TURNER v POLICE [2017] NZHC 1113

TURNER v POLICE [2017] NZHC 1113 [26 May 2017]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYCRI-2017-470-10[2017] NZHC 1113BETWEEN HOWARD GARTH TURNERAppellantAND NEW ZEALAND POLICERespondentHearing: 26 May 2017Counsel: V T Winiata for AppellantA J Pollett for RespondentJudgment: 26 May 2017JUDGMENT OF BREWER JSolicitors/Counsel:V T Winiata (Tauranga) for AppellantHollister-Jones Lellman (Tauranga) for RespondentIntroduction[1] Mr Turner appeals a sentence of 13 months' imprisonment imposed on himby Judge SJ Coyle in the District Court at Tauranga on 14 March 2017.1 His appeal is brought on the basis that in all the circumstances a term of imprisonment of that length is manifestly excessive.[2] The offence for which Mr Turner was sentenced was breaching a protection order. The maximum term of imprisonment is three years.District Court[3] Judge Coyle was principally concerned about two matters. The first is that Mr Turner had 11 previous convictions for breaching protection orders. The second was the bleak assessment contained in the PAC report. As a consequence, Judge Coyle decided that deterrence must be a significant focus of his sentence.[4] The way in which Judge Coyle regarded Mr Turner's situation is captured bythe following paragraph from the Judge's sentencing notes:2Mr Winiata, in his submissions, said that this is the first breach in relation to this victim but all that indicates to me is that you have a sustained pattern of breaching protection orders and showing total disregard over a longitudinal period. That really highlights your risk, in my view, because for a number of different women you have breached the orders that they have obtained –orders which are there to protect them. That really goes a long way to bolstering the concerns expressed by the author of the PAC report about your sense of entitlement and your attitude.[5] As I will come to, the particular breach of the protection order was the sending of a text message to the victim. This breached the prohibition on making contact. Judge Coyle recognised that this was not the most serious form of breach, itwas not physical abuse or sexual abuse. However, in Judge Coyle's view, "anyonewith any basic understanding of the dynamics of domestic violence would know that is as damaging as a physical assault to victims of violence".31 Police v Turner [2017] NZDC 5324.2 At [11].3 At [15].[6] Accordingly, Judge Coyle set a starting point of 18 months' imprisonment,which he reduced by 25 per cent to take into account Mr Turner's guilty plea. Thatresulted in an end sentence of one year and one month imprisonment. Judge Coyle also imposed the release conditions recommended in the PAC report for six months after the sentence end date.Discussion[7] My task on appeal is to assess whether the sentence should stand. The law is still that the threshold where length of sentence is at issue is whether the sentence appealed against is manifestly excessive. It does not really matter how the sentencing Judge arrived at his end point, although of course if there is error demonstrated that will affect the analysis of what is manifestly excessive.Nevertheless, it is the end point, in this case 13 months' imprisonment, to which Imust have regard.[8] There is no tariff case for this sort of offending. It is a matter of applying the first principles of sentencing. One way of putting the issue is whether, against apossible maximum sentence of three years' imprisonment, Judge Coyle erred inadopting the mid-point of 18 months' imprisonment as a starting point.[9] The position is complicated because the increased scrutiny of the case brought about by the appellate process has led to the identification of factors which were either not known to Judge Coyle or were not taken into account. Materially, these are.[10] First, Judge Coyle appears to have sentenced on the basis that this was the first breach of the protection order in respect of this victim. However, it was not. As is now accepted, it was the fourth breach of the protection order. It is also accepted that the other breaches of protection orders related to two other victims.[11] There are mitigating circumstances also. First, it is now apparent that the present breach in relation to this victim occurred after a hiatus of four years from the previous breach against this victim. Second, the catalyst for the breach was that theappellant's contact with the 12 year old daughter he shares with the victim hadrecently been cut off. He had stewed mentally about that cessation of contact for some weeks before he sent the text message. Third, he had been aware of his obligations under the protection order and had taken steps (albeit themselves in breach) to prevent physical contact between himself and the complainant. Heattended a medical centre adjacent to the victim's place of work. Her work involvedthe medical centre.[12] Mr Winiata attached to his submissions on appeal a copy of the victim'sstatement to the Police about this matter. She said:Garth will text me to say that he has an appointment and I make it my business not to be around at the time so as not to present an opportunity to run into him.[13] I accept Ms Pollett's submission in reply that this does not mean that thepractice adopted by Mr Turner did not impose additional and unwanted stress on the victim.[14] Current sentencing methodology usually involves a sentencing Judge first assessing the culpability of the offender in respect of the offence for which they are to be sentenced. That is to say, the circumstances of the offence are assessed to decide a suitable starting point for the sentence. Then, factors personal to the offender are taken into account, either in aggravation or mitigation. That then determines the end point.[15] In this case, Judge Coyle felt it would be artificial to do anything other than adopt a starting point having regard to Mr Turner's history of breaching protectionorders. The Judge's view was that it was the overall picture that had to be looked atin order to assess a starting point. I agree with Judge Coyle in this respect. It would have been artificial to look at this particular breach of the protection order in isolation and then assess the other breaches as an aggravating factor. In essence, the Judge looked at the culpability of Mr Turner for all his history of breaches of protection orders and used that to fix the starting point against the sentencing range available to him which would at one end come up against the maximum penalty ofthree years' imprisonment.[16] In deciding whether the starting point adopted by Judge Coyle was appropriate, I am going to conduct the same exercise but against my knowledge of the factors set out above which were not known to Judge Coyle.[17] I start with the text message:You are a lying, cheating evil person. Other than my wonderful daughter I wish I had never met you. You stole my heart, my house, my soul, but worst of all you stole my children. How can you live with the knowledge that you have destroyed me? I am at the doctors at 9.30 Wednesday, I want some answers. You are not a Christian.[18] As Mr Winiata submits, this must be taken as offensive and derogatory, butthe only portion that could be taken as threatening is the phrase "I want some answers".[19] The complainant, in her victim impact statement, said:I have suffered for years from the psychological abuse of Garth. He has to always be in control. He is narcissistic and I have had enough. I am finally ina good place and my daughter is in a good place and don't need this carry onby Garth. He knows what he has to do if he wants to see his daughter but when he acts this way I feel he is a risk to me and our daughter.[20] The PAC report is relevant, as Judge Coyle recognised. In the view of theauthor, Mr Turner showed no remorse for his offending, stating "the text had been running through his mind for weeks and gradually getting worse". He commented that he had been having a bad day and minimised his actions by saying that his breaches have never been more than a text or a phone call. He was assessed as being at high risk of re-offending, as reflected in his criminal history and his current attitude towards his offending and victim. He was assessed as being at a high risk of harm to others due to his inability to manage unresolved issues towards his victim. I pause to note that there have been mental health concerns.[21] Under the heading "attitudes", the author of the report says:Mr Turner continues to ignore the protection orders in place and remains rigid in his belief that he is being victimised by his ex partner. He exhibits a strong sense of entitlement around his perceived right to contact his ex partner and is prepared to do so in order to make his thoughts and feelings known to the recipient regardless of the consequences. Mr Turner exhibitedsigns of anger and resentment towards his ex partner. He admits to feelings of grief and loss relating to his daughter not wishing to have contact with him and the protection order which stands. Along with this a true sense of anger is evident. He believes that his ex partner has an influence over this outcome. Mr Turner appears to have no insight into how his actions prevent him from being able to have healthy ongoing relationships with others in his life. He presents as a highly emotional person who constantly brews on this situation and chooses to continually act in an impulsive manner.[22] Against the identification of the nature of the offending for which he has tobe sentenced and his attitude as assessed by the PAC author, Mr Turner's criminalhistory must be examined.[23] Mr Turner is an adult male aged 54 years. He has a lengthy criminal history with a number of convictions for violence at the common assault level. He committed breaches of protection orders on the following dates: 24 August 2011, 28 November 2011, 11 January 2012, 15 January 2012, 8 February 2012, 21 April 2012, 21 September 2012, 28 November 2012, 18 January 2013, 30 May 2013 and 15 January 2016. The breach for which he was being sentenced occurred on 6 December 2016.[24] For all of the breaches of protection order, save the one on 15 January 2016, Mr Turner was sentenced to short terms of imprisonment. For the breach which occurred on 15 January 2016, he was sentenced to a period of four months'community detention.[25] As I have said, it is accepted that the breaches of protection orders relate to three different women, one of whom is the victim. The breaches in respect of herwere on 28 November 2011 (three months' imprisonment), 15 January 2012 (nine months' imprisonment) and 21 September 2012 (two months' imprisonment). I notethat in the second and third previous breaches, Mr Turner was being sentenced also on other charges.[26] Mr Winiata's submission is that the great majority of the previous breachesoccurred in a period of some 21 months. They slowed markedly in 2013 and for a period of nearly three years there was no recurrence. So far as this victim isconcerned, there was a four year hiatus between the last instance of offending and the current instance of offending.Decision[27] My assessment is that a further short term of imprisonment was inevitable. I have found that Judge Coyle was correct to assess a starting point on first principles having regard to Mr Turner's history of breaching protection orders. Deterrence anddenunciation are, as Judge Coyle recognised, important features of sentencing in this area. Further, because protection orders are put in place to protect victims, or potential victims, of potential violence, the Court must be vigilant to ensure that they are effective. As Judge Coyle recognised, Mr Turner had not learned from repeated sentences of imprisonment for his previous offending.[28] I accept that Judge Coyle did not know as much as I do about the background to the offending. In my view, it was not a breach at the serious end of the spectrum. It came 11 months after Mr Turner's last previous breach, but that must have been a very limited breach in order to attract a sentence of community detention. I find that the circumstances that led to the breach are also relevant because this was not amalicious breach. I accept also Mr Winiata's submission that, at the age of 54 years, Mr Turner is slowing down in his offending.[29] Taking all these matters into account, I find that the starting point of 18 months was too high and the end sentence of 13 months is manifestly excessive.[30] In my view, a starting point in the region of 14-15 months' imprisonment wascalled for and, applying a suitable discount for the early plea of guilty, an endsentence of no more than 11 months' imprisonment was called for.[31] I do not think this is tinkering. A two month reduction from 13 months is a significant one.[32] Accordingly, I allow the appeal. The sentence of 13 months' imprisonment is quashed and a sentence of 11 months' imprisonment is substituted.[33] The portion of the sentence imposing release conditions for six months is sustained and will continue in force.________________________________Brewer J