the offending and Mr Hessels himself. He noted Mr Hessels’ previous convictions, which are largely for driving-related offending. The Judge also noted that Mr Hessels was on bail when he committed the majority of the offences (except for the first charge).

• [27] The Judge then turned to consider Mr Hessels’ application for a discharge without conviction under s 106 of the Sentencing Act 2002 and outlined the applicable law.

• [28] In assessing the gravity of Mr Hessels’ offending, the Judge did not accept this offending was at the lowest level. Its persistent nature meant it was serious offending of its nature. The Judge recognised Mr Hessels pleaded guilty at an early opportunity and expressed remorse but expressed some reservations about the degree of Mr Hessels’ remorse given he recognised he would be arrested at the time of much of the offending. In addition, the Judge acknowledged Mr Hessels had participated in the Stopping Violence Programme. Mr Hessels’ willingness to participate in restorative justice was characterised by the Judge as “utterly unrealistic” given the victim was “effectively ... terrorised” by Mr Hessels’ ongoing conduct.¹³ But the effect of these mitigating features served to reduce the gravity of Mr Hessels’ offending to “moderately serious”.

• [29] In assessing the consequences for Mr Hessels if convicted, the Judge was not satisfied there was a real and appreciable risk to Mr Hessels’ employment in a retail job but considered that even if there were, it would be a matter for the employer to assess. Similarly, the Judge considered that if Mr Hessels were to work as a masseuse (he is enrolled in a massage course), his employer would be entitled to know of his “obsessive streak”.¹⁴ Equally, the Judge was not satisfied there was a real and appreciable risk that a conviction would mean Mr Hessels would be unable to travel.

• [30] On balance, the Judge was not satisfied the consequences of conviction would be out of all proportion to the gravity of the offending. He declined to grant a discharge without conviction.

¹³ Police v Hessels [2020] NZDC 18463 at [33].

¹⁴ At [36].

• [31] The Judge then proceeded to sentence Mr Hessels.

• [32] He referred to the decision of Crean v Police, in which a starting point of 15 months’ imprisonment was upheld where the appellant had refused to leave a victim’s address when subject to a protection order on two occasions.¹⁵

• [33] With a view to totality, the Judge adopted a starting point of 14 months’ imprisonment. That starting point accounted for the fact that majority of the offending occurred while on bail. Mr Hessels’ previous convictions were not thought relevant.

• [34] The Judge allowed a discount of 30 per cent in light of Mr Hessels’ pleas, remorse and rehabilitative efforts.¹⁶ That brought the sentence to approximately 10 months’ imprisonment.

• [35] The Judge concluded it was appropriate to convert the sentence to a community-based sentence. But he observed that this offending was not benign simply because it did not involve actual violence. It was insidious and persistent. The Judge considered the need to protect the victim and to denounce Mr Hessels’ behaviour.

• [36] The Judge was not satisfied community work would adequately meet the gravity of the offending and be sufficiently punitive. On each of the five charges, he imposed a sentence of community detention for a period of four months. He also imposed a sentence of 10 months’ supervision, with the condition that Mr Hessels undertake and complete such treatment, counselling or programme as directed by the probation officer.

Submissions

• [37] Mr Dunne, counsel for Mr Hessels, submitted the Judge incorrectly characterised the offending as involving a high degree of seriousness. While Mr Dunne accepted breach of a protection order is a reasonably serious charge, he

¹⁵ Crean v Police [2015] NZHC 3203.

16. I infer the Judge allowed a 25 per cent discount for Mr Hessels’ guilty plea and a five per cent discount for his remorse and efforts.

submitted that it is important to look at the circumstances of Mr Hessels’ offending. Mr Dunne referred to several factors which he said are relevant to Mr Hessels’ overall culpability.

• [38] First, he submitted the protection order in favour of the victim was not issued as a result of a family harm incident and the breaches should not be considered as serious as those in cases where they were precipitated by physical violence, despite being psychologically troubling. Mr Dunne stepped through each of the communications Mr Hessels had with the victim and characterised the gravity of each as either “very low” or “low”.

• [39] Mr Dunne emphasised that Mr Hessels was suffering from depression at the time of his offending. He submitted the Judge did not account for this. Mr Dunne also identified the following mitigating features of Mr Hessels’ offending: he pleaded guilty, was genuinely remorseful and had made rehabilitative efforts. He further submitted that the likelihood of Mr Hessels reoffending in a similar way is low.

• [40] In relation to the consequences of conviction, Mr Dunne submitted that having family violence convictions is likely to impede Mr Hessels’ prospects of receiving a permanent role with his current employer or even retaining a casual role. Mr Hessels was offered the position after the protection order charges but before sentencing. In addition, Mr Dunne submitted the convictions may prevent Mr Hessels from embarking on a career in massage. Mr Dunne submits this is not a situation where to allow a discharge would deprive an employer of relevant information, particularly when considering the non-violent nature of the breaches of the protection order. Mr Dunne further submitted that Mr Hessels’ ability to travel would be affected and that convictions for family violence may cause a relapse in his depression. On balance, Mr Dunne submitted the consequences of conviction would be out of all proportion to the gravity of the offending.

• [41] In relation to the sentence itself, Mr Dunne submitted the Judge erred in relying on the decision of Crean v Police as Mr Hessels’ offending was not comparable. Mr Dunne also noted the Judge’s starting point of 14 months’ imprisonment was four months higher than the starting point suggested by Police. He did not suggest an

alternative starting point but submitted the end sentence was manifestly excessive. He submitted there was no need for Mr Hessels to serve a sentence of supervision because he had completed a “stopping violence” programme well before his sentencing date. Mr Dunne also noted Mr Hessels does not have any previous convictions for violent offending.

• [42] Mr Kirkpatrick, counsel for the respondent, submitted the Judge did not err in assessing the gravity of Mr Hessels’ offending. Mr Hessels breached the protection order on numerous occasions over a period of five months. The respondent did not accept the fact the protection order was granted in the Family Court context as opposed to at sentencing after violent offending has any bearing on the gravity of the offending. In addition, the respondent did not accept the emails sent in February were “apologetic throughout”. Mr Kirkpatrick characterised them instead as manipulative and obsessive in nature.

• [43] Mr Kirkpatrick submitted the Judge was correct to consider the offending was planned and premeditated and noted that Mr Hessels entered a guilty plea to one charge of breaching a protection order on 7 February 2020 before offending again just 11 days later on 18 February. The majority of Mr Hessels’ offending also occurred while he was on bail.

• [44] Mr Kirkpatrick did not accept the Judge placed too much emphasis on the harm caused to the victim and referred to s 9 of the Sentencing Act 2002, which requires a court to take into account any harm caused as a result of an offence and whether a family violence offence occurred while the offender was subject to a protection order.

• [45] Mr Kirkpatrick accepted mental health can be a mitigating factor relevant to the overall assessment of the gravity of the offending. But he submitted the Judge did take Mr Hessels’ depression into account. Also, he submitted there was no documentation to support Mr Hessels’ submission that he was suffering from depression at the time of his offending. While documentation shows Mr Hessels received support with managing his depression from the Pegasus Mental Health Service, he was discharged on 13 May 2019 after self-reporting that he was feeling better. This predates his offending by approximately six months. However, Mr Dunne

indicated that there had been treatment in 2020. Mr Kirkpatrick acknowledged that and did not oppose an adjournment on the basis that further evidence of mental health treatment would be relevant to culpability. The parties agreed to a timetable for further evidence and memoranda and for me then to determine the appeal on the papers without a further hearing.

• [46] In any event, Mr Kirkpatrick submitted the Judge gave due credit to Mr Hessels’ early guilty plea, remorse and low likelihood of reoffending in reducing the gravity of the offending from serious to moderately serious.

• [47] Mr Kirkpatrick submitted the Judge did not err in determining that Mr Hessels had failed to establish that convictions would be a real and appreciable risk to Mr Hessels’ employment. There was nothing in Mr Hessels’ casual employment agreement that required him to declare his convictions. Mr Kirkpatrick submitted it is speculative to conclude Mr Hessels’ chances of receiving a permanent role or retaining his causal role would be impeded by his convictions. Similarly, Mr Kirkpatrick submitted there is no evidence as to how Mr Hessels’ convictions would be taken into account by the providers of his massage course and no evidence that the convictions would result in an absolute bar to his career as a masseur. Mr Kirkpatrick noted it could also be said that Mr Hessels’ other convictions (for mostly driving-related offending) may be relevant to the course provider’s vetting process. In relation to travel, Mr Kirkpatrick again submitted there is little evidence to show these convictions would prevent Mr Hessels from travelling and in any event his previous convictions may already provide an added layer of difficulty.

• [48] Mr Kirkpatrick submitted that the consequences of Mr Hessels’ offending are predictable consequences and are part and parcel of criminal offending. When weighed against the gravity of the offending, he submitted they are not out of all proportion.

• [49] In relation to Mr Hessels’ sentence, Mr Kirkpatrick submitted the end sentence was well within the range available to the Court and was the least restrictive sentence in the circumstances. He noted there is no tariff decision for breach of protection order and referred to Crean v Police and W v Police (which Mr Dunne also cited) to illustrate

the breadth of sentences imposed.¹⁷ In Crean v Police, Brewer J dismissed an appeal against a sentence of 13 months’ imprisonment imposed on two charges of breaching a protection order and one charge of breach of release conditions. In W v Police, Mallon J allowed an appeal and granted an application for a discharge without conviction where the appellant had pleaded guilty to a single charge of breach of a protection order. Mr Kirkpatrick submitted there are greater similarities between Mr Hessels’ offending and that in Crean, than that in W v Police.

Discussion

Should Mr Hessels have been discharged without conviction?

• [50] When considering the gravity of the offending, the aggravating and mitigating factors relating to both the offending and the offender require consideration.¹⁸ The Judge correctly identified that Mr Hessels’ offending involved several aggravating features. There was an element of premeditation – he knew he was not to contact the victim in any capacity but persisted in doing so. Also, the majority of the offending occurred while Mr Hessels was on bail in relation to the first charge.

• [51] I do not accept Mr Dunne’s submission that the Judge placed too much weight on the victim impact statements. The Judge was entitled and indeed bound to take into account the victim’s views and the extent of the harm resulting from the offence.¹⁹ The victim’s statements meet all the purposes of victim impact statements as listed in s 17AB of the Victims’ Rights Act 2002 and I do not consider there was too much reliance on those statements.

• [52] Mr Dunne emphasised the lack of aggression or threatening behaviour in the emails, as well as the lack of physical proximity to the victim. In addition, he characterised Mr Hessels’ behaviour in sending the supermarket gift card as involving “an offer of genuine kindness”. Even if Mr Hessels’ behaviour was misguided affection or kindness, he contacted the victim incessantly, often in the early hours of the morning and in short bursts. He knew he was not supposed to do so.

¹⁷ Crean v Police [2015] NZHC 3203; and W v Police [2019] NZHC 534.

¹⁸ Rahim v R [2018] NZCA 182 at [15].

¹⁹ Sentencing Act 2002, ss 8(f) and 9(1)(d).

It understandably caused the victim great distress. The Judge was right to emphasise the psychological impact of the offending and comment that “the fact there is no violence is simply the absence of an aggravating factor”.²⁰

• [53] I accept the degree of threat to the victim may have been lower than that in other cases, given the lack of physical proximity or violence. But while breaches of a protection order may vary in culpability, any breach of a protection order is still of concern and the psychological harm caused by a breach should not be understated.²¹ Protection orders are not lightly made; there must have been a prior incident of family violence.²² Family violence is defined to include psychological harm.²³ In addition, while this is not the worst offending of its type, s 107 focuses on the gravity of the offence committed rather than where the particular conduct sits among similar cases as a group.²⁴

• [54] On the material before the Judge, I also do not consider the Judge failed to place enough weight on the mitigating features of the offending or the offender. As the Crown rightly noted, there was little evidence before the Judge of Mr Hessels’ mental health at the time of the offending. This distinguished his case from that in W v Police, where Mallon J considered the offender’s mental health caused the offending.²⁵ The Judge was also aware that Mr Hessels suffered from depression,²⁶ and considered the gravity of the offending was reduced to moderately serious by Mr Hessels’ early guilty pleas, remorse and completion of a rehabilitative program.

• [55] As indicated, given possible confusion in the mental health evidence, the respondent did not oppose an adjournment so that further evidence of mental health could be filed. The further evidence indicated that some of the dates in the earlier medical reports were incorrect and confirmed that although Mr Hessels’ treatment had started in 2019 following a suicide attempt in February 2019, treatment

²⁰ Police v Hessels [2020] NZDC 18463 at [43].

²¹ Weidemann v R [2018] NZCA 381, [2018] NZFLR 707 at [43].

22. Taumalolo v Police [2016] NZHC 1525 at [21]. See also Family Violence Act 2018, ss 59(d) and 79.

²³ Family Violence Act 2018, s 9.

²⁴ See Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [31].

²⁵ W v Police [2019] NZHC 534 at [40].

²⁶ Police v Hessels at [28].

for depression continued into 2020, which coincides with the offending. In particular, it appears that following a gap in treatment between June and November 2019 Mr Hessels was receiving treatment for depression in December 2019 and February to 13 May 2020, when he was discharged from his treatment provider.

• [56] Mr Dunne submitted that Mr Hessels was suffering severe depression during the relevant period, was pre-occupied with ideations of suicide for about a year from February 2019, and that there is an obvious correlation between his mental health and his offending.

• [57] Ms Archibald for the respondent, in the further submissions, acknowledged that the clinical notes from December 2019 to March 2020 confirm that Mr Hessels was suffering from depression and anxiety. A major stressor for Mr Hessels was his difficult break-up with the victim and the protection order in place.

• [58] Ms Archibald noted, however, that despite Mr Hessels reporting that he felt more positive on 26 March 2020 he had offended earlier the same day by emailing the victim offering financial support. Also, on 6 April 2020 Mr Hessels reported that he had been feeling better recently and had reduced the amount of quetiapine he was taking, but despite this he further offended on 9 April 2020 by sending the PAK’nSAVE gift card to the victim.

• [59] Ms Archibald submitted that the mental health records fall short of displaying an obvious correlation between Mr Hessels’ mental health and his offending, although she accepted that there appears to be some correlation between his mental health and his break-up with the victim of his offending. The respondent’s position remains as stated at the hearing. Ms Archibald submitted that the Judge did appropriately take into account Mr Hessels’ depression at the time of the offending, and the records that have now been provided merely confirm what was already taken into account at sentencing.

• [60] As Ms Archibald acknowledged, the further clinical notes from December 2019 to March 2020 indicate that Mr Hessels was suffering from depression and anxiety. I consider the further evidence does indicate a correlation between

Mr Hessels’ mental health and his offending. While the Judge did appropriately take into account Mr Hessels’ depression at the time of the offending based on the material available, I consider the further evidence demonstrates some causal nexus with the offending and is therefore relevant to Mr Hessels’ culpability and thus the gravity of the offending. In this new light, I consider the offending was of moderate gravity for this type of offending at most and at least at the higher end of a low-level breach.

• [61] However, I consider this case remains distinguishable from W v Police, where the persistent texting was from a mother distressed about her daughter’s well-being. Also, importantly, there were several personal mitigating factors in that case, including W’s personality disorder which explained why she continued to text the complainant despite being told not to by the complainant and the Police.²⁷

• [62] I agree with the Judge’s assessment of the consequences of conviction for Mr Hessels. I accept family violence convictions may affect Mr Hessel’s employment opportunities. But there is no evidence of a real and appreciable risk that his convictions will prevent him from obtaining a permanent job with his current employer or being able to work as a masseur. To say otherwise would be speculative. Mr Hessels’ affidavit filed on the morning of the hearing confirmed he has been offered a full-time position by his current employer and does not assist in relation to a risk that may be terminated. As Mr Kirkpatrick submitted, it does not indicate a real and appreciable risk of termination. Similarly, the massage course offer only says “subject to Police vetting”. In addition, while conviction may affect a person’s career, “that consequence must normally yield to the employer’s right to know”.²⁸

• [63] Similarly, while a conviction may affect Mr Hessels’ ability to travel to certain countries, there is nothing to suggest the potential impact on travel here is any different from the ordinary consequence attaching to conviction.²⁹ There was also no evidence that conviction may cause a relapse in his depression.

²⁷ W v Police [2019] NZHC 534 at [40].

²⁸ R v Taulapapa [2018] NZCA 414 at [42(a)].

29. See Mathieson v Police [2019] NZCA 406 at [20]; and Brunton v Police [2012] NZHC 1197 at [16].

• [64] Weighing the consequences of conviction against the gravity of the offending, I do not consider the consequences of conviction are out of all proportion to the gravity of the offending. The Judge did not err in declining Mr Hessels’ s 106 application, even taking into account the further evidence.

Sentence manifestly excessive?

• [65] Breaches of protection orders can vary greatly in culpability and in degrees of threat and harm to the protected person. For that reason, there is no tariff case for breaches of protection order – each case hinges on its own facts. But I accept the decision of Crean v Police is not directly comparable. There, the offender refused to leave the victim’s address. There was an element of physical proximity which is not present in Mr Hessels’ case. The current convictions are also Mr Hessels’ first for family violence, whereas the offender in Crean had two “very recent” previous convictions for breaching protection orders at the time of the offending.³⁰

• [66] In the recent decision of Thompson v Police, Cull J commented:³¹

For non-violent breaches of a protection order the starting point may begin at around four months’ imprisonment, with that starting point increasing depending on other circumstances or aggravating factors.

• [67] In Irvine v Police, Dunningham J held a starting point of 10 months’ imprisonment was at the upper limit of the appropriate range for two breaches of a protection order.³² The appellant had called the victim 23 times over the course of two days and two days later arrived at her address and banged on the window.

• [68] In Turner v Police, a starting point of 14 to 15 months’ imprisonment was adopted for a single breach of a protection order.³³ The appellant – who had 11 previous convictions for breaching protection orders – sent the victim an offensive and derogatory text message.

30. Crean v Police [2015] NZHC 3203 at [18(c)]. As Brewer J commented at [16(b)], previous breaches of protection orders are integral to the assessment of the gravity of the offending.

³¹ Thompson v Police [2020] NZHC 20 at [19].

³² Irvine v Police [2017] NZHC 3085.

³³ Turner v Police [2017] NZHC 1113.

• [69] While a case by case comparison is always difficult in this context, I consider a starting point of 14 months’ imprisonment is manifestly excessive, even accounting for the fact that majority of Mr Hessels’ offending took place on bail. Taking into account the number of charges, the persistent nature of the communications, often during the night, and the five-month time period over which the offending occurred, I consider a starting point of 10 months’ imprisonment was more appropriate, including to reflect the offending on bail.

• [70] However, this does not render the end sentence manifestly excessive. The Judge discounted the starting point by 30 per cent and then converted the sentence to of one community detention. He expressly noted that Mr Hessels had never served a sentence of imprisonment before. Even taking into account the reduced culpability given the further medical evidence, an end sentence of four months’ community detention and 10 months’ supervision is not manifestly excessive – the end sentences in both Turner and Irvine were sentences of imprisonment.

• [71] Accordingly, I do not consider the Judge erred in declining Mr Hessels’ application for a discharge without conviction and imposing a sentence of four months’ community detention and 10 months’ supervision.

Result

• [72] The appeal is dismissed.

Gault J