R v SMITH [2018] NZHC 2361

R v SMITH [2018] NZHC 2361 [7 September 2018]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-Ō-MARU ROHECRI-2016-076-001086[2018] NZHC 2361THE QUEENvGEORGE DAVID HENRY SMITHHearing: 7 September 2018Appearances: A R McRae and H V Bennett for the CrownT J Jackson for the DefendantDate: 7 September 2018SENTENCING REMARKS OF NATION J[1] Mr Smith, you are being sentenced on charges of kidnapping, unlawfulpossession of a firearm, possession of methamphetamine and possession of utensilsfor using methamphetamine.[2] You have heard counsel tell me that they have filed written submissions.They were long and detailed and I have considered them carefully. And, thosepresent in Court need to be conscious of the fact that I have carefully consideredvery detailed submissions that have been filed by both the Crown and by Mr Jacksonfor Mr Smith.[3] In November 2016, you were aged 35. You had been in an intermittentrelationship with your victim for approximately 15 years. You married in December2015 but in September 2016 she ended the relationship. You could not accept that itwas over.[4] Early in the morning of 30 November 2016, you were waiting outside herhouse. When she went to get into her van to drive to work, you grabbed her andpushed her forcefully into the back of the van. You had an associate drive thevehicle away. You held her down in the vehicle as it left the scene. You and yourassociate drove her into the country. The van was driven to a point under a bridgewhere it was unlikely to be seen and where you had set up a makeshift camp. Yourassociate left the scene and probably drove away in your ute. It was found more thana month later in a forested area, about 30 minutes drive away from the scene, hiddenfrom view of the road.[5] Your actions were serious, sinister and potentially life-threatening for yourvictim.[6] A seriously aggravating feature of the offending was the pre-meditationinvolved. You knew your victim did not want to have any contact with you. Therehad been an earlier incident when you had, without her agreement, got into hervehicle at her work place and pressured her into driving you to a place in the countrywhere you were married. Although you had ended up being with her for the night,she had been disturbed by what had happened. She went to the Police and ultimatelyobtained a protection order. She was in Australia for a short time but, on returning,made it clear to you directly that she did not want to have any further contact withyou and she did not want you to be harassing her friends and family in the way thathad been occurring.[7] You decided to force her to be with you. On the day before the kidnapping,you contacted her employer to find out what her work schedule would be. Youobviously picked out the site you were going to take her to and set up your makeshiftcamp under a bridge there.[8] There is no doubt that you arranged for an associate to drive her van so youwould be able to force her to stay with you in the back of the van. On all theevidence I heard during the trial, there is no doubt that it was this associate whodrove in the morning as you forced the victim to go away with you. The Police havenot been able to identify who that person was. It must be of considerable concern toyour victim, and indeed to the Police, that there is someone who remains in thecommunity who was willing to help you kidnap your wife in the way that you did.[9] You must have arranged for that associate to be able to leave the scene underthe bridge where you ended up, either in your ute or in some other way.[10] You prepared for the kidnapping by camouflaging your face and disguisingyour appearance somewhat by tying up your beard. Prior to that day, you had boughtthe ties and the insulating tape.[11] You knew you would be detaining your victim against her will. You preparedfor that by having with you handcuffs and thumb-cuffs. You also had a rifle withammunition. You were not planning to go wallaby shooting. While your victim wasin the van, you took from her one cell phone and threw it out the sunroof of the van.You removed the battery from another cell phone and threw that out of the vehicle.[12] The offending did involve actual violence but also threatened violence andthe use of a weapon. There was violence in the way you forced your victim into thevan, the use of force in the way you held her down in the van with the hope that noone would see her being taken away, and the use of force in the way you applied thethumb-cuffs to a degree that physically hurt her. There was real danger in the wayyou handled the firearm while with her at the campsite, and the way you showed hertwo bullets and said they were for each of you.[13] In some other cases, there has been more serious physical violence associatedwith a kidnapping. I consider the extent of the psychological trauma, which yourvictim must have suffered over a long period, makes this kidnapping alsoparticularly serious. Given the early hour of the day, the circumstances in which youforced her into the van, and the fact you were holding her in the van with anotherassociate driving, she must have been hugely fearful as to what was going to happento her. It would have been obvious to her that you were not thinking straight. It isunderstandable, and I accept that, when she was in the van and when she was withyou under the bridge, she feared for her life. She did not know where she was exceptthat she was somewhere in the country. She was not in a situation where she couldget help. It was almost 24 hours after she was taken, when you had fallen asleep,that she went on to the road from under the bridge and was able to get help from apassing motorist. I accept, from what I heard from both your victim and the motoristwho picked her up and took her to the Police station, that she was distressed andfearful.[14] In Heke v R, the Court of Appeal, referring to an earlier judgment of theCourt of Appeal in R v Wharton, said:1 cases involving a former spouse who defies a protection order and detainsa fearful, often battered and helpless female ex-partner for motives of power,revenge, jealousy or irrational anger" are becoming more common and areno less serious than other types of kidnapping.[15] I bear in mind that you were found not guilty on the charge of breaching aprotection order but that does not change the fact you knew a protection order hadbeen made. What you did with your victim here had many of the features which theCourt of Appeal said make this sort of case no less serious than other types ofoffending. As in R v Wharton, this kidnapping "involved prolonged and lawlessinvasion of the rights, dignity and integrity of a woman powerless to resist [you]".2[16] In Wharton, the Court of Appeal reduced a sentence for kidnapping from fourand a half to three and a half years, but that was in a situation where the appellanthad pleaded guilty.[17] In Heke v R, in 2016, the Court of Appeal referred to:The Courts' recognition of the particular need for deterrence, denunciationand protection in such cases has, if anything, increased in the 12 years sincethat case was decided.[18] A further aggravating feature with this offending was that it involved a breachof trust. That is nearly always the case with domestic violence offending. But, I alsoaccept that, in detaining the victim under the bridge throughout the day and thefollowing night, you were manipulating her to stay with you as you wanted becauseshe was your wife.1 Heke v R [2016] NZCA 38 at [10], citing R v Wharton (2003) 20 CRNZ 109 (CA).2 R v Wharton, above n 1, at [12].[19] You took advantage of her when she was vulnerable, forcing her into the vanearly in the morning, when she was taken completely by surprise and when youintended that no one else would be able to come to her assistance. She was alsovulnerable simply by the way, through your size, you would have been able tophysically overpower her and intimidate her.[20] The only mitigating circumstance I can have some regard to is the fact that,during the time you detained her, you did not inflict the sort of serious physicalinjuries which have occurred in some other cases. Balanced against that howeverhas to be the serious psychological harm she suffered.[21] I must arrive at a starting point sentence for the kidnapping, having regard toall mitigating and aggravating features of the offence. There is no tariff decision forkidnapping. In Cassidy-Gugich v R, a starting point of two years and six months wasupheld on appeal in relation to kidnapping of the offender's ex-partner.3 In that case,Downs J said that was a correct starting point in situations where a former partner isdetained briefly and there is associated violence or threats of violence, but longer andmore serious instances of kidnapping would attract more serious sentences.[22] In Solicitor-General v Nahu, the Court of Appeal held that a kidnappingalone, without violence, in circumstances where the defendant abducted the victimlate at night from her home and orally abused and threatened her, could havesustained a sentence of four to five years.4[23] I accept the harm you have caused your victim has been serious and ongoing.It is not surprising that she feels constantly unsafe and on-guard, she fears to bealone and she has been left with a sense of "utter despair and hopelessness".[24] At your first trial, you were found guilty on the charges of unlawfulpossession of methamphetamine and possession of utensils. You had pleaded guiltyto the charge of unlawful possession of a firearm. Because I am treating thatoffending as really being part of the kidnapping offence, which is the lead offence3 Cassidy-Gugich v R [2016] NZHC 3027.4 Solicitor-General v Nahu CA309/98, 28 October 1998.when it comes to sentencing, this is not a situation where I can give you any discountfor the guilty plea on the charge of unlawful possession of a firearm.[25] The maximum penalty for unlawful possession of a firearm is four years'imprisonment. For possession of methamphetamine of the quantity you had here,(1.5 grams), the maximum penalty for that offence is six months' imprisonment or$1,000 fine. For the possession of a pipe, the maximum penalty is one year'simprisonment.[26] You have recognised, while in prison, your use of methamphetamine hascaused you to offend. You told the probation officer, who prepared a report for theCourt in April, that you felt you were capable of non-abusive interaction withpartners and other people except when actively taking methamphetamine. The factyou planned to use methamphetamine after kidnapping your victim increased therisks for her. It increased the risk that you would do something dangerous andirrational. I thus treat your possession of the methamphetamine and the pipe as anaggravating feature of the offending.[27] The same applies with regard to your possession of the firearm. I accept thatyou handled that rifle and spoke of using it and the two bullets you showed yourvictim in a way that made her deeply fearful, although she was able to persuade youto put it down, away from her, which you did.[28] Through your counsel, you say your actions were drug and emotion fuelleddesperation and the events would not have taken place but for the drugs and the factyou had been on them for some time before what happened. In relation to that, Ishould say, it is not just because you were using drugs that this offending happened.It also happened because, somewhere in your mind, you thought it was alright foryou to use violence with your wife to get her to a position where you hoped shewould be with you and do things with you in the way that you wanted. It wasbecause you thought it was alright to treat her with the violence that happened thatthese events occurred. There are other people who have used drugs who do not havethat in their nature.[29] Your counsel suggested that the level of seriousness for kidnapping in thiscase meant that a starting point of three to four years is appropriate, beforeconsideration of aggravating and mitigating factors relating to you personally.[30] The Crown submits a starting point of four to four and a half years would beappropriate.[31] I consider the appropriate starting point for all offending is four years'imprisonment.[32] I must then consider whether there are any aggravating or mitigating featuresrelating to you personally. You know that Mr Jackson referred to matters which hewished me to take into account in that regard.[33] You have a limited conviction history which dates back to 1999. It includestwo convictions for assault, and drug and dishonesty related offending. Your currentconvictions are your first since 2009. Because of the historic nature of your assaultconvictions and the lack of other recent or relevant convictions, there are noaggravating features relating to you personally which would require an uplift on thestarting point sentence.[34] Mr Jackson referred to the way you have been a compliant prisoner and theway, while in prison, you have addressed your drug abuse issues. He referred to theclose relationship you have with your parents, the way they have been supportive ofyou and the way you were able to work well with your father in his loggingcontracting business so that, with your remand in prison, there has been a significanteconomic impact on both you and your parents. No doubt, when you think of that,you might also think of the impact your offending has had on your victim and herfamily and friends.[35] Your counsel has referred to an offer which was made through counsel foryou to be involved in restorative justice sessions with your victim. Not surprisingly,that was rejected by her. But can I say, you have heard the complainant, your victim,your wife, talk about the effect this offending had on her. You have heard her mothertalk about that. You should be able to understand how deeply fearful they are of youand, given the involvement of an associate in the offending, the way they might wellbe fearful of others who you can associate with in this town. As you continue toserve your sentence, you should be thinking about the effects all that has on themand you should be thinking of ways that you might be able to reassure them that theycan be safe. To do that, you will have to acknowledge the reality of the way youoffended. You will have to take responsibility for that. You will not be able to keepdenying your offending in the way that is apparent in the most recent report from theprobation officer.[36] What is of concern to me and what will be of concern to the Parole Board isyour seeming inability to acknowledge precisely what you did and the effect thiswould have had on your victim. To the probation officer, you denied responsibilityfor your offending and said that you did not believe you took the victim away againsther will although, at the same time, you told the probation officer you were unable torecall what happened. To the probation officer, you claimed to have encountered thevictim after returning to Timaru from a hunting trip and that you drove to the campsite in her vehicle where you simply engaged with your victim as a couple, all this,as I say, is despite the fact that you also say you cannot recall precisely whathappened.[37] Through your counsel, in his written submissions, it was apparent and it isapparent, consistent with what you said to the probation officer, you still deny thatyou had an associate drive the complainant's vehicle. It is not surprising that, withyour saying these things, your victim remains fearful of you but also, no doubt, yourassociates who you will be spinning this line to. There is nothing in the materialbefore me to indicate that you appreciate how totally wrong your actions were, howfrightening they would have been to your victim and how damaged she must bebecause of them. In reality, you have displayed a lack of remorse for what happened.That will be of relevance to the Parole Board but it is not to be seen as anaggravating factor relating to you personally that would require an uplift.[38] You pleaded not guilty on all charges other than the charge relating to thefirearm. Obviously, the discount that is normally available for a prompt guilty pleais not available for you.[39] This means that your end sentence, for all the offences for which you havebeen found guilty, is four years' imprisonment.[40] The Crown has suggested that, in the particular circumstances of this case,the Court should impose a minimum period of imprisonment. As of now, you havebeen in custody on remand for a little over 21 months. Without the imposition of aminimum term for longer than one third of the end sentence, you will be eligible toapply for parole immediately. That does not mean you will necessarily be grantedparole. Your current denial of the true nature of your offending may well be a factorfor the Board to consider carefully. In this regard, I note the submission that wasmade for you that what occurred might be considered a brief aberration. I do notaccept that submission. Your counsel referred to what had been a pattern ofpsychological abuse that had preceded the events at the end of November 2016.There had been that pattern. There had been the earlier incident where you hadended up again in the country with your victim.[41] If and when you are granted parole, you will be subject to specific pre-releaseconditions, a number of which will no doubt be intended to ensure your victim canfeel safe in the community in which she lives.[42] The Crown submits that, without the imposition of a minimum period ofimprisonment, a sentence would not hold you accountable for the harm done to thevictim and the community through the offending for which you have been convictedat trial. It submits that, given the degree of pre-meditation and your conduct towardsthe victim, a minimum term is required for the protection of both the victim and thecommunity. I consider that whether or not a minimum term is required has to beconsidered with regard to the particular circumstances of the offending, rather thanthe attitude which you still have now towards your offending.[43] Whether or not you are granted parole, you will be subject to the sentence ofthis Court for its full duration. The length of that sentence has been imposed for thepurpose of punishment, denunciation and deterrence. In the circumstances, I do notconsider that there are otherwise aggravating factors in your particular case, bycomparison with other offences of this type, that require a minimum term ofimprisonment to be imposed. I am not imposing a minimum term.[44] Mr Smith, please stand. On the charge of kidnapping, you are convicted andsentenced to imprisonment for four years. On the charge of unlawful possession of afirearm, you are convicted and sentenced to imprisonment for two months.[45] On each of the charges of possession of utensils for taking methamphetamineand possession of methamphetamine, you are sentences to one month'simprisonment.[46] All sentences are concurrent.[47] Kidnapping is an offence where, on conviction, you become liable to theparticular sanctions of the three-strikes legislation. I am now giving you a warningas to that. You will also be able to talk to Mr Jackson about what it meansafterwards.Judge gives first warning.[48] I also make an order for forfeiture of the firearm and the utensils formethamphetamine use.Solicitors:Gresson Dorman & Co., TimaruQuentin Hix Legal Ltd, Timaru.