POLLARD v NEW ZEALAND POLICE [2019] NZHC 2611

POLLARD v NEW ZEALAND POLICE [2019] NZHC 2611 [14 October 2019]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2019-425-000022[2019] NZHC 2611BETWEEN GEORGE CRAIG POLLARDAppellantAND NEW ZEALAND POLICERespondentHearing: 14 October 2019Appearances: J K Fraser for AppellantR W Donnelly for RespondentJudgment: 14 October 2019ORAL JUDGMENT OF GENDALL JIntroduction[1] Following his guilty plea, the appellant, Mr Pollard was convicted andsentenced in the District Court at Invercargill on one charge of doing a threatening act,in contravention of section 308(a) of the Crimes Act 1961. He now appeals thesentence of 12 months' supervision, 100 hours' community work and the order to pay$800 emotional harm reparation imposed on him by Judge Brandts-Giesen on21 May 2019.[2] Section 308(a) provides that everyone is liable to imprisonment for a term notexceeding three months who, with intent to intimidate or annoy any person, breaks ordamages or threatens to break or damage any dwelling house.Facts[3] Mr Pollard and the victim here were in a de facto relationship forapproximately 20 years. They have four children together.[4] The offending occurred in the context of that domestic relationship. In breachof a police safety order, the appellant had gone to the victim's home address andpunched several holes in the internal walls of the house. The victim had awoken tothe appellant standing over the bed.[5] Specifically, at 1.40 am on 8 January 2019, the police were called to thevictim's address as the victim wanted Mr Pollard who was there removed. The policecame and did note there were several holes in the internal walls of the property. Theappellant was served with a three-day police safety order.[6] Later, the victim rang police telling them that Mr Pollard had returned to theaddress, entered and gone into her bedroom, where she woke to find him standing overthe bed. He punched the walls several times again, making more holes.District Court sentencing decision[7] Turning now to the District Court sentencing decision, Judge Brandts-Giesensentenced the appellant to 12 months' supervision on the conditions set out in the pre-sentence report, namely that:(a) The appellant was to undertake and complete the non-violenceprogramme and abide by the rules of the programme to the satisfactionof a probation officer; and(b) The appellant was also to attend and complete an appropriate alcoholand drug programme to the satisfaction of a probation officer. Thespecific details were to be determined by the probation officer.[8] The Judge also sentenced the appellant to 100 hours of community work, andrequired an emotional harm payment of $800 to be made to the complainant.Principles on appeal[9] I turn now to the principles on appeal. Appeals against sentence are allowedas of right by s 244 of the Criminal Procedure Act 2011, and must be determined inaccordance with s 250 of that Act. An appeal against sentence may only be allowedby this Court if it is satisfied that there has been an error in the imposition of thesentence and that a different sentence should be imposed.1 As the Court of Appealmentioned in Tutakangahau v R quoting the lower court's decision, "[an appellate]court 'will not intervene where the sentence is within the range that can properly bejustified by accepted sentencing principles'".2 It is only appropriate for the Court tointervene and substitute its own views if the sentence being appealed is "manifestlyexcessive" and not justified by the relevant sentencing principles.3 The focus of anappellate court must "primarily be on the appropriateness of the end sentence, not themeans by which that end sentence has been reached."41 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].The ground of appeal[10] The sole ground of appeal outlined in the Notice of Appeal here is that thesentence imposed is "manifestly excessive". The appellant suggests the sentence wasat the higher end of the available options and when viewed together (i.e. 12 months'supervision, 100 hours' community work and $800 emotional harm reparation) hesubmits this sentence is excessive and should have been in the order of nine months'supervision, $400 emotional harm reparation and 50 hours' community work.[11] The appellant bases this submission primarily on his assertion that the holes inthe wall happened prior to the issue of the police safety order and that the "incident",which lead to the Police being called should have taken this into account. Theappellant accepts, however, that he has pleaded guilty to the summary of facts asprovided which outlines the different position which I have outlined above.Analysis[12] At the outset, I need to say that this court is not in a position to revisit the factson the basis of which the appellant has pleaded guilty.[13] On the face of it, the sentence of supervision (which is one essentiallyfocussing on an offender's rehabilitative needs) coupled with limited community workand the order to pay emotional harm reparation was one at the lower end of thespectrum of sentences imposed for offending relating to domestic violence. Althoughthe present offending by the appellant likewise was at the lower end, the sentence wasof a type supported by the Department of Corrections, and one which would providehim with assistance in ensuring such offending did not reoccur. As Judge Brandts-Giesen in the District Court put it, supervision would hopefully help "curb the worstof [the appellant's] tendencies, including those of alcohol."5[14] The appellant has a history of alcohol related offending, predominantly drivingoffending, and no rehabilitative sentence has been imposed in the past. I am satisfied5 New Zealand Police v Pollard [2019] NZDC 13008 at [13].here that a sentence of supervision, combined with what I see as modest punitiveelement, was an appropriate sentence.[15] Although it might be seen as possible that the supervision could have beenimposed for a lesser duration than 12 months, the conditions imposed (the standardconditions under s 49(1) of the Sentencing Act 2002, and two special conditions), as Isee it, would not necessarily place significant obligations on the appellant for the laterpart of his sentence.[16] Given the facts as they stand, I conclude that the sentence imposed of12 months' supervision coupled with what, in my view, is limited community workand an order to pay $800 emotional harm reparation is quite within a properlyjustifiable range here and, indeed, as I have noted already, it is at the lower end of thespectrum of sentences imposed for offending relating to domestic violence. Thesentence imposed is not manifestly excessive.Conclusion[17] For all these reasons this appeal is dismissed....................................................Gendall JSolicitors:John K Fraser Law Limited, InvercargillPreston Russell Law, Invercargill