THOMPSON v POLICE [2019] NZHC 1983

THOMPSON v POLICE [2019] NZHC 1983 [14 August 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-154[2019] NZHC 1983BETWEEN CHARLIE THOMPSONAppellantAND NEW ZEALAND POLICERespondentHearing: 22 July 2019Counsel: N Soondram for AppellantS T L Teppett for RespondentJudgment: 14 August 2019JUDGMENT OF BREWER JThis judgment was delivered by me on 14 August 2019 at 3:00 pmRegistrar/Deputy RegistrarSolicitors:Meredith Connell (Auckland) for RespondentCounsel:Nalini Soondram (Auckland) for AppellantIntroduction[1] Mr Thompson appeals his sentence of three years and nine months'imprisonment imposed by Judge Ronayne.1 The sentence was the end point reachedby the Judge in respect of violent offending by Mr Thompson against his formerpartner. The offending occurred over a period of eight months on four separateoccasions.[2] The grounds of the appeal are that:(a) the Judge erred in law by imposing sentences cumulatively instead ofconcurrently; and(b) the end sentence was manifestly excessive.[3] The first ground of appeal is misconceived. The maximum sentence for themost serious of the charges is three years' imprisonment. To achieve an end sentenceabove three years' imprisonment the Judge had no choice but to impose sentencescumulatively.[4] The second ground of appeal is the operative one. If the end sentence ismanifestly excessive then that is an error which means I must allow the appeal andimpose a different sentence.Background[5] The facts of Mr Thompson's offending are as follows:(a) 15 December 2017 – male assaults female.2 During an argument atthe Glen Innes train station Mr Thompson shoved, pushed, and yelledat the victim to walk faster. She became frightened and tried to grab asteel railing while Mr Thompson tried to pull her from it. She let go ofthe railing for fear her arms would break and he forcibly carried her1 New Zealand Police v Thompson [2019] NZDC 3625.2 Crimes Act 1961, s 194(b). Maximum sentence two years' imprisonment.down the footpath. When she managed to break free he grabbed her,and again pulled her off the railing. When she attempted to call thepolice, Mr Thompson struck the phone from her hand causing it tosmash. The victim sustained minor scratches and red marks to herarms, which were sore.Mr Thompson was granted bail in respect of this charge on26 December 2017, with a condition that he was not to associate withthe victim. He pleaded guilty to the charge on 30 January 2018.(b) 8 January 2018 – assault with intent to injure.3 Mr Thompson wentto the victim's home in breach of the non-association bail condition.When she told him he could not stay an argument broke out. The victimattempted to leave the room, but Mr Thompson grabbed her andwrapped her in a bear hug. She called for help and Mr Thompsonwrapped his hands around her neck and choked her. He also pushedher head back so it hit a wooden board on the couch and she becamedazed. As the victim attempted to get away he grabbed her knee andpushed it into the wooden board on the couch and pushed her head intothe floor. She wrestled free and left the room, and he yelled:I might as well stab you so it's worthwhile when the copscome, then kill them all and ram a knife through my neckwhen they come through the door.The victim suffered scratches to her neck and bruising to her knee.Mr Thompson was granted bail in respect of this charge on 16 February2018. On 22 August 2018 he was found guilty on the charge in a judgealone trial.(c) 4 July 2018 – male assaults female and assault with intent to injure.While awaiting trial for the 8 January 2018 offending, Mr Thompsonwas at the victim's home. They were drinking together. Her landlord3 Section 193. Maximum sentence three years' imprisonment.was present. When the landlord left Mr Thompson began to swear atthe victim while pushing and shoving her across the backyard. Heslapped her twice in the face with the back of his hand before forciblylifting her off the ground and throwing her face-first into a nearby bush.He then approached her and pulled her hair downward, attempting torub her face in the ground. While pulling her hair he punched her twicein the face with a closed fist, then tipped his remaining drink on her andspat in her face. She attempted to escape but Mr Thompson chased andcornered her, punching her with a closed fist and sufficient force to hurlher into the air and cause her to lose consciousness. She managed toget to her feet, but Mr Thompson followed her, continuing to push,shove, and drag her along the ground while yelling abuse. The victimsuffered a sore left side of her jaw, sore head and bruises on the neck.She also sustained cuts to the left shin and both elbows as well as grazesto the knuckles on her hands.(d) 3–4 August 2019 – assault with intent to injure and male assaultsfemale. At approximately 5 pm on 3 August 2019 Mr Thompson andan acquaintance went in a vehicle to Otahuhu train station. The victimwas there. She attempted to escape but was caught and forcibly pulledinto the vehicle. Mr Thompson yelled abuse at her while theacquaintance drove them to Mr Thompson's apartment. Mr Thompsontold her to go to his room or he would hurt her. He drank with friendsbefore eventually returning. He swore at the victim and forced her intoan enclosed wardrobe where he punched and kicked her, causing herhead to hit the concrete wall. He was in and out of the apartmentthroughout the night. The next morning, he saw the victim attemptingto leave via the stairs. He slapped her in the face with the back of hishand, pulled her upstairs and hit her again. As a result of these assaultsthe victim sustained contusions to the head, eyes and thorax as well asmultiple facial and chest bruises.Mr Thompson was arrested on 5 August 2018. He pleaded guilty at alater date and was sentenced on 28 February 2019.District Court decision[6] Judge Ronayne began by setting out the details of the offending inchronological order. He then summarised aggravating features of the offending:[11] Most of your offending was committed while you were on bail andnot to associate with the victim. Also, your offending was in specific breachof a non-association clause in your bail. Also, your attacks were repetitive.Also, your attacks were to her head, including punches while she was down,including also a massive punch to her head which hurled her into the air. Also,your attack on her was deliberately humiliating in nature including pouringdrink on her and spitting on her face. Also, you inflicted multiple injuries andinflicted a loss of consciousness on her. Also, she was vulnerable anddefenceless from your cowardly attacks on her. Also, your attacks weresustained, chasing her at times, repeatedly returning on one occasion, as I havejust outlined, to continue your attacks on her as, it seems to me, it suited you.Also, on at least one occasion, if not more, there was a considerable degree ofconfinement of her. You are fortunate not to be facing a kidnapping charge orcharges also. Also, a good deal of your offending was highly premeditated.Also, you choked her. Parliament has created a new offence for that now anddaily multiple men like you are charged with that sort of gutless overwhelmingterrifying attack.[7] Judge Ronayne noted Mr Thompson's previous convictions in Australia for theequivalent of contravening a protection order, resulting in a term of imprisonment.4He noted also that the three pre-sentence reports recommended imprisonment andgave him an impression of Mr Thompson as victim-blaming, denying the offendingand dangerous to women.5 The reports assessed Mr Thompson as having a high riskof re-offending. The Judge later took a similar view of the mental health report, whichindicated a failure to take responsibility and endeavours to blame alcohol.6 That reportassessed Mr Thompson as at a low to moderate risk of reoffending. The Judgepreferred the pre-sentence reports' assessment of risk.[8] Judge Ronayne emphasised the need to hold Mr Thompson accountable andpromote in him a sense of responsibility.7 There was need also to protect thecommunity, particularly women who might form a relationship with him, and to caterto the interests of the victim.4 New Zealand Police v Thompson, above n 1, at [12].5 At [13].6 At [15].7 At [13].[9] The Judge said he would not give Mr Thompson credit for participating in aMan Alive program, believing his participation had been insincere.[10] Judge Ronayne identified starting points for the offences as follows:(a) 15 December 2017 – male assaults female (maximum of two years'imprisonment): three months' imprisonment.(b) 8 January 2018 – assault with intent to injure (maximum of three years'imprisonment): one year's imprisonment. Being a distinct occasion,this would be applied cumulatively.(c) 4 July 2018 – assault with intent to injure (maximum of three years'imprisonment): two years' imprisonment. Male assaults female(maximum of two years' imprisonment): one year six months'imprisonment. The two sentences would be applied concurrently witheach other and cumulatively on the other sentences.(d) 3–4 August 2018 – assault with intent to injure (maximum of threeyears' imprisonment): two years' imprisonment. Male assaults female(maximum of two years' imprisonment): six months' imprisonment,added to the two-year starting point for the assault with intent to injure.This was to be applied cumulatively on the other sentences.[11] This produced an overall starting point of five years and nine months'imprisonment. Judge Ronayne reduced this to four years and six months to reflecttotality.8[12] Judge Ronayne increased the starting point by two months for Mr Thompson'sprevious offending. He then gave a 20 per cent discount for guilty pleas on a globalbasis (despite Mr Thompson defending one charge), bringing the total down by11 months to three years and nine months' imprisonment.8 At [21].[13] I summarise the overall sentencing by reproducing a table appearing in theCrown's submissions:OffencedateCharge Nature of offence MaximumpenaltyStarting point Sentenceimposed15.12.2017BailMaleassaultsfemaleGrabbing andpulling her fromthe fence2 years'imprisonment3 months'imprisonment3 months'imprisonment08.01.2017BailAssaultwithintent toinjureGrabbing her,choking her andyelling threats ather3 years'imprisonment1 year'simprisonment10 months'imprisonmentOne04.07.2018 MaleassaultsfemalePushing, shoving,slapping andthrowing her inthe bush2 years'imprisonment1 year and6 months'imprisonment1 year'simprisonmentincident 04.07.2018 Assaultwithintent toinjureChasing her andpunching,resulting inunconsciousness3 years'imprisonment2 years'imprisonment(concurrentwith previousoffence)1 year and10 months'imprisonmentOvernight03.08.2018 Assaultwithintent toinjureForcing her intothe wardrobe andassaulting her3 years'imprisonment2 years'imprisonment1 year and11 months'imprisonmentincident 04.08.2018 MaleassaultsfemaleSlapping her andpulling her backup the stairs2 years'imprisonment6 months'imprisonment5 months'imprisonmentWas the sentence manifestly excessive?[14] In Wati v R, I summarised the Court's general approach to male assaults femaleoffending as follows:9[18] As to the male assaults female charges, I note there is no tariff for thisoffence. For single offences, a sentence of imprisonment can range from twomonths to 12 months' imprisonment. It is never easy to fix a starting point incases involving domestic violence because the circumstances of cases vary sowidely and sentencing Judges must work within a range available to them formultiple offences. In general, Courts have imposed sentences of around twoto three years' imprisonment on charges involving domestic violence. One ofthe factors taken into account when fixing a starting point is the period overwhich the violence was inflicted.[15] It is particularly difficult to come to an appropriate end sentence where therehas been a significant number of violent assaults over an extended period. As JudgeRonayne appreciated, sentencing in such a situation cannot be a mathematical exercisewhere individual starting points are identified and their sum taken as the overall9 Wati v R [2015] NZHC 2064.starting point. There is a need to stand back and undertake an overall assessment ofthe seriousness of the offending.[16] There is a dearth of relevant Court of Appeal precedent in this area. NeitherMs Soondram for Mr Thompson nor Mr Teppett for the Crown could really point touseful authority. Ms Soondram cited Nathan v Police,10 R v Walker11 and Carson vR.12 Nathan is of limited use because it dealt with fewer instances of offending overa longer time; Walker is not useful due to the impact of sexual offending on thesentence imposed; and Carson is difficult to apply because it does not clearly set outthe starting points, uplifts or discounts which produced the end sentence of three years'imprisonment.[17] The Crown simply supported Judge Ronayne's analysis.[18] I have identified Court of Appeal cases which together have produced a rangeof sentences. The range goes from sentences higher than in the present case tosentences lower than in the present case. The facts of each case are, naturally,dissimilar. But the range gives me broad assistance in my assessment of whetherMr Thompson's sentence is manifestly excessive. I will summarise them.[19] Maihi v R involved more serious offending over a longer span of time:13(i) Mr Maihi pleaded guilty to one charge of wounding with intent toinjure and three charges of injuring with intent to injure arising out offour separate attacks on his partner over a 19-month period, as well asone charge of assault on a child. The first injuring with intent offenceinvolved verbal abuse, punches to the head and kicking in the headwhile the victim was on the ground attempting to escape but fading inand out of consciousness. The second involved climbing into thevictim's bedroom through a window and punching her in the headnumerous times while she was in bed. One or more of these blows10 Nathan v Police [2018] NZHC 1740.11 R v Walker [2013] NZHC 1945.12 Carson v R HC Rotorua CRI-2011-463-23, 8 June 2011.13 Maihi v R [2016] NZCA 205.glanced off the victim and onto their baby who was also in the bed; thiswas the basis of the assault on a child charge. The punches to the headcontinued after the victim managed to get out of bed and put the babyin her bassinet, and there was one hard punch to the ribs. The thirdcharge involved waking the victim and punching her repeatedly in theface and head, continuing to punch her as she attempted to crawl away.The wounding with intent charge arose from Mr Maihi punching thevictim in the head without warning, causing loss of consciousness,getting on top of her (while she was unconscious) and repeatedlypunching her about the head as well as kicking her in the genitals. Hedid not stop attacking her even after she began to "play dead". Thevictim sustained a number of injuries, including multiple cuts, bruisingand swelling to the head and eye sockets, loss of sensation in her cheekand teeth, tenderness, a broken rib and a broken nose, as well as lastingemotional damage.(ii) The Judge set starting points of three years for the first incident, twoyears and six months for the second, two years and six months for thethird, and two years for the fourth, imposed cumulatively for a total often years' imprisonment. The Judge reduced this to eight years toreflect totality. The Judge then applied an uplift of three months forprevious convictions for violence and granted discounts of six per centfor remorse and efforts at self-improvement and 18 per cent for theguilty plea. On appeal the Court considered the starting pointsappropriate but the totality adjustment too small, adjusting the overallstarting point to six years and six months. The uplift for previousoffending was then increased to six months, with a further uplift ofthree months imposed for offending while subject to release conditions.The Court left in place the six per cent discount for mitigating factorsand the 18 per cent discount for the guilty plea, resulting in an endsentence of five years and six months' imprisonment.[20] Clark v R, on an overall assessment of the levels of violence, approaches thelevels of violence in the current case.14 However, the violence occurred over a muchlonger period and there were regular threats to kill:(i) Mr Clark pleaded guilty to charges for violence of medium severityagainst his partner and children in the context of a six-year period ofdomestic violence. Regarding his partner there were three charges ofinjuring with intent, one representative charge of male assaults femaleand one representative charge of threatening to do grievous bodilyharm. Regarding his children there were two representative charges ofassaulting a child and one representative charge of male assaultsfemale. The injuring with intent charges arose from three incidents.The first involved a backhand hit to the victim's face. The secondinvolved a short period of choking by the throat. The third involved aslap to the face, punch to the stomach and kick to the thigh and hiprequiring a visit to the doctor and time off work. The two representativecharges covered a six-year period of regular punching and hitting,resulting in regular black eyes and split lips as well as regular threatsto kill the victim and put her where she would not be found. Thecharges in respect of the children arose from similar violent conduct:punching, slapping and assaults with a belt.(ii) On the charges involving the partner, the Judge set a six-year startingpoint. There was no uplift for previous offending. The Judge granteddiscounts of three months for remorse and 14 months for guilty pleas,producing an end sentence of four years and seven months'imprisonment. Regarding the offending against the children, thestarting point was two years, with discounts of three months forremorse and four months for guilty pleas. The sentence was dividedequally between each child as three cumulative sentences. Thisresulted in a sentence of six years' imprisonment. Adjusting for totalitythe Judge shortened the terms for each of the sentences involving the14 Clark v R [2013] NZCA 63.children to reach a final overall term of five years and six months'imprisonment.(iii) On appeal, the Court accepted that six years was an appropriate startingpoint for all the offending, comprised of four years and six months forthe offending against the partner and 18 months for offending againstthe three children. However, the Court increased the discount forremorse and efforts to reform to six months. This was followed by a20 per cent reduction recognising guilty pleas, producing a finalsentence of four years and five months.[21] Johnstone v R is perhaps closer to the degree of violence in the present case,although the victim suffered a fractured wrist in one assault.15 The violence wasinflicted over a shorter period of time:(i) Mr Johnstone was tried and convicted on nine counts for eventsoccurring over four months. This was while Mr Johnstone was subjectto a lifetime parole condition that he was not to associate with thecomplainant. He was convicted on four charges of male assaultsfemale, one charge of causing grievous bodily harm with recklessdisregard, one charge of intentional damage, two charges of threateningto kill and one charge of breaching a release condition. The grievousbodily harm charge related to an instance where Mr Johnstone threwthe victim across the room, fracturing her wrist. The male assaultsfemale charges included kicking causing bruising and lifting andthrowing the victim onto concrete. The two threatening to kill chargesarose after the victim had locked Mr Johnstone out of her house, andhe attempted to kick down the door and threatened to kill both thevictim and her neighbour if either called the police.(ii) The Judge avoided imposing cumulative sentences because they wouldresult in an unjustifiably high sentence. Instead he took an 18-monthstarting point on the grievous bodily harm charge before applying an15 Johnstone v R [2013] NZCA 214.uplift of two years for all the other charges. This produced a total ofthree years and six months' imprisonment. The Judge discounted thepersonal aggravating factors of offending whilst on parole. The Judgealso noted the "dismal" nature of the pre-sentence report andMr Johnstone's lack of remorse or insight into his current offending.There were no mitigating factors or guilty plea to discount for. TheCourt of Appeal upheld the sentence on appeal.[22] A case involving less serious offending over an extended period of time isA v R:16(i) The defendant was found guilty in the District Court of fivecharges for abuse of his wife across their two-year relationship,which ran from January 2014 through their marriage inSeptember 2014 and concluding in September 2015. It is notclear at what point in the relationship the abuse began. Therewere three charges of assault with intent to injure, one charge ofthreatening to kill and a representative charge of assault. Mr Awas also found not guilty on seven charges and the jury washung on 12 others, which the Crown did not prosecute again.The first assault with intent to injure involved Mr A punchinghis wife repeatedly on her shoulder and grabbing her by the hairwhile driving on the motorway. The second was for twistingher nose. The third was for forcefully hugging her while shewas pregnant and sick, then yanking her head by her hair. Thethreatening to kill charge regarded a threat causing her to seekrefuge at a friend's house. The representative charge of assaultwas for regularly assaulting her in various ways throughout theirrelationship.(ii) The Judge took the motorway assault as the lead charge andimposed a starting point of 16 months. An uplift of nine months16 A v R [2017] NZCA 278.was applied for the other offending. This produced a total of25 months. The Judge then granted a five-month discount forremorse, rehabilitation, and time spent on restrictive bail,resulting in an end sentence of 20 months' imprisonment. Thesentence was upheld on appeal.[23] As is apparent, none of the cases I have discussed have a marked factualsimilarity with the present case. Sentencing for domestic violence offending isinevitably highly fact-specific. A Judge must assess the degree and pattern of violenceacross incidents, the period of time in which the incidents of violence occurred, andother aggravating or mitigating details of the behaviour. If the offending involvedwounding, the use of weapons and/or threats to kill then sentences will naturally behigher. Those features are lacking in this case.[24] Mr Thompson's assaults did not feature weapons and he was not charged withthreatening, though he did yell "I might as well stab you". Nevertheless, the offendingwas consistently seriously violent. In every instance of offending but the first hecaused damage or other danger to the victim's head by punching, throwing, pushingor choking her. He caused her to become dazed or lose consciousness at least twice.The violence appears often to have been humiliating in nature – particularly throwingthe victim into a bush, pouring a drink on her, spitting in her face, dragging her andtrapping her in an enclosed wardrobe. The detention in the wardrobe was preceded bykidnapping the victim from a public place by taking her in a car. The attack in herback garden and the detention in the wardrobe also appear to have been sustained forlong periods. The offending behaviour lasted for more than seven months.[25] Into the assessment must come consideration of:(a) the fact that all of the offending after the first incident occurred whileMr Thompson was on bail and, in every case, he was in breach of aparticular condition of bail that he not associate with his victim; and(b) the violence on 4 July 2018 occurred while Mr Thompson was awaitingtrial for the violence which occurred on 8 January 2018. Mr Thompsonwas convicted of that offending.[26] Judge Ronayne gave an overall discount of 20 per cent to mark the factMr Thompson entered pleas of guilty for all but the charge upon which he stood trial.That is particularly generous. Mr Thompson's pleas of guilty came at varying timesand he is not entitled to any credit on the charge upon which he was found guilty.[27] I agree with the starting points adopted by Judge Ronayne. The attacks on4 July 2018 and 3–4 August 2018 were particularly serious and warranted sentencestowards the upper end of the ranges available.[28] The overall starting point of five years and nine months was reduced by oneyear and three months (22 per cent) to take account of totality, and the furtheradjustments led to the end sentence of three years and nine months.[29] I have stood back and considered the overall pattern of violence, the levels ofviolence, the period it covered and the context of repeated breaches of bail. In myview, the end sentence does not sit out of place in the range of sentences approved bythe Court of Appeal in the cases I have discussed.Decision[30] On my analysis, the end sentence of three years and nine months' imprisonmentwas within the range available to Judge Ronayne.[31] The appeal is dismissed.________________________________Brewer J