TONGE v NEW ZEALAND POLICE [2021] NZHC 1508

TONGE v NEW ZEALAND POLICE [2021] NZHC 1508 [23 June 2021]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2021-419-000034[2021] NZHC 1508BETWEEN ASHLEY TONGEAppellantAND NEW ZEALAND POLICERespondentHearing: 22 June 2021Appearances: J Gurnick for AppellantJ Williams for RespondentJudgment: 23 June 2021JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by me on 23 June 2021 at 3.30 pm.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, Hamilton[1] Mr Tonge pleaded guilty in the District Court to a charge of breaching aprotection order granted in favour of his partner. On 21 May 2021 Judge R G Marshallsentenced Mr Tonge to six months imprisonment.1[2] Mr Tonge appeals against sentence on the basis that the Judge adopted astarting point that was too high, and this resulted in an end sentence that wasmanifestly excessive. He also contends the Judge ought to have sentenced him to anelectronically monitored sentence rather than a sentence of imprisonment.The facts[3] Mr Tonge entered his guilty plea on the basis of an agreed summary of facts.This records that the protection order obtained by Mr Tonge's partner in the DistrictCourt was served on Mr Tonge on 27 January 2017. The order became final on 28April 2017.[4] The parties obviously continued to associate with each other over the next fouryears. The summary records that on 4 January 2021 they separated following a familyharm incident to which the police were called. Seven days later, on 11 January 2021,Mr Tonge sent a text message to his partner asking her to come home. She respondedthat he was not to contact her any more and was to leave her alone.[5] Over the next few days Mr Tonge continued to send text messages to his partnerdespite the fact that she repeatedly told him to stop. These included several textmessages on 16 January 2021 in which Mr Tonge made insulting comments about hispartner's promiscuity, and threatened to spread harmful information about her by wayof revenge. In addition to the text messages, Mr Tonge called his partner numeroustimes during this period after being told not to contact her.1 New Zealand Police v Tonge [2021] NZDC 9844.The Judge's decision[6] After setting out the background and describing Mr Tonge's previousconvictions the Judge selected a starting point of six months imprisonment for thefollowing reasons:2[7] The Court awards orders in favour of protected persons by way of aprotection order to protect them. There is not much point if the Court makesorders and cannot follow them up.[8] Here, in my view Mr Tonge you can expect sentences of imprisonmentif you breach protection orders. That is the long and the short of it and that iswhat is going to happen in my view today.[9] You need to be deterred from your pattern of drinking andpsychologically abusing people that you have been in a relationship with. Thevictim impact statement shows that your offending does have an effect on thevictim and a marked one.[10] On that basis I take a starting point of six months' imprisonment.[7] The Judge applied an uplift of two months to reflect Mr Tonge's relevantprevious convictions for similar offending. He then applied a discount of two months,or 25 per cent, to reflect Mr Tonge's guilty plea. This resulted in the end sentence ofsix months imprisonment.[8] The Judge declined to convert this to an electronically monitored sentencebecause he considered such a sentence would not adequately meet the purposes andprinciples of sentencing. He also gave Mr Tonge a "clear warning" that he couldexpect sentences of imprisonment in the future if he continued to breach the terms ofthe protection order.Was the starting point too high?[9] On Mr Tonge's behalf Mr Gurnick submits that, if Mr Tonge had presented asa first offender, the Judge would not have adopted a sentence of imprisonment whenfixing the starting point. Instead the Judge would have selected a sentence ofsupervision, perhaps accompanied by a sentence of community work. I accept thissubmission.2 New Zealand Police v Tonge, above n 1.[10] Mr Tonge did not, however, present as a first offender. He and his partner havebeen in a relationship for approximately five years. As the pre-sentence report makesclear, the relationship is characterised by the excessive consumption of alcohol byboth. Mr Tonge's offending against his partner began on 8 May 2016, when anincident occurred that led to him being charged with threatening to kill his partner,assaulting her with intent to injure and assaulting her with a blunt instrument. Thisresulted in him receiving a sentence of two months community detention, nine monthssupervision and 100 hours community work.[11] On 11 December 2017 he received a sentence of six months imprisonment ontwo charges of breaching the protection order granted in favour of his partner, onecharge of assaulting his partner and two charges of breaching the sentence ofsupervision imposed on the earlier charges. Following his release from prison,Mr Tonge was convicted of four further charges of breaching his prison releaseconditions.[12] Mr Gurnick contends the Judge ought to have adopted a lower starting pointthan six months imprisonment for the present charges because that equalled thesentence Mr Tonge received in 2017. He points out that the sentence Mr Tongereceived in 2017 reflected his culpability on two charges of breaching the protectionorder in favour of his partner as well as charges of assault and breaching prison releaseconditions. Mr Gurnick submits the present offending related to a single charge ofbreaching the protection order and therefore warranted a much lesser starting point. Ido not accept this submission because I have no knowledge of the structure of thesentence imposed in 2017. The Judge who sentenced Mr Tonge in 2017 may wellhave adopted a starting point considerably greater than six months imprisonment.[13] The issue therefore reduces to whether, taking into account Mr Tonge'sprevious convictions, a starting point of eight months imprisonment was too high.[14] Mr Gurnick submits that, if a starting point of six months imprisonment wasappropriate, it was also sufficient to reflect both the overall gravity of the presentoffending as well as Mr Tonge's previous convictions for similar offending. Hecontends no additional uplift was required to reflect the latter factor.[15] Counsel have referred to several authorities dealing with the starting point tobe imposed for offending of this type. I have found the most helpful to be that ofTuwairua v Police, in which the nature of the offending appears to have been broadlysimilar to that in the present case.3 However, the appellant in that case had 13 previousconvictions for similar offending. The sentencing Judge in Tuwairua had adopted astarting point of six months imprisonment and increased it to 12 months to reflect theoffender's previous convictions. On appeal, Dunningham J held4 that the starting pointof six months imprisonment was lenient and generous to the appellant, who had sentthe victim a high volume of abusive messages over a period of two days despite herconsistent responses that she did not want to communicate with him. Dunningham Jpointed out that the appellant was well aware his behaviour was unwanted andunlawful, and this was demonstrated by his previous convictions for breaching thesame protection order.5[16] The appellant in Tuwairua obviously had a larger number of previousconvictions for breaching a protection order than does Mr Tonge. However, this factoris reflected in the selection of an overall starting point of 12 months imprisonment inTuwairua, whereas the end starting point in the present case was four months less.[17] When viewed against the approach taken in Tuwairua I do not consider the endstarting point of eight months imprisonment in the present case was outside theavailable range.Should the Judge have imposed a different type of sentence?[18] Mr Gurnick submits that the Judge ought to have imposed a sentence thataddressed the root causes of Mr Tonge's offending rather than a sentence ofimprisonment. He submits the Judge ought to have imposed a sentence of communitydetention coupled with a sentence of intensive supervision with judicial monitoring.This would have enabled Mr Tonge to be subject to the type of supervision he needswhilst enabling him to continue with his business. This is apparently financiallysuccessful and supports three employees. Alternatively, Mr Gurnick submits a3 Tuwairua v Police [2020] NZHC 3376.4 At [21].5 At [21].sentence of home detention to be served at Mr Tonge's business address was a viablealternative.[19] The difficulty with this submission lies in the fact that Mr Tonge has nowamassed an unenviable record of non-compliance with sentences and orders imposedby the Court. These comprise not only three convictions for breaching the protectionorder but also four convictions for breaching a sentence of supervision and fourconvictions for breaching his prison release conditions. Furthermore, it is plain thatMr Tonge has a major problem with alcohol abuse that he has done nothing to address.The Court can therefore have no confidence that he would abide by any electronicallymonitored sentence the Court might impose or, for that matter, a sentence ofsupervision. Finally, there is nothing in the pre-sentence report to suggest Mr Tongenow has insight into his offending or that he is motivated to address the factors thatunderpin it. Until that occurs, and the desire for rehabilitation is driven by him, thereis little point in the Court imposing a therapeutic sentence.[20] The Court of Appeal has said that repetitive offending of this type over a briefperiod should attract a short sentence of imprisonment.6 This Court has adopted thesame approach.7 It follows that the Judge was entitled to impose a sentence ofimprisonment and did not err in principle by doing so.Result[21] The appeal against sentence is dismissed.Lang J6 R v Nathan CA209/06, 29 November 2006 at [25].7 See for example Morris-Stewart v Police [2016] NZHC 1030 at [15].