PRINCE v NEW ZEALAND POLICE [2019] NZHC 1742

PRINCE v NEW ZEALAND POLICE [2019] NZHC 1742 [23 July 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-34[2019] NZHC 1742BETWEEN BRADLEY PRINCEAppellantAND NEW ZEALAND POLICERespondentHearing: 23 July 2019Appearances: D A Ewen for AppellantM L Paish for RespondentJudgment: 23 July 2019JUDGMENT OF COOKE J[1] On 7 June 2019 the appellant, Bradley Prince, was sentenced before JudgeTompkins in the District Court at Hutt Valley to seven months' imprisonment for twocharges of breach of a protection order.1[2] Mr Prince appeals his sentence on the grounds the sentence was manifestlyexcessive because the Judge erred in taking into account impermissible considerationsand by failing to take account of the principle of totality.Factual background[3] The appellant is the subject of a protection order issued on the application ofhis adoptive father. The order extends protection to Mr Prince's birth mother, thevictim in this matter.1 New Zealand Police v Prince [2019] NZDC 11268; Domestic Violence Act 1995, ss 19 and49(1)(a), maximum penalty three years' imprisonment.[4] Mr Prince was adopted out at age 16. When he was 25 he reengaged with hisbirth mother. The relationship quickly deteriorated when Mr Prince's drug use,alcohol and mental health problems began to surface. Mr Prince is now 42 years oldand it is evident the relationship has not improved.[5] The summary of facts states there have been at least three previous family harmincidents between the defendant and the victim. The criminal history does not recordany convictions for family violence. The reference in the summary of facts mayinclude the two previous convictions for breach of protection orders in 2012 and 2016.The current charges relate to two breaches of this protection order for entering andremaining on land occupied by a protected person without consent.[6] On 3 December 2018 the appellant went to the victim's house. He approachedthe victim in her driveway and asked for a cigarette. She refused his request andrepeatedly told him to leave. He refused to leave and remained on the property untilshe called the Police. He was arrested and charged with breach of a protection orderbut granted bail on 4 December 2018.[7] On 7 January 2019 Mr Prince again went to the victim's house withoutpermission. In explanation he said "yes I was there, I have been going aroundeveryday for the past 14 weeks". He was arrested and charged with breaching aprotection order and was remanded in custody.[8] On 13 March Mr Prince received a sentence indication of seven months'imprisonment with release conditions.2 He entered guilty pleas that day. Heunsuccessfully applied for bail on 16 April, and unsuccessfully attempted to appealthe decision refusing to grant bail on 18 April.District Court decision[9] The District Court decision is brief and does not explain how the Judge reachedthe end sentence. After briefly outlining the charges and factual background, the Judgenoted the s 38 report and pre-sentence report before the Court, and then held:2 New Zealand Police v Prince DC Hutt Valley CRI-2019-096-894, 13 March 2019.[4] The pre-sentence report recommends imprisonment which isinevitable, given the circumstances and notes for a variety of reasons MrPrince is considered at high risk of re-offending and unlikely meaningfully toengage in any form of departmental rehabilitative programme. Only twospecial release conditions are proposed, both of which are explicitly designedto protect Mr Prince's mother from his repetitive, disruptive and traumaticintervention into her life.[5] In those circumstances, on each of the two charges to which guiltypleas were entered on 13 March 2019, Mr Prince is convicted and sentencedto seven months' imprisonment with standard and special release conditionsas per the pre-sentence report to extent to six months past his sentence enddate.Approach to appeal[10] This appeal is governed by subpart 4 of Part 6 of the Criminal Procedure Act2011. A first appeal under subpart 4 must be determined in accordance with s 250.Section 250 provides:(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.(3) The first appeal court must dismiss the appeal in any other case.[11] The focus will be on the final sentence and whether that was in the availablerange, rather than the exact process by which it was reached.3Analysis[12] Mr Ewen for the appellant stresses the mental health issues that are part ofMr Prince's background. He suggests a starting point of four months was moreappropriate given these issues and the non-violent nature of the offending. Mr Ewenalso argues the Judge erred in taking into account the victim's allegations of pastoffending against her. As the judgment appealed against does not provide details as tothe starting point, uplifts, or discounts, the key issue is whether the end sentence was3 Ripia v R [2011] NZCA 101 at [15].within range. The absence of reasoning does not by itself mean the appeal should beallowed.4[13] In Morris-Smith v New Zealand Police Wylie J summarised the generalapproach to the offence of breaching a protection order in the following way:5[14] There is no tariff case for breaching a protection order.6 The maximumpenalty for this offence was two years' imprisonment, but that maximumpenalty has been increased to three years' imprisonment.7[15] The Court of Appeal has stated that the Courts should uphold theintegrity of protection orders and respond sternly to those who flout their forceand effect.8 Orders are intended to ensure that the recipient of the protectionorder is secure and inviolate. Repeated breaches of protection orders call fora condign sentencing response. Where there has been repeat offending over abrief period of time, a short term of imprisonment is the proper response.9[14] The offence potentially involves a wide range of conduct. For non-violentbreaches of a protection order in circumstances where the offender has a history ofbreaching orders the starting point generally begins from around four monthsimprisonment, with the starting point increasing depending on the circumstances suchas the threat of violence. The following cases may provide some general assistancealthough the present case is one that needs to be addressed on its own circumstances,which are somewhat unusual:(a) Irvine v Police:10 The appellant and the victim had been in an on andoff relationship for three years, before a final protection order wasissued preventing contact between the two. Four days later the victimreceived 23 telephone calls from the defendant. She answered one ofthose calls in order to tell the defendant to leave her alone. A few dayslater the defendant went to the victim's home, where he bangedmultiple times on the lounge window of the house before leaving theproperty. The District Court Judge adopted a starting point of 104 See R v Jefferies [1999] 3 NZLR 211 at [16].5 Morris-Stewart v Police [2016] NZHC 1030.6 Apineru v Police [2014] NZHC 1969 at [15].7 Domestic Violence Amendment Act 2013, s 11.8 R v Cartwright CA175/02, 27 August 2002 at [20]-[21].9 R v Nathan CA209/06, 29 November 2006 at [25].10 Irvine v Police [2017] NZHC 3085 (attached).months' imprisonment, referring to the history of the defendant'soffending against the victim and concerns for her safety. On appeal tothe High Court the Judge upheld the starting point, noting that althoughthe appellant did not have a history of breaching protection orders, hebreached the order within days of its imposition in a flagrant andcontinuing manner, while subject to a sentence for earlier offending.The Judge considered the starting point was at the upper limit of theappropriate range but was available to the District Court Judge.(b) R v Mitchell:11 The defendant was convicted of four charges ofbreaching a protection order against her former partner when she left avoice mail message. She had a substantial history of breachingprotection orders. The unthreatening nature of the voice mails meantthat the offending was regarded as not particularly serious. Thesentencing Judge took a starting point of eight months' imprisonmentbut deducted four months to reflect totality, leaving an end sentence offour months' imprisonment. On appeal the Court of Appeal noted thestarting point of eight months was towards the top of the range, but wasan available response given the defendant's relentless and continuousbehaviour.(c) Morris-Stewart v New Zealand Police:12 The appellant was convictedof one charge of breaching a protection order, one charge of wilfuldamage and one charge of breaching release conditions. Thebeneficiary of the protection order was the defendant's former partner.The defendant sent the victim numerous text messages over a period ofa day. He had a history of family violence charges against the victimand a history of breaching protection orders. The content of themessages was threatening and abusive. A starting point of 12 months'imprisonment adopted on appeal, with an uplift of three months forbreach of release conditions and one month for the charge of wilful11 Mitchell v R [2015] NZCA 442, (2015) 30 FRNZ 534.12 Morris-Stewart v Police, above n 5.damage. After discounts the end sentence was 15 months'imprisonment.[15] Here there was no violence, or threat of violence involved in the offending.There is also not a significant proven history of breaching protection orders, with onlytwo previous convictions of breaching protection orders in 2012 and 2016. There arereferences to other suggested breaches of the protection order in the memorandum tothe Court from the Victim Advisor. The Judge does appear to have taken this intoaccount as it referred to his equally brief sentencing indication. Such allegations arenot appropriately taken into account unless recorded in the summary of facts.13 Thesummary of facts refers to there being three previous family harm incidents. Noparticulars are provided in order to understand what that is referring to. I neverthelessaccept the circumstances here suggest a pattern of behaviour, particularly given thetwo previous breaches of the protection order. I also consider the offending aggravatedby the fact the second offence occurred not long after the first, and while Mr Princewas on bail for the first charge. In light of the aggravating factors I consider a startingpoint of six months' imprisonment is appropriate.[16] In terms of mitigating circumstances Mr Prince has been diagnosed withSchizo Affective Disorder Bipolar type and with an opiate dependency. He has beenworking with community mental health and substance abuse programmes to littlesuccess. The pre-sentence reports estimates it is unlikely that he will be able tomeaningfully engage in any form of departmental programme. He is assessed at ahigh likelihood of reoffending but at a low risk of harm to others. Normally suchfactors might lead to a discount, but notwithstanding the personal difficultiesMr Prince faces there does not appear to have been any effective effort made by himto attempt to desist in conduct that is causing the victim significant distress. To givea discount over and above that for admitting the present offence does not appearappropriate in these circumstances.13 R v Proctor [2007] NZCA 289 at [17]–[20].[17] With a 25 per cent discount for guilty plea the end sentence is brought down tojust over four months. The end sentence of seven months imprisonment seems to meto be outside the available range.[18] The unfortunate factor is that Mr Prince had already served over five monthsin prison at the time of his sentence in July 2019, so the effect of allowing the appealwill have little practical effect.Post release conditions[19] The Judge imposed special release conditions extending to six months past hissentence end date. The special release conditions were for Mr Prince to not associatewith the victim and not to go or be found in the victim's street of residence. Mr Ewensubmits the post release conditions in combination with the seven month period ofimprisonment resulted in an end sentence all out of proportion to the gravity of theoffending, and that the Judge failed to consider totality.[20] Under s 93 of the Sentencing Act 2002 an offender sentenced to a short termsentence of imprisonment will automatically be subject to standard releaseconditions,14 and the court may impose any special conditions extended up to sixmonths after the sentence expiry date. Imposition of the special release conditionsmust be consistent with the sentencing principles under s 8 and ought not to be moreonerous or last longer than is necessary to protect the safety of the community.15[21] Mr Ewen argues that the standard conditions of release are already significantrestrictions and that to impose the conditions for a six month period offends the totalityprinciple. As indicated there are unusual features of this case given that the victim isMr Prince's birth mother, and there is apparent concern for both her and Mr Prince,including from Mr Prince's adoptive father. In these circumstances, special conditionsof the kind imposed by the Judge seem to be appropriate. They have both a protective,and a rehabilitative function. It is necessary for Mr Prince to desist from his contactwith his birth mother. I consider the six month period was justified in order to address14 Parole Act 2002, s 14.15 R v Janssen [2007] NZCA 450 at [15]; and Latham-Johnstone v Department of Corrections [2014]NZHC 2451 at [17].the appellant's history of unwillingness to comply with court orders and protectionorders. If he fails to do so further imprisonment may be necessary.Conclusion[22] I allow the appeal and substitute an end sentence of four months'imprisonment, with the standard and special release conditions as specified by theDistrict Court.Cooke JSolicitors:Brandon Street Chambers, Wellington for AppellantCrown Solicitor, Wellington for Respondent