CUNNARD v POLICE [2019] NZHC 2944

CUNNARD v POLICE [2019] NZHC 2944 [12 November 2019]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2019-476-000022[2019] NZHC 2944BETWEEN BLAKE PAUL CUNNARDAppellantAND NEW ZEALAND POLICERespondentHearing: 29 October 2019Appearances: H V Bennett for the AppellantK C Beazley for the RespondentJudgment: 12 November 2019JUDGMENT OF NATION JIntroduction[1] On 7 August 2019, Mr Cunnard was sentenced in the District Court on chargesof impedes breathing, assault on person in family relationship and wilful damage.Judge Farish sentenced Mr Cunnard to five months' home detention with specialconditions to attend a non-violence programme, probation approved treatment inparticular drug and alcohol treatment and non-association with the victim.[2] Mr Cunnard appeals that sentence.Facts[3] Mr Cunnard was aged 32. In January 2019, he had been in a relationship withthe victim for some months. She had two young children.[4] The victim was at Mr Cunnard's address. At 11.00 pm on 5 January 2019, shewoke to him standing over her, holding her phone and yelling at her. He placed her ina headlock, causing her to lose consciousness. As she lay unconscious, he punchedher several times in the head. When she tried to call the Police, Mr Cunnard pushedher hard, resulting in her falling backwards, hitting her head and elbow. He snatchedher phone from her and threw it on the floor, smashing it. The victim was taken byambulance to Timaru Hospital. She had bruises and swelling to her face and arms.[5] Mr Cunnard was charged with impeding breathing, assault on person in afamily relationship and wilful damage.[6] Mr Cunnard sought and accepted a sentence indication by Judge Roberts on 1April 2019 in the Timaru District Court. There, the Judge noted Mr Cunnard's lowlevel of ability to comply with a community-based sentence. His Honour said theoffending was committed against a backdrop where Mr Cunnard was alreadysentenced for other offending and he had not completed or engaged with that sentence.[7] The Judge adopted a starting point of eight months' imprisonment. He gave anuplift of two months for the aggravating features of offending whilst subject tosentence. From that, he gave a discount of two months for an early guilty plea.[8] His Honour indicated that the end sentence could be converted to either homedetention or community detention (coupled with supervision and community work),depending on the recommendations set out in the pre-sentence report.[9] Before sentencing, further charges were laid against Mr Cunnard in relation tothe same complainant, relating to events arising on 20 April 2019. They were twocharges of strangulation and assault on a person in family relationship. Mr Cunnardentered not guilty pleas and was awaiting a Judge-alone trial on the charges.[10] On 5 August 2019, Mr Cunnard appeared in the Timaru District Court in frontof Judge Farish on an opposed bail application following a breach of bail. Her Honourissued a Minute in relation to the events in Court. That minute explained that:(a) The victim had been seeking to have the charges withdrawn against MrCunnard for some time, claiming she had made a false complaint (inrelation to the further charges).(b) Mr Cunnard previously had his bail varied by Judge Kellar to allow himto reside at his parents' address in Timaru on the understanding thecomplainant was residing in Kaikoura.(c) In the interim, the victim returned to Timaru to resume her relationshipwith Mr Cunnard and they were seen together at a local supermarket withthe victim's two young children. This gave rise to the breach of bail forwhich Mr Cunnard was appearing in Court.(d) Judge Farish was prepared to bail Mr Cunnard if the victim was going toreturn to Kaikoura, but the victim informed Her Honour that she was nowliving in Waimate. She asserted her view to Her Honour that she had madea false complaint and wanted to be with Mr Cunnard.[11] Her Honour remanded Mr Cunnard in custody to 7 August 2019 to allow Policetime to consider the matter further, given the victim's stance in relation to theupcoming Judge-alone trial on the further charges.[12] Upon remanding Mr Cunnard in custody, the Judge recorded that the victimrushed from the public area into the dock and would not release Mr Cunnard. Thevictim was told several times to release him, but she would not. Mr Cunnard wascrying and the children of the victim were in their pram witnessing the events. TheJudge noted that the concerning issue was the welfare of the children in the situation.District Court decision[13] At the sentencing hearing on 7 August 2019, Judge Farish explained that thevictim and Mr Cunnard were in an unhealthy relationship. She said that the sentencewould give them some time apart to de-escalate the intensity of their relationship andgive Mr Cunnard the ability to deal with some of his problems. She explained it alsogave the victim time to think. The Judge was concerned for the wellbeing of thechildren and the real harm caused by growing up in a home with domestic violence.[14] On that basis, the Judge advised that she would be imposing a special conditionof non-association between Mr Cunnard and the victim.[15] The Judge sentenced Mr Cunnard to five months' home detention with thespecial condition of non-association with the victim (without prior written approvalfrom a probation officer), and other special conditions of a non-violence programmeand a treatment programme for a further six months.Principles on appeal[16] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied there has been anerror in the imposition of the sentence and that a different sentence should beimposed.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowerCourt's decision, "[an appellate] court 'will not intervene where the sentence iswithin the range that can properly be justified by accepted sentencing principles'".2 Itis only appropriate for this Court to intervene and substitute its own views if thesentence being appealed is "manifestly excessive" and not justified by the relevantsentencing principles.3 The focus of an appellate court must "primarily be on theappropriateness of the end sentence, not the means by which that end sentence hasbeen reached."4[17] The ability to impose conditions on sentences of home detention is provided ins 80D Sentencing Act 2002.5 Those conditions may be imposed where:6(a) there is a significant risk of further offending by the offender; and(b) standard conditions alone would not adequately reduce the risk; and(c) the imposition of special conditions would reduce the likelihood offurther offending by the offender through the rehabilitation andreintegration of the offender.1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].3 Ripia v R [2011] NZCA 101 at [15].4 Skipper v R [2011] NZCA 250 at [28].5 Sentencing Act 2002, s 80D.6 Sentencing Act 2002, s 80D(2).[18] The special conditions include:7(a) any conditions that the court thinks fit relating to the offender's financesor earnings:(b) conditions requiring the offender to take prescription medication:(c) conditions relating to a programme:(ca) conditions prohibiting the offender from doing 1 or more of thefollowing:(i) using (as defined in section 4(1)) a controlled drug:(ii) using a psychoactive substance:(iii) consuming alcohol:(d) a condition requiring the offender to comply with the requirements ofjudicial monitoring under subpart 2B as directed by a probation officeror the sentencing Judge:(e) any other conditions that the court thinks fit to reduce the likelihood offurther offending by the offender.[19] The condition must be rationally connected to the purposes set out in subs (2).In Hughes v R, a condition that the offender not associate with her husband during thehome detention sentence was quashed, because the need for it had not been articulatedby the sentencing Judge and was not required to reduce the risk of reoffending.8[20] R v Riri, a case under s 80D, also provides guidance for this Court. There, theCourt said that what can be regarded as an "unusual condition" could be imposedbecause there was a "significant risk of re-offending but for this special condition".9Riri stresses the importance for the sentencing court to explicitly link the impositionof conditions to a general aim of imposing such a condition. In the absence of explicitreasoning from the sentencing court as to why a condition is being imposed andspecifically linking those reasons to the relevant aims, appellate courts will havegreater difficulty rationalising the imposition of such conditions. Indeed, where thesentencing court fails to give reasons for special conditions, the appellate court cannotsatisfy itself that the sentencing court directed its mind to the question.7 Sentencing Act 2002, s 80D(4).8 Hughes v R [2015] NZHC 21819 R v Riri [2008] NZCA 441 at [17]SubmissionsAppellant's submissions[21] Mr Cunnard submits that Judge Farish did not consider the wishes of the victimin imposing the special condition that he not associate with or contact the victim forsix months. The victim had addressed the Judge and said she wanted to continue herrelationship with Mr Cunnard. She had similarly told police that the complaint wasfalse and that she had advised the Police of this, but they did not believe her.[22] Mr Cunnard says that s 17 New Zealand Bill of Rights 1990 applies in that anon-association condition breaches his right of freedom of association.[23] Counsel submits that the appropriate response to the victim's expressed viewsat the sentencing exercise was to not impose a restriction upon the defendant'sassociation with the victim. Counsel submits an alternative condition that wouldproperly observe the right of both Mr Cunnard and the victim to associate with eachother, especially in light of the express intention that the relationship continue, wouldhave been that Mr Cunnard not offer violence to the victim.[24] Before me, counsel advised that the Police were no longer proceeding with thefurther charges Mr Cunnard faced when he was being sentenced.Analysis[25] In relation to Mr Cunnard's argument that his right to freedom of associationis being breached, I note that rights under the New Zealand Bill of Rights Act aresubject to such limits as may be demonstrably justified in a free and democraticsociety.[26] I broadly agree with submissions for the respondent that, here, there was ajustified limitation rationally connected to the purposes set out in s 80D(2). Therespondent submits that, under s 80D(2), there was an obvious risk of reoffendingagainst the victim. At the time of sentencing, Mr Cunnard was awaiting trial on furtherand highly similar charges against the same victim.[27] Little weight could be attached to the victim's statement that she had lied tothe Police. Mr Cunnard had acknowledged the earlier offending with his guilty plea.[28] I find that standard conditions alone would not adequately reduce the risk.Standard conditions cannot address the principal risks associated with a relationshipcharacterised by domestic violence. Mr Cunnard had already breached the non-association condition of his bail by associating with the victim. Standard conditionswould be unable to reduce the risk of further similar offending.[29] The victim did not want a non-association order imposed. The views of thevictim, while relevant, were not determinative. The Court in Sterjov v Policesummarised the relevance of victims' views in domestic violence cases as follows:10It is regrettably common in domestic violence cases for victims to ask forleniency in respect of their abusers. It is well-established that this desire doesnot diminish the Courts' responsibility to protect the public interest by holdingoffenders to account for domestic violence, particularly as a victim'sreluctance is often a result of mental conditioning resulting from the veryabuse to which they have been exposed.[30] The non-association condition would reduce the likelihood of further offendingby Mr Cunnard and assist in rehabilitation. As Judge Farish found, Mr Cunnardneeded time apart from the victim in order to address the underlying issues thatmanifest themselves as violence against a family member. It would also allow thevictim time to address her issues and focus on the care of her children. Continuedcontact (or uncontrolled contact) with the victim would prevent achievement of thosepurposes of sentencing. The Judge explicitly gave this as the reason for the sentence.[31] I find the non-association conditions were and are rationally connected toreducing the risk of offending. As I have explained above, in the present case, therewas justification for limiting Mr Cunnard's right to free association in thecircumstances. The Judge was not saying that the victim must have no relationshipwith Mr Cunnard at any time in the future. She was permitted to have contact withhim but only if approved by Corrections. There was thus the opportunity for them tohave the potential to meet and talk about their relationship and the risks that would10 Sterjov v Police [2015] NZHC 3103 at [40].exist for both of them, and for them and others to assess how those risks might havebeen reduced through Mr Cunnard's involvement in a non-violence programme andtreatment programme.Conclusion[32] I do not find the sentence with the conditions imposed to be manifestlyexcessive.[33] The appeal is dismissed.Solicitors:Gresson Dorman & Co., TimaruK C Beazley, Barrister, Timaru.