ALLAN v NEW ZEALAND POLICE [2021] NZHC 379

ALLAN v NEW ZEALAND POLICE [2021] NZHC 379 [4 March 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATIONS) ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI-2021-442-1[2021] NZHC 379BETWEEN CODY RICHARD ALLANAppellantAND NEW ZEALAND POLICERespondentHearing: 2 March 2021 (AVL)Counsel: M J Vesty for AppellantJ M Webber for RespondentJudgment: 4 March 2021JUDGMENT OF ELLIS J[1] Following a sentence indication, Mr Allan pleaded guilty to charges of:(a) impeding breathing (x 3);1(b) indecent assault (x 2);2(c) threatening to kill;3 and(d) breach of community detention.41 Crimes Act 1961, s 189A(a) [maximum penalty of seven years' imprisonment].2 Section 135 [maximum penalty of seven years' imprisonment].3 Section 306 [maximum penalty of seven years' imprisonment].4 Sentencing Act 2002, s 69(G)(a) [maximum penalty of six months' imprisonment or a $1,500fine].[2] On 22 December 2020 he was sentenced by Judge Rielly to three years andone month's imprisonment.5 He now appeals that sentence.Facts[3] In April 2020, New Zealand was in a state of COVID-19 lockdown. Mr Allanwas serving a sentence of community detention. He had been in a relationship withthe complainant (B) for around two or three months. He cut off his ankle bracelet sothat he could live with B at her family's address during the lockdown.[4] On 11 April, Mr Allan and B took a walk to clear the air—there had beentension between them about a previous partner. As they entered an alleyway, Mr Allantook hold of B and put his arm across her neck and restricted her breathing, causingher to panic.[5] Later, around midnight, the two went to the sleepout. They had anotherargument. B feared for her safety and so tried to leave. Mr Allan blocked her, forcedher onto the bed, and straddled her. He then took a duvet and pillow and smotheredher face, causing her to temporarily lose consciousness. He put the duvet and pillowover her face numerous times, while telling B in chilling detail how he would kill her.B was terrified and thought she would die.[6] During the attack, Mr Allan indecently assaulted B by putting his hand on hervagina over her clothing and touching her naked breasts. He told B that he could dowhatever he liked, which B understood to mean he could rape her.[7] Mr Allan eventually went to the door of the sleepout, ordering B to remainsilent. Fearing for her life, B tried to escape by throwing a heavy ornament atMr Allan. He then grabbed B's neck, taking her to the floor. B screamed for help, butMr Allan put his arm across her neck, again restricting her breathing, and this timecausing her to lose control of her bowels. Mr Allan wrapped his legs around B's waist,telling her that he would squeeze and break her ribs. One of B's ribs did break, as shecontinued to scream for help.5 R v Allan [2020] NZDC 26905.[8] Eventually, B's stepmother arrived from the main dwelling to find her on thefloor. B had numerous bruises, a broken rib and suspected broken jaw, a petechialhaemorrhage in her eye and throat, a hoarse voice, difficulty swallowing, andsignificant tenderness and pain.District Court sentencingSentence indication[9] On 15 September 2020 Judge Rielly gave Mr Allan a sentence indication.After recounting the facts, she explained in detail the effect that his offending had hadon B:[12] I now want to take you through the effects of the offending behaviouron the complainant. They are reported in her victim impact statement. Shehas reported that the medical examination was very invasive for her and thediagnosis of her injuries was difficult. She described that her swollen neckmade it hard to breathe, swallow, talk and cough for a significant period oftime. Her voice box was affected for a period of two weeks as well. Herbroken rib took eight weeks to heal and it made it difficult to move, walk andsit. It also made it difficult for her to carry out daily activities and work.[13] The emotional impact has been even more remarkable for her. Shehas been struggling to sleep, she has difficulty falling asleep as her mind keepsgoing back to that night and then she has nightmares once she is asleep,dreams about what happened and about how frightened she was of whatoccurred, and of you. She finds herself waking screaming and crying. Herlack of sleep has caused her to have low mood and become easily irritated andangry. She finds it hard to focus because of the lack of sleep. She finds it hardto be alone at home or at work. She is hyperalert and conscious of peoplearound her. She has become more distant from friends and family and shestruggles to talk about what happened and avoids conversations with others.She lives in constant fear because of the flashbacks. She cannot return to theroom where this occurred because she is fearful of being in there and itbringing back memories of what happened. Remembering what occurredtriggers anxiety and makes her heart beat fast. She has lost interest in usualdaily activities and struggles to be motivated. She constantly thinks about thatnight and wonders why you did what you did. It makes her feel physically illwhen she thinks about it. Overall the emotional impact has been significant.[10] The Judge noted that Mr Allan has previous violent convictions from Australia,but that these were historic. While his offending in New Zealand had not been violent,he was serving a sentence of community detention service at the time of the offendingagainst B.[11] Because all the offending occurred over just a period of hours, and because allthe offences (apart from the community detention breach) had similar maximumpenalties, the Judge adopted a global starting point of five years.6 She justified this byreference to a number of aggravating features:(a) there were three discrete strangulations over one day (the first while thetwo were out on a walk, the second with the pillow, and the third on theground straddling B);(b) the context of an intimate relationship;(c) the detailed threats to kill B;(d) the extent of, and danger posed by, the strangulations, evidenced by B'sloss of consciousness and bowel control;7(e) the significant (albeit not overly serious) injuries to B; and(f) the further degradation involved in the indecent assaults.[12] The Judge said:[31] In my view, if one of the two strangulations/suffocations that hadoccurred in the sleepout had been considered on its own, the appropriate startpoint for sentence would have been two and a half to three years'imprisonment. If we were dealing with two, it might have been as high as fouryears' imprisonment, but we are in fact dealing with three, and, in my view,whilst I consider that the start point advocated on behalf of the Crown is alittle too high, I consider that the start point for sentence in this case that isappropriate for the offences is five years' imprisonment.[13] The Judge concluded by noting that Mr Allan would receive a full 25 per centdiscount if he accepted the indication. She made it clear to Mr Allan that his endsentence would not be in range for home detention. Even if it was, she said, it was notan appropriate outcome.6 The Crown had advocated for a starting point of five to six years for the strangulation offending;the defence argued for a starting point of 21 months.7 Which the New Zealand Law Commission has noted is indicative of strangulation that is nearfatal.Sentencing[14] At Mr Allan's sentencing on 22 December, Judge Rielly essentially adoptedher earlier analysis and the same five-year starting point. She gave Mr Allan a full 25per cent discount for his guilty plea. As for matters canvassed in Mr Allan's s 27cultural report, and his remorse, the Judge said:[24] I consider that in your case you should receive additional credits toyour sentence of five per cent for your remorse, which I assess as genuine, and10 per cent for the social deprivation and addiction that you have suffered. Ido not consider that the credit can be any higher than 10 per cent because thisis such serious violent offending behaviour. So, overall, that means that, fromthat start point of five years' imprisonment, you will receive a credit to yoursentence of two years, arrived at an end sentence of three years' imprisonment.[15] Finally, the Judge imposed a one-month cumulative sentence for the breach ofcommunity detention charge, giving an end sentence of 37 months' imprisonment.The appealGrounds[16] On behalf of Mr Allan, Mr Vesty submitted that Judge Rielly adopted too higha starting point (five years), which was arrived at (he says) because she gave too greatan uplift for the additional instances of strangulation. More particularly, he says that:(a) when compared with similar cases, an appropriate starting point is twoyears and nine months for the most serious strangulation; and(b) from that, an uplift of nine months should be applied, giving an adjustedstarting point of three years and six months' imprisonment.[17] Mr Vesty takes no issue with the discounts for Mr Allan's remorse, culturalreport, and guilty plea (totalling 40 per cent). Overall, he submits that an end sentenceof two years and one month's imprisonment is appropriate.Approach[18] Mr Allan's appeal is governed by s 250 of the Criminal Procedure Act 2011.An appeal against sentence is an appeal against a discretion. It must only be allowedif the Court is satisfied both that there has been an error in the sentence and that adifferent sentence should be imposed.8 The focus is on the final sentence and whetherit was in the available range, rather than the exact process by which it was reached.9Discussion[19] The maximum penalty for strangulation is seven years' imprisonment: arecognition that, for reasons that are by now tolerably well known, strangulation is anespecially pernicious and dangerous kind of domestic violence. It is regarded as astrong indicator of a real risk of fatal future violence. So even where no significant orlasting physical injury is caused, it is the high level of inherent danger in, and theextreme (and related) fear engendered by, such offending that is seen by Parliament aswarranting a sterner sentencing response.[20] Although I was referred to a number of cases said to be comparable with thepresent, I have found Doogue J's decision in T v Police the most helpful.10 Afterreferring to the previous High Court decisions Ackland11 and Houkamau12, the Judgereferred to the example of the "worst class" of offending given by the LawCommission in its report advocating a new strangulation offence:135.43 An example of the worst class of strangulation within scope wouldfeature the hallmarks of coercive or controlling behaviour and theterror we have identified. For example, a perpetrator enters thevictim's home in breach of a protection order. After an altercation, hestrangles her with his hands on and off for several minutes, leavingher struggling for breath, incontinent and unconscious. The victimthinks she will die and knows that the perpetrator has the power to killher. Because he invaded her home, after the strangulation, she lives inconstant fear for her security and life. As a consequence, he hasachieved coercion and control over her.8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.9 Ripia v R [2011] NZCA 101 at [15].10 T v Police [2019] NZHC 3375.11 Ackland v Police [2019] NZHC 312, [2019] NZAR 1112.12 Houkamau v Police [2019] NZHC 2743.13 Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016).5.44 It is the terror that results from strangulation that is at the heart of thiskind of criminal conduct. That terror is likely to seriously affect allaspects of the victim's life. In our view, the terror that results from this"worst class of case" is greater than the harm of a minor injury and atleast equivalent to a serious physical injury.[21] The Judge then observed:14[40] There is sound reason behind the Law Commission's classification ofthis combination of features as forming the worst type of strangulationoffending. First is the act of strangulation itself. Strangulation can lead tounconsciousness in one of two ways: where breathing is impeded or wherevascular occlusion occurs. In the latter case, unconsciousness may be broughtabout within 10 to 15 seconds. If the pressure applied to a person's neck orthroat is maintained, death may ensue within three to five minutes. However,even where the pressure is released well before this critical point, the sustainedlack of oxygen supply to a person's brain can result in irreversible brain injury.Further, studies have shown that delayed death can eventuate in cases ofstrangulation. It is for these reasons that unconsciousness, as with urinary orfaecal incontinence, are strong indicators of near-fatal strangulation.[41] Second is the coercive nature of strangulation. As the LawCommission noted, strangulation can be distinguished from situationalviolence which is intermittent in nature, is not rooted in a desire to control anddoes not necessarily escalate over time. In a 2001 study of 300 strangulationcases in San Diego, California – specifically discussed by the LawCommission – one of the key findings was that most offenders do not strangleto kill, but rather strangle to show they can kill. Strangulation is in manyinstances a means by which an abuser can [instil] and perpetuate fear in thevictim for the purpose of controlling her. This fear can persist well after thephysical act of strangulation ceases.[42] Third is the increased risk of a future fatal attack. This, the LawCommission suggested, elevates the importance of such behaviour beingunderstood and taken into account by the person or body charged with makingdecisions in respect of both the victim and perpetrator of strangulation. It isalso relevant that in a 2010 paper commissioned by the Ministry of SocialDevelopment entitled Learning from Tragedy: Homicide within Families inNew Zealand 2002–2006, the authors found that a woman is at higher risk ofbeing killed by her male partner if, amongst other factors, he has been violentin the past and exhibits extreme jealousy or control. Strangulation falls underboth of these indicators.[22] The Judge then identified certain features of T's offending as being particularlyaggravating:(a) The victim's unconsciousness and incontinence (being indicators ofnear fatal strangulation).14 Footnotes omitted.(b) The element of home invasion (although T did not "invade" the victim'shome in the traditional sense—he was initially there with herpermission, but he did not leave when asked).(c) The controlling nature of his actions, asserting his dominance over thevictim in the one space she ought to have felt safe. The acts of draggingthe victim into her house, blocking the doorway preventing her fromleaving and continuing the physical assault once inside all served toisolate the victim and would likely have resulted in a heightened senseof helplessness.(d) The offending was prolonged and escalated in nature from simplephysical assault to more violent physical assault combined withpsychological control.(e) The significant impact of the offending on the victim. The injuriessustained reiterated the seriousness of the overall series of assaults andthere was an added factor of humiliation resulting from the victim'sincontinence brought on by her loss of consciousness.[23] The Judge disagreed with T's counsel's submission that the three year startingpoint adopted in the District Court was too high. Rather, she said there was little todistinguish T's offending from the "worst class" of strangulation; a starting point offour years would have been well within range.[24] It is trite that a sentence appeal is concerned not with how a sentence is arrivedat but whether the end result can be said to be manifestly excessive. And in this case,there are a number of ways the Judge could have arrived at the sentence she did. Therewas not one, but three discrete occasions on which B's breathing was deliberatelyimpeded by Mr Allan over the course of 24 hours. The second and third occasions (inthe sleepout) were particularly serious. Repeatedly holding the pillow to B's face andthen removing it during the second incident involves ongoing terrorisation of a kindthat a single act of strangulation or suffocation followed by release does not. B's lossof consciousness (on the second occasion) and faecal incontinence (on the third) areindicators that either attack might well have been fatal. And there are furtheraggravating features to be found in the surrounding circumstances, including mostnotably:(a) the threats to kill (in circumstances where B was hugely vulnerable andwell aware they could easily have been made good);(b) the indecent assaults; and(c) the physical violence, which resulted in (among other injuries) a brokenrib.[25] In my view, Mr Allan's is, by some margin, the most serious of all thestrangulation cases to which I was referred. Section 8(d) of the Sentencing Act 2002provides that a sentencing Court must impose a penalty near to the maximumprescribed for the offence if the offending is near to the most serious of cases for whichthat penalty is prescribed, unless circumstances relating to the offender make thatinappropriate.[26] Either of the two incidents in the sleepout, alone, could easily have warranteda starting point of four years. There could be no quibble with an uplift of a year forthe earlier one.[27] I am therefore unable to discern any error of either approach or result in theDistrict Court Judge's careful and thorough reasoning. The appeal is dismissed.____________________Rebecca Ellis JSolicitors:Crown Solicitor, Nelson for Respondent