KEEGAN v NEW ZEALAND POLICE [2020] NZHC 489

KEEGAN v NEW ZEALAND POLICE [2020] NZHC 489 [12 March 2020]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2020-441-000002[2020] NZHC 489BETWEEN AARON JON KEEGANAppellantAND NEW ZEALAND POLICERespondentHearing: 6 March 2020Counsel: E J Forster for the AppellantM M Mitchell for the RespondentJudgment: 12 March 2020JUDGMENT OF DOOGUE JIntroduction[1] This is an application appealing the sentence imposed on the appellant,Mr Keegan, on 16 January 2020 in the Hastings District Court by Judge Couch. TheJudge sentenced Mr Keegan to two years, five months' imprisonment.1[2] This was in relation to seven charges against the same victim, a woman withwhom Mr Keegan had been in a relationship with for several years. There werefour breaches of a protection order,2 two charges of assault with a weapon,3 andone charge of dishonestly using a document.41 Police v Keegan [2020] NZDC 815.2 Domestic Violence Act 1995, ss 19(2)(c), 49(1)(b) and 49(3); maximum penalty of three years'imprisonment.3 Crimes Act 1961, s 202C; maximum penalty of five years' imprisonment.4 Crimes Act, s 228(1)(a); maximum penalty of seven years' imprisonment.Factual overview[3] Following several family harm incidents, a protection order was made inNovember 2018 protecting the victim from Mr Keegan. On the morning of31 May 2019, Mr Keegan went to the victim's home uninvited. He was told to leave,but he refused to do so. Mr Keegan managed to get inside the house nonetheless, andan argument developed. Mr Keegan was told again several times to leave but herefused to go. This was the first breach of the protection order.[4] Mr Keegan picked up a crowbar and struck a coffee table and then followedthe victim around the house, brandishing the crowbar. He smashed a bedroom lightwith it. He swung it at the victim's head and struck her on the arm as she raised it toprotect herself. Mr Keegan only left the premises when a third party called the police.This was the first assault with a weapon.[5] On 13 June 2019 the victim let Mr Keegan borrow her car for a short trip. Herbank card was in the car and he used it without permission to obtain goods or moneyto the value of $170. This led to the dishonestly using a document charge.[6] Mr Keegan returned the vehicle much later than arranged and an argumentstarted. Again, he was told many times to leave but refused. This led the victim togoing elsewhere overnight to escape from Mr Keegan. This was the second breachof the protection order.[7] When the victim returned home the following day Mr Keegan was asleep inher bed. The victim started to get her belongings together in order to leave again. Shetold Mr Keegan her mother was expected to arrive any time soon and that the policewould be called. Mr Keegan then threatened to harm the mother and made as if topunch the victim. This led to two more breaches of the protection order.[8] After that, Mr Keegan went outside where he had an argument with a friendof the victim. The victim came outside to see what was going on and foundMr Keegan with a small axe in his hand. On seeing the victim, Mr Keegan advancedtowards her with the axe raised above his head while yelling abuse at her. This wasthe second assault with a weapon.District Court decision[9] The Judge took the charges of assault with a weapon as the lead charges. Heheld that the gravity of the offending on both occasions was serious, not only for thephysical harm that was done to the victim but also for the psychological harm. Hereferred to the fact that in both cases the weapons used were capable of causing seriousinjury or death. For these two assaults, he took a starting point of 18 months'imprisonment.[10] The Judge considered that the offending was "greatly aggravated by thebreaches of protection order". The aggravation consisted of having no regard for thevictim's rights, or for the court order. Each breach involved unlawful presence in thevictim's home, as Mr Keegan refused to leave when asked to do so.[11] The Judge referred to the fact that it was apparent from the victim impactstatement that the effects of Mr Keegan's actions on the victim had been profound.He applied an uplift of 12 months for the breaches of protection order and for thedishonestly using a document charge.[12] The Judge also found that personal aggravating factors were relevant. Thosefactors included that all of the offending occurred while Mr Keegan was subject tosentences of community work and supervision imposed in November 2018 for violentoffending against the same victim. For that he applied an uplift of three months.[13] He then referred to Mr Keegan's criminal history, citing six previousconvictions for assault, most recently in 2018 where there were convictions forinjuring with intent to injure and threatening to kill the same victim. He applied anuplift of a further three months for that.[14] He then turned to consider any mitigating factors. He referred to thepresentence report which recorded that Mr Keegan "took responsibility for some ofthe events". The Judge, however, said that it did not appear that Mr Keegan had anyreal insight into the seriousness of his offending or that he had any remorse. The onlymitigating factor the Judge found was the guilty pleas. However, these were enteredon the day of trial. As a result, he made some additional allowance in respect of thoseand reduced the sentence by seven months.[15] For the assault with a weapon charges the Judge imposed an end sentence oftwo years and five months' imprisonment, and on each of the other charges heimposed a sentence of nine months' imprisonment. All sentences were to be servedconcurrently.Approach to appeal[16] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion and therefore must only beallowed if the Court is satisfied that there has been (for any reason) an intrinsic errorin the sentence imposed, and that a different sentence should be imposed.5[17] The sentence must be either manifestly excessive or inappropriate if theappellate court is to interfere with the discretion.6[18] The focus is on the final sentence rather than the exact process by which it wasreached, and whether the sentence was in the available range.7 As articulated inR v Peters:8As this Court has indicated on many occasions, the issue whether a sentenceis manifestly excessive or manifestly inadequate or inappropriate must beexamined in terms of the sentence actually passed, rather than the preciseprocess by which it is reached. Thus, if a sentence might be the product of astarting point which is itself manifestly excessive but it is in the resultameliorated by allowances made for mitigating factors so as ultimately to bebrought to a point of acceptability, this Court will be disinclined to intervenethrough concern over any particular component.[19] The appeal raises the following questions:5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.6 Affleck v Police [2017] NZHC 3220 at [9].7 Ripia v R [2011] NZCA 101 at [15].8 R v Peters CA12/03, 14 May 2003 at [13].(a) Was the starting point of 18 months' imprisonment for the lead chargemanifestly excessive?(b) Was the uplift for the remaining charges excessive?(c) Was the uplift for previous convictions excessive?(d) Did all of the above factors result in an end sentence that wasmanifestly excessive?Was the starting point for the lead charge manifestly excessive?Submissions[20] Mr Forster for Mr Keegan submitted that the Judge made an error in hisapproach to sentencing by not applying Nuku v R as a guideline judgment,9 as requiredby Tamihana v R;10 and the offending should have been placed at the low end of Nukuband two. In summary, he submitted that the starting point should have been lower.He also submitted the Judge erred by not setting a global starting point.[21] Ms Mitchell for the respondent submitted there was no obligation for the Judgeto apply Nuku, and even if he did, the starting point of 18 months would have beenavailable.Analysis[22] Nuku is a Court of Appeal guideline judgment for offences of wounding andinjuring with intent under ss 188(2), 189(2), and 191(2) of the Crimes Act 1961, whichestablishes three sentencing bands:11(a) Band one: where there are few aggravating features, the level ofviolence is relatively low and the sentencing judge considers theoffender's culpability to be at a level that might have been betterreflected in a less serious charge, a sentence of less than imprisonmentcan be appropriate.9 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.10 Tamihana v R [2015] NZCA 169.11 Nuku v R, above n 9, at [38].(b) Band two: a starting point of up to three years' imprisonment will beappropriate where three or fewer of the aggravating factors listed at[31] of Taueki are present.(c) Band three: a starting point of two years up to the statutory maximum(either five or seven years, depending on the offence) will applywhere three or more of the aggravating features set out in Taueki arepresent and the combination of those features is particularly serious.The presence of a high level of or prolonged violence is anaggravating factor of such gravity that it will generally require astarting point within band three, even if there are few otheraggravating features.[23] In Tamihana the Court of Appeal confirmed that Nuku can be helpful inrelation to the charge of assault with intent to injure under s 193 of the Crimes Act1961, as it has the same mental element, while noting that Nuku focuses on differentoffences, with higher maximum sentences.12[24] In Hurinui v R the Court of Appeal applied the Nuku methodology to a chargeof assault with a weapon, noting that it carries the same maximum penalty as injuringwith intent under s 189(2).13[25] In Reedy v Police, the High Court also applied Nuku to a charge of assault witha weapon, stating that although it "does not, on its face, cover sentences for assaultwith a weapon", it has been applied in relation to this charge on a number of occasions,noting it has the same maximum penalty as s 189(2).14 The defendant faced variouscharges, and the lead charge was assault with a weapon. Following an incident oftheft, the defendant brandished a meat cleaver and advanced slowly on the victims.There were two aggravating factors present: the offence was in facilitation of anothercrime; and the type of weapon used.15 The Court placed it at the low end of band two,and imposed a starting point of 13 months' imprisonment.16[26] Given the above discussion, while it was open to the Judge to apply Nuku, hewas not obliged to, and therefore there was no error in his approach. If Nuku was12 Tamihana v R, above n 10, at [16].13 Hurinui v R [2014] NZCA 290 at [26]-[27].14 Reedy v Police [2019] NZHC 2435 at [14].15 At [17]-[18].16 At [26].applied, the Judge's starting point of 18 months would be in the middle of band two,which in my view was appropriate.[27] Several of the aggravating factors in R v Taueki were present in the offending,justifying its placement in band two of Nuku.17 Although there are more than threeaggravating factors, which would place it in band three, I do not consider thecombination of them is serious enough to justify this. Although there was no extremephysical violence, I note both incidents were prolonged, involving Mr Keeganrefusing to leave the victim's home. Although the victim did not suffer seriousphysical injuries, the victim impact statement records that she has suffered seriouspsychological harm as a result of the offending. Both incidents involved the use ofserious weapons (a crowbar and a small axe). The first incident involved an attemptedattack to the head (Mr Keegan swung a crowbar at the victim's head, and struck herarm as she held it up to protect herself). The first incident involved a home invasion,as Mr Keegan went to the victim's address uninvited, gained access to the house bymanipulating a bolt on a door, and refused to leave. The second incident occurredoutside at the victim's address, after Mr Keegan had entered the locked house afterrefusing to leave for an extended period, forcing the victim to leave her home in orderto get away. Given the number of aggravating factors, the present case is more seriousthan Reedy, and the starting point of 18 months' imprisonment was justified.[28] Although the option of setting a global starting point for all of the charges wasavailable to the Judge, it was also open to him to set the starting point with referenceto the lead charges and then apply an uplift for the remaining charges, as he did. Therewas no error in the approach taken by the Judge.Was the uplift for the remaining charges excessive?Submissions[29] Mr Forster submitted the uplift of 12 months for breaches of the protectionorder was excessive.17 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 at [31].[30] Ms Mitchell submitted that the serious nature of the breaches of the protectionorder, together with the use of the victim's eftpos card, justified the uplift of 12months.Analysis[31] Mr Forster submitted the case of Wratt v Police showed an uplift of 12 monthswas not justified.18 In Wratt, the defendant breached a protection order twice, throughcontrolling and manipulative behaviour (including verbally abusing the victim,interrogating her about her personal life, monitoring her social media, and sendingher over 100 text messages within approximately one month). The High Court upheldthe District Court's starting point of 12 months' imprisonment, noting the offendingwas more serious than cases where starting points of between 12 and 15 months'imprisonment were adopted.19[32] Ms Mitchell referred me to Cull J's recent review of a number of sentencingdecisions for breach of protection order.20 I find the cases of Crean v Police,21 andRobinson v Police,22 to be more useful than Wratt when assessing the currentoffending, given their similarity to the facts of the current offending.[33] Crean involved two breaches of a protection order.23 In the first incident, thedefendant was at the victim's home, and they were consuming alcohol together. Theybegan to argue, the defendant refused to leave when asked repeatedly, and the victimleft the house to call the police. In the second incident, the defendant was againconsuming alcohol at the victim's home, and refused to leave when asked. The victimagain left the house, with the defendant pursuing her. She locked herself in a publictoilet and phoned the police. The defendant had two recent convictions for breachingprotection orders, which the Court held was "integral to the assessment of the gravity18 Wratt v Police [2018] NZHC 2477.19 At [29].20 Thompson v Police [2020] NZHC 20 at [20].21 Crean v Police [2015] NZHC 3203.22 Robinson v Police [2019] NZHC 1412.23 Crean v Police, above n 21.of the index offending."24 The Court held a starting point of 15 months' imprisonmentwas appropriate.25[34] Robinson involved one charge of breaching a protection order.26 Thedefendant was at the victim's home when he began verbally abusing a friend of thevictim. The victim asked him to leave, but he refused. The victim called the police.The District Court adopted a starting point of six months' imprisonment, uplifted bya further six months for previous breaches of the protection order and the continuedpattern of offending.27 The High Court considered this "effective twelve-monthstarting point" orthodox, and noted a starting point of 15 months was open to theJudge.28[35] The present case is similar to both of these cases, as Mr Keegan was presentat the victim's address and refused to leave. It is more serious than Crean, asMr Keegan was not originally invited into the victim's address, and forced his wayinto the house. It is also more serious than Robinson, as it involves two breaches.Although I note Mr Keegan does not have any prior convictions for breach of aprotection order, I consider the present case overall is more serious than both cases,especially given the impact it appears to have had on the victim. The home invasionelement of the offending is especially serious, as Mr Keegan's actions have causedthe loss of the victim's sense of security in her own home, a place she is entitled tofeel safe. A standalone starting point of at least 15 months' imprisonment for thebreaches of the protection order would therefore have been available.[36] The seriousness of the breaches of the protection order, coupled with thedishonestly using a document charge, mean the uplift of 12 months' imprisonmentwas available to the Judge.24 At [16].25 At [19].26 Robinson v Police, above n 22.27 At [5].28 At [22].Was the uplift for previous convictions excessive?Submissions[37] Mr Forster submitted the uplifts for previous convictions, and the fact theoffending occurred while Mr Keegan was subject to a sentence, wereexcessive, and risked "double-counting".[38] Ms Mitchell submitted there was no error by the Judge in imposing the uplifts.Analysis[39] When sentencing an offender, the Court is required by the Sentencing Act 2002to take into account whether the offence was committed while the offenderwas on bail or subject to a sentence,29 as well as the offender's previousconvictions.30 The Court of Appeal has held that imposing an uplift under s9(1)(c) does not amount to double-counting, as it reflects the fact that suchoffending "displays a disregard for Court processes."31[40] The offending occurred while Mr Keegan was subject to a sentence ofcommunity work and supervision, imposed on 1 November 2018, for violentoffending against the victim (injuring with intent to injure or recklessdisregard, and threatening to kill or cause grievous bodily harm). In additionto those convictions, Mr Keegan has various convictions for violent offendingprior to the relationship. He also has a conviction for dishonest use of a bankcard. An uplift of three months for each of these factors, totalling six months,was appropriate.Was the end sentence manifestly excessive?[41] In light of the foregoing discussion, the end sentence of two years, fivemonths' imprisonment is not manifestly excessive.29 Sentencing Act 2002, s 9(1)(c).30 Sentencing Act 2002, s 9(1)(j).31 Clunie v R [2013] NZCA 110 at [22].Result[42] The appeal is dismissed.Doogue JSolicitors:Crown Solicitor, Napier