VUJCICH v NEW ZEALAND POLICE [2019] NZHC 2482

VUJCICH v NEW ZEALAND POLICE [2019] NZHC 2482 [30 September 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-406[2019] NZHC 2482BETWEEN ANTON IVAN VUJCICHAppellantAND NEW ZEALAND POLICERespondentHearing: 30 September 2019Appearances: T Beach for AppellantK Guilford for RespondentJudgment: 30 September 2019(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] Mr Vujcich pleaded guilty in the District Court to two charges of breaching aprotection order.1 On 4 September 2019 Judge Sainsbury sentenced him to seven anda half months home detention.2[2] Mr Vujcich appeals against sentence on the basis that the end sentence wasmanifestly excessive. He says this occurred because the Judge adopted a starting pointon one of the charges that was too high and then added an uplift on the other chargethat was excessive. Mr Vujcich also contends the Judge failed to give him due creditfor taking rehabilitative steps prior to sentencing.The facts[3] The facts were contained in a summary of facts produced by the police in theDistrict Court. I take Mr Vujcich to have agreed to the contents of the summary beforehe entered his guilty pleas. The summary records that a final protection order wasissued against Mr Vujcich in the Waitakere Family Court on 14 December 2017. Theorder extended protection to Mr Vujcich's former partner and their two children.[4] The first charge was laid as a result of an incident that occurred on 28 June2018. The incident occurred against a backdrop of proceedings in the Family Courtin which Mr Vujcich was endeavouring to gain increased contact with his children. Alawyer had been appointed to represent the interests of the children in the Family Courtproceedings.[5] On 28 June 2018 Mr Vujcich sent an email to both the lawyer for the childrenand his former partner's solicitor. The email was accompanied by a digital attachmentcontaining a photograph of the naked torso of his former partner. The email containedthe following statements:I will now start sending all the naked photos and sex emails from your clientto me and put them in newspapers.You have 24 hours to make [the victim of the offending] respond.1 Domestic Violence Act 1995, ss 19(1)(d) and (2)(e).2 Police v Vujcich [2019] NZDC 17444.You think I'm joking? Find attached photo from [the victim] to me. You guyshave been asked to stop the roadblocks from the psychopath, you've now got24 hours to do it.[6] When the police investigated the complaint that was made as a result of thisincident, they searched electronic devices found in Mr Vujcich's home. This led tothe discovery that Mr Vujcich had established an Instagram profile page under a namehaving no association with his own. Instagram is a social networking service thatpermits those who subscribe to the service to post photographs and video clips on thesite. Mr Vujcich then began following his former partner's Instagram profile. On 15July 2018 Mr Vujcich sent her an Instagram message reading as follows:I like your Instagram posts a lot. Plus your [sic] really hot. My name isMark I'm a fireman in Auckland at Takapuna. We should go for a meal ordate sometime my number is [027] if you want to get to know me.[7] Mr Vujcich subsequently sent several additional Instagram messages to hisformer partner maintaining the deception that he was a fireman named Mark. Thesummary does not record whether Mr Vujcich's former partner read or acknowledgedthe messages, or whether she ever became aware they had been posted by Mr Vujcich.The Judge's decision[8] The Judge took a starting point of 18 months imprisonment on the chargerelating to the email Mr Vujcich had sent to the two lawyers. He then added an upliftof six months to reflect the second charge relating to the posts to the Instagramaccount. From the resulting starting point of two years imprisonment, the Judge gaveMr Vujcich four months credit to reflect previous good character. This reduction wasmade as a result of numerous references Mr Vujcich had provided at sentencing frompersons in the community who considered him to be a person of otherwise impeccablecharacter.[9] The Judge then allowed a discount of five months, or 25 per cent, to reflectguilty pleas. This resulted in an end sentence of 15 months imprisonment. The Judgeconverted this to a sentence of seven and a half months home detention.Was the starting point too high?[10] In setting the starting point the Judge noted the authorities referred to him byMr Beach on Mr Vujcich's behalf. In particular, Mr Beach referred to Prince v Policein which Cooke J reviewed recent sentences imposed on charges of breaching aprotection order.3 Cooke J considered that in cases involving non-violent offendingwhere the offender has a history of breaching protection orders, the starting point willgenerally begin from around four months imprisonment. It will then increasedepending on the circumstances of the offending and previous convictions.[11] The Judge noted, however, that other sentencing decisions were only of limitedweight because of the unusual nature of Mr Vujcich's offending. He thereforeconsidered the starting point should be governed by the culpability of the offending asassessed having reference to aggravating factors. The first factor identified by theJudge was that Mr Vujcich had sent an intimate image to third parties. He consideredthis to be serious because of the ease with which digital media can be transferred. TheJudge also noted that, in cases where charges have been laid under the Harmful DigitalCommunications Act 2015, starting points of imprisonment have been imposed.4[12] The Judge rejected a submission for Mr Vujcich that the culpability ofoffending was reduced by the fact that the email was only sent to two parties. Heconsidered the humiliation for the complainant lay in the fact that persons who wereeffectively strangers had been sent the photographs. In addition, the Judge consideredthe content of the email to be threatening in nature. He described this in the followingterms:5[17] Whether there are any other photos, whether there are any other textsis really beside the point. It is a direct threat, effectively saying: "I'm goingto do this. I'm going to humiliate you. You can live with the horror ofknowing that this could be done by me at any time and you can't stop me."That is serious in my view. That is akin to the offending of sending I'm [sic]intimate images, where the Courts have taken a very strong view against it,even for a first offence.3 Prince v Police [2019] NZHC 1742.4 Police v Kelly [2017] NZDC 12912; Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147;Police v Tamihana [2016] NZDC 6749.5 Police v Vujcich, above n 2.[13] The Judge also considered the offending was rendered more serious by the factthat it amounted to an attempt by Mr Vujcich to influence the proceedings in theFamily Court. He considered it was designed to place pressure on the two lawyers tocomply with Mr Vujcich's demands and that Mr Vujcich was effectively using thethreats and the photographic image to obtain leverage over those parties. The Judgeconsidered that offending such as this struck at the heart of the justice system, and thatlawyers representing parties in the Family Court need to be able to undertake theirdifficult roles free from the fear of this type of inappropriate attack.[14] Finally, the Judge noted that protection orders are not made lightly and aremade for good reason. The seriousness of the offending amounted to deliberateattempts to bypass or overcome orders made for the protection of Mr Vujcich's formerpartner. The Judge acknowledged the offending did not involve actual violence. Heconsidered that it was nevertheless calculated offending designed to humiliate andterrify his former partner, and to undermine the Family Court system. These factorsled the Judge to assess the starting point of 18 months imprisonment.[15] Mr Beach contends the starting point was manifestly excessive when thestarting points imposed in other cases are considered. Care needs to be taken in thiscontext because the maximum penalty for this offence was increased on 25 September2013 from two years to three years imprisonment. It is not entirely clear from someof the other earlier cases whether the charges were laid when the earlier maximumsentence was in place. Nevertheless, Mr Beach has referred me to several casesinvolving non-violent conduct that breached the terms of a protection order.6 Hesubmits that the starting point here should have been well below that selected by theJudge.[16] In Morris-Stewart v New Zealand Police, Wylie J noted that there is no tariffor guideline case for breaching a protection order.7 He observed that the Court ofAppeal has nevertheless stated that the courts should uphold the integrity of protectionorders and respond sternly to those who flout their force and effect. This is because6 R v Nathan CA209/06, 29 November 2006; Mitchell v R [2015] NZCA 442, (2015) 30 FRNZ 534;Bartlett v Police [2016] NZHC 850; Irvine v Police [2017] NZHC 3085; Turner v Police [2017]NZHC 1113; Robinson v Police [2019] NZHC 1412; G v Police [2019] NZHC 411.7 Morris-Stewart v Police [2016] NZHC 1030.such orders are intended to ensure that the recipient of the protection order is secureand inviolate. For that reason repeated breaches will result in a condign sentencingresponse. Where there has been repeat offending over a brief period of time, a shortterm of imprisonment is the proper response.[17] I consider that all of the aggravating factors that the Judge identified wereproperly taken into account. Mr Beach challenges in particular the fact that the Judgeappeared to have regarded the offending as amounting to a form of blackmail and thatthe Judge gave undue weight to his view that Mr Vujcich could well have beenprosecuted for other and more serious offences.[18] I do not accept that this is the case because the Judge expressly said that he wasnot sentencing Mr Vujcich on the basis that he had committed the other offences.Nevertheless, I consider the fact that the offending was designed to provide Mr Vujcichwith a favourable outcome in Family Court proceedings to be a relevant factor.Furthermore, the fact that Mr Vujcich was prepared to send a compromisingphotograph of his partner to professionals who were working in the Family Courtsystem is clearly, in my view, an aggravating factor. There is also the added featurethat the email contained an express threat to send photographs, including photographsof his partner involved in sexual acts, to newspapers if his demands were not met. Itherefore consider that the offending had several significantly aggravating factors andthat a starting point of four to six months imprisonment would not adequately reflectthe culpability of these.[19] In Irvine v Police, the appellant had telephoned his former partner on 23occasions over a two day period.8 He had then gone to her address one day later andbanged on the lounge window of the address before leaving the property. The conductoccurred within days of a protection order having been made in favour of theappellant's former partner. On appeal, Dunningham J considered that a starting pointof ten months imprisonment, although at the higher end of the available range, wasnevertheless not outside it.8 Irvine v Police, above n 6.[20] In Morris-Stewart, a starting point of 12 months imprisonment was selected ona single charge of breaching a protection order and this was upheld on appeal to thisCourt. In that case the appellant had sent his former partner numerous text messagesover a period of a day. He had a history of family violence charges against the victimand also a history of breaching protection orders. Furthermore, the content of the textmessages was threatening and abusive.[21] In Mataiti v Police, the appellant had pleaded guilty to two charges ofbreaching a protection order against his former partner.9 The charges reflected twoincidents that had occurred several months apart. On each occasion the appellant hadbecome verbally abusive towards the victim and had refused to leave her propertywhen asked. He also had a series of relevant previous convictions including threeconvictions for breaching a protection order. On appeal, Duffy J considered that astarting point of 12 months imprisonment on each charge was too high and thatcumulative starting points of eight months for each of the two charges was appropriate.[22] Even allowing for the serious nature of the present offending, I consider that astarting point of 18 months imprisonment on the first charge was too high particularlygiven the fact that the offending involved a single incident and Mr Vujcich has noprevious history of breaching protection orders or indeed of breaching any other kindof orders or sentences imposed by the Court. I do not consider a starting point of morethan 12 months imprisonment could be justified.Uplift[23] I accept that the uplift involving the establishment of the Instagram accountand the posting of messages on that account warranted a discrete uplift. There are,however, several factors about that offending that lead me to conclude an uplift of sixmonths was manifestly excessive.[24] First, there is no suggestion in the summary that the complainant either readthe messages posted by Mr Vujcich, or that she connected him with them. There istherefore no element of harassment as would ordinarily be the case in a charge of this9 Mataiti v Police [2014] NZHC 1675.type. Furthermore, although this offending occurred after the earlier incident, it didnot occur whilst Mr Vujcich was on bail for the earlier offending. He was arrested andcharged with both offences at the same time.[25] Having regard to those factors I do not consider an uplift of more than threemonths was justified.[26] This means I consider a starting point of 15 months imprisonment wasappropriate before taking into account mitigating factors. Allowing a proportionateadjustment of three months to reflect Mr Vujcich's previous good character, a sentenceof 12 months imprisonment results before taking into account guilty pleas.[27] I do not consider any additional discount was warranted to reflect the fact thatMr Vujcich had completed a "Stopping Violence" course before being sentenced. Iconsider the discount to reflect previous good character adequately reflects anyrecognition to be taken of this fact.[28] This leads to the deduction of three months, or 25 per cent, to reflect guiltypleas, producing an end sentence of nine months imprisonment. There is no challengeby the respondent to the Judge's conclusion that a sentence of home detention wasappropriate in the circumstances of the present case. Taking the sentence of ninemonths imprisonment, I apply the usual conversion factor of 50 per cent, therebyresulting in an end sentence of four and a half months home detention.Result[29] The appeal against sentence is accordingly allowed. The sentence of seven anda half months home detention is quashed. In its place I impose a sentence of four anda half months home detention on the same conditions as the existing sentence.Lang JSolicitors:Crown Solicitor, AucklandCounsel:T Beach, Barrister, Auckland