JACKSON v NEW ZEALAND POLICE [2019] NZHC 281

JACKSON v NEW ZEALAND POLICE [2019] NZHC 281 [21 February 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2018-419-000070[2019] NZHC 281BETWEEN CAJUN POUTU JACKSONAppellantAND NEW ZEALAND POLICERespondentHearing: 21 February 2019Appearances: R Quin for the AppellantB Vaili for the RespondentJudgment: 21 February 2019ORAL JUDGMENT OF HINTON JCounsel/Solicitors:Rob Quin, Barrister, HamiltonAlmao Douch, HamiltonIntroduction[1] Mr Jackson appeals the sentence of Judge Burnett in the Hamilton DistrictCourt, given on 21 December 2018.1[2] He pleaded guilty to one charge of breaching a protection order.2 Thecomplainant in this matter is Mr Jackson's former partner, with whom he hasfour children.[3] Mr Jackson breached the order by removing two of their children from theirgrandmother's house without informing the complainant and not returning them forseveral days, this amounting to psychological abuse of the complainant.[4] Judge Burnett sentenced Mr Jackson to 16 months' imprisonment. Mr Jacksonappeals on the basis the starting point was too high and/or the uplift the Judge appliedwas "double counting". Mr Jackson says this resulted in a sentence that wasmanifestly excessive.Background[5] The complainant has a parenting order giving her custody of the children. Thatorder stipulated that Mr Jackson was to have only supervised access. The protectionorder was made after Mr Jackson assaulted the complainant and took two of theirchildren in 2015.[6] On 7 July 2018, the complainant dropped the children at their grandmother'shouse, during which it seems Mr Jackson was to have access to the children. Thecomplainant told her not to let him have any unsupervised access.[7] On 11 July 2018, the complainant became aware that Mr Jackson had two ofthe children with him. She was afraid for them given Mr Jackson's history, leading tothe terms of the parenting order.1 Police v Jackson [2018] NZDC 26963.2 Domestic Violence Act 1995, ss 19(1)(d), 49(1)(b) and 49(3).[8] Both the complainant and members of Mr Jackson's family attempted tocontact Mr Jackson to find out where he and the children were. They could not contacthim. She then contacted the Police.[9] On the morning of 12 July 2018, Mr Jackson called the complainant andverbally abused her, as he had discovered she had contacted the Police. Thecomplainant told him the children needed to be returned to their grandmother's house.He did not react well and verbally abused her further. She still did not know wherethe children were.[10] Mr Jackson eventually returned the children to their grandmother's on theevening of 14 July 2018.Proceedings and judgment in the District Court[11] Mr Jackson appeared in the Hamilton District Court on 16 July 2018 in respectof one charge of breaching a protection order between 11 July and 14 July 2018. Noplea was entered and he was remanded on bail to appear on 1 August 2018.[12] On 25 July 2018, Mr Jackson was arrested for breaching his bail conditions.He was re-admitted to bail.[13] On 1 August 2018, Mr Jackson's attendance was excused, a plea of not guiltywas entered and trial by jury elected. He was further remanded to appear on16 October 2018 for case review hearing.[14] On 8 August 2018, Mr Jackson breached his bail conditions. He was remandedin custody while the address he proffered was checked.[15] On 9, 10 and 13 August 2018, Mr Jackson appeared and each time he wasremanded in custody as the proposed bail address check had not been completed.[16] On 14 August 2018, Mr Jackson was re-admitted to bail.[17] On 31 August 2018, his case review hearing date was rescheduled to19 September 2018 at 2.15 pm for a Police case review hearing.[18] On 19 September 2018, Mr Jackson failed to appear and a warrant to arrestwas issued.[19] On 2 November 2018, Mr Jackson was arrested and remanded in custody byconsent.[20] On 7 November 2018, Mr Jackson entered a guilty plea to the charge ofbreaching a protection order and was subsequently remanded in custody pendingsentence.[21] On 21 December 2018, Judge Burnett held that Mr Jackson's actions amountedto a plain case of psychological abuse and a breach of the protection order.[22] The Judge considered, this being the fifth breach of a protection order, andgiven the circumstances of the breach, the appropriate starting point was between12 and 16 months' imprisonment. She settled on a starting point of 14 months. TheJudge then applied an uplift of six months to account for Mr Jackson's previoushistory.[23] The Judge noted that his previous history included the four previous breachesof the protection order, (two in 2015, and another two in 2010) as well as threeconvictions for wilful damage, three for male assaults female, and one for assaultswith intent to injure, all of which were for family violence-related offending. Inrespect of each of these charges, Mr Jackson had been sentenced to terms ofimprisonment, albeit brief terms in the case of each of the protection orders.[24] Judge Burnett allowed a discount of 20 per cent for a guilty plea at the firstcase management conference, coming to a final sentence of 16 months' imprisonment.[25] The Judge considered this was the least restrictive outcome available. She didnot consider a sentence involving electronic monitoring would be suitable, notingMr Jackson had eight convictions for breaching release conditions orcommunity-based sentences. She also noted that Mr Jackson had not consented toelectronic monitoring being considered, in any event.Approach on appeal[26] Under the Criminal Procedure Act 2011, the Court must allow the appeal ifsatisfied that, for any reason, there is an error in the sentence imposed on convictionand that a different sentence should be imposed.3[27] In deciding whether to impose a different sentence, the Court does not simplysubstitute its own view for that of the original sentencing Judge.4 Rather, it must beshown that the sentence is manifestly excessive or wrong in principle.5[28] The Court will not, ordinarily, intervene when the sentence is within the rangethat can be properly justified by accepted sentencing principles.6 The focus is on theend result, rather than the process by which the sentence was reached.7[29] In exceptional cases, it may nonetheless be necessary to correct a sentence thatis within range (for example, where there has been an arithmetical error).8 In any othercase, the Court must dismiss the appeal.9Submissions[30] Counsel for the appellant, Mr Quin, argues two points. First, he says in writtensubmissions that the starting point Judge Burnett took was too high. In oralsubmissions, he acknowledges that the starting point was possibly open to the Judge,but he says that the uplift the Judge applied for previous convictions was doublecounting. He says that Judge Burnett took Mr Jackson's history into account whenshe set the starting point and again when she allowed for the uplift.3 Criminal Procedure Act 2011, s 250(2).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].5 Te Aho v R [2013] NZCA 47 at [30]; Tutakangahau v R, at [30]–[35].6 Tutakangahau v R, at [36].7 At [36].8 At [36].9 Criminal Procedure Act 2011, s 250(3).[31] Both counsel have referred me to case law.[32] In Turner v Police, the appellant breached a protection order by sending a textto his former partner.10 Mr Turner had 11 previous convictions for breachingprotection orders. While the breach itself was not as serious as a physical assault, inthe sentencing Judge's view, "anyone with any basic understanding of the dynamicsof domestic violence would know that it is as damaging as a physical assault tocomplainants of violence".[33] On appeal, Brewer J reduced the starting point to 14 to 15 months'imprisonment, noting the offending was not malicious and that Mr Turner was"slowing down" in his offending.[34] In Carlyon v Police, the appellant was sentenced on two breaches of aprotection order.11 The appellant twice entered the complainant's house without herinvitation and refused to leave while verbally abusing her. The sentencing Judge tooka starting point of 18 months, with an uplift of six months for the appellant's previoushistory.[35] Venning J held that the starting point was appropriate, considering theappellant's prior history of breaching protection orders. He noted, however, that whenapplying an uplift for previous offending, a Judge must be careful not to double countthe defendant's convictions for breaching protection orders.[36] The appellant had what Venning J described as "an appalling record of56 convictions for assault and trespass". Venning J considered the uplift of six monthswas, however, too high when taken together with the starting point. He reduced theuplift to three months.[37] In Wratt v Police, the appellant was sentenced for two breaches of a protectionorder.12 The appellant had a history of offending towards the complainant and hadbreached the order on three separate occasions. For some unexplained reason, it seems10 Turner v Police [2017] NZHC 1113.11 Carlyon v Police [2017] NZHC 2526.12 Wratt v Police [2018] NZHC 2477.the appellant was living with the complainant in 2015. He would constantlyinterrogate her about contact she had with other people. This was the first breach. Thesecond occurred while on EM bail for the first, when he sent her 100 text messages ina short period of time. The sentencing Judge took a starting point of 12 months'imprisonment, which was upheld on appeal by Cull J.[38] Mr Quin also directed my attention to Cull J's review of other breach ofprotection order cases in Wratt.13 I have also examined and considered these cases,but do not feel the need to reproduce them here.[39] Regarding the uplift, Mr Quin, I think, accepts that some adjustment forMr Jackson's criminal history is appropriate, but he submits that six months, incombination with the 14-month starting point, is manifestly excessive. He says this isdouble counting the previous breaches of the protection order.[40] The respondent submits the uplift is appropriate in light of Mr Jackson'sprevious history for family violence-related offending and otherwise.Discussion[41] After examining the cases referred to me, I can only conclude that sentencesfor breaches of protection orders vary to a large extent. Comparing one case to anotheris difficult, because this sort of offending is always highly contextual.[42] While one set of facts may look less severe compared to another, it may be thatthe offending in one, while a minor breach in or of itself, is significant in the contextof the history between the defendant and the complainant.[43] It is for this reason that, when sentencing for breach of protection orders, priorconvictions for breaches of protection orders are integral to the assessment of thegravity of the index offending and I cite here Carlyon v Police, Crean v Police andMitchell v R.1413 At [28].14 Carlyon v Police [2017] NZHC 2526 at [20]; and Crean v Police [2015] NZHC 3203 at [16]. Seealso Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498 at [12].[44] This also means it will be difficult to compare cases.[45] This case is somewhat different to those referred to me, in that the breach ofthe order is indirect. It involved, at least initially, Mr Jackson's taking the childrenfrom their grandmother's without the complainant's consent, rather than direct contactwith the complainant. He subsequently called and verbally abused her.[46] I agree with Judge Burnett, however, that the taking of the children in itself isclear psychological abuse. Given Mr Jackson's previous history and his not telling thecomplainant where they were for a number of days, her distress and anxiety wouldhave been significant.[47] I also consider this was deliberate, as he seems to have intentionally notcontacted anyone until he heard of the Police being involved.[48] The Crown submits the fact Mr Jackson breached a parenting order is anadditional aggravating feature of this offending, and I agree. I understand Mr Jacksonwas not charged in relation to that offending.[49] I also take into account Mr Jackson's four prior breaches of a protection order,although I acknowledge that these were some time ago, being two each in 2015 and2010.[50] Taking into account the offending, its context, and Mr Jackson's prior breachhistory, I consider that the starting point of 14 months was somewhat stern, but not outof range.[51] I move now to consider the uplift for previous convictions.[52] In cases of breaching a protection order, I agree with Mr Quin, a Judge mustbe careful to avoid the spectre of double counting when considering an uplift forprevious offending. This is because previous breaches of protection orders are alsorelevant to the starting point, as I said earlier.[53] Leaving the breaches of the protection order aside, in terms of seriousoffending, Mr Jackson has three convictions for male assaults female, threeconvictions for wilful damage, and one for assaulting with intent to injure. All of thesewere family violence-related offending. As I have said, in respect of each, Mr Jacksonwas sentenced to terms of imprisonment.[54] The most recent term of imprisonment was in 2015 where Mr Jackson wassentenced as follows:(a) Two breaches of protection order – eight months' imprisonment.(b) Male assaults female – six months' imprisonment (concurrent).(c) Unlawfully takes a motor vehicle – six months' imprisonment(concurrent).(d) Driving with excess breath alcohol – seven months' imprisonment(concurrent).[55] As Ms Vaili submitted, in total Mr Jackson has 29 previous convictions andeight breaches of sentence as well as breaches of Court orders.[56] I do not have any information or record of any family violence-related call-outsregarding Mr Jackson. I regard it as somewhat unsatisfactory that this informationwas apparently not put before the District Court because I consider it can be significantin decisions such as this. Family violence case histories are seldom fully reflected inthe standard criminal record.[57] In any event, considering Mr Jackson's criminal history, leaving aside hisbreaches of protection orders, the uplift was again stern, but I consider it was withinthe range available to Judge Burnett.Conclusion[58] I therefore concur with the sentence reached by the Judge and dismiss theappeal.[59] I would add, having read this file carefully, that one of Mr Jackson's biggestproblems is his inability to comply with Court orders, which he refers to as being "setup to fail". In small part, he may be right, but not in large part. I am sure his childrenneed him in their lives, and vice versa. He should try harder next time he comes outof prison to stay out.-----------------------------------------------------Hinton J