WHITE v NEW ZEALAND POLICE [2020] NZHC 1535

WHITE v NEW ZEALAND POLICE [2020] NZHC 1535 [2 July 2020]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2020-425-000009CRI-2020-425-000010[2020] NZHC 1535BETWEEN JAKE JAMES WHITEAppellantAND NEW ZEALAND POLICERespondentHearing: 29 June 2020Appearances: K E Tohill for AppellantR W Donnelly for RespondentJudgment: 2 July 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 2 July 2020 at 11.00 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate 2 July 2020Introduction[1] Jake White pleaded guilty to three breaches of a protection order as well ascharges of receiving stolen property and unlawfully getting into a motor vehicle. Hewas sentenced by Judge Turner to two and a half years' imprisonment.1 Mr Whitenow appeals that sentence on the basis that it was manifestly excessive.1 Police v White [2020] NZDC 6094.Facts[2] A temporary protection order was issued against Mr White on 1 June 2018 inrespect of the victim, who is his former partner and the mother of his child. That orderbecame final on 5 October 2018.[3] On 16 October 2019, Mr White sent the following text message to the victim:I will make sure my suicide note will make people look at you and make yourlife hell as you struggle as a single mum that drove your baby's dad end it andtake the ezy way out.[4] On 7 December 2019, while remanded in Milton Prison, Mr White arrangedfor a text message to be sent to the victim saying she would receive a phone call fromthe prison. The victim replied that she would not answer. The following morning, thevictim received two phone calls from the Milton area. She did not answer either. Laterin the day she received a text saying "Jake asked if you could please answer", andfour minutes later she answered a call without realising it was from Mr White. Theyspoke for about 12 minutes before the victim ended the call.[5] The third protection order breach arose when Mr White, on 4 April 2020,arranged for his father to contact the victim to make arrangements for him to see hischild. Mr White's father sent an email to the victim on 6 April relaying his message.[6] Between 2 and 3 October 2019, a caravan was stolen from a property inCromwell. In the early hours of 3 October, Mr White and an associate drove to a laybyon the Cromwell/Alexandra highway and met up with two people who were inpossession of the stolen caravan. Mr White attached the caravan to his car beforedriving south towards Roxburgh. The caravan has not been recovered.[7] At around 3.30 am on 3 October, Mr White realised his vehicle had a flat tyre.He entered the driveway of a nearby property where he opened an unlocked door of aparked car. He took a toolbox from the car and removed some items, but left them inthe vehicle after finding they were unsuitable for changing his flat tyre.District Court decision[8] Judge Turner noted that Mr White has previous convictions for family harmoffending, including unlawful possession of a firearm, threatening to kill involving afirearm, injuring with reckless disregard and assault. The victim, in her impactstatement, referred to the significant emotional and psychological consequences to herfollowing receipt of Mr White's text message on 16 October.[9] For context, the Judge discussed the incidents which he understood resulted inthe protection order being issued. On one occasion, Mr White put a shotgun in hismouth in front of the victim and their baby and threatened to kill himself. On anotheroccasion, he video-called the victim and told her that if she did not reconcile with him,he would shoot himself. He raised a .22 rifle to his head and put the phone down. Thevictim heard a shot and then heard something dropping to the ground. About a minutelater, Mr White picked up his phone and said: "See how you feel if I do it. Comehome." Judge Turner accepted that Mr White's message of 16 October brought backthose memories for the victim, and caused her significant emotional and psychologicaldamage.[10] The Judge referred to the pre-sentence report. He noted Mr White was servinga sentence of intensive supervision at the time of the offending, and that while hisengagement with that sentence was described as excellent, he had also tested positivefor methamphetamine use and committed the present offences. The Judge notedMr White effectively blamed the victim for his offending, stating that she had "pushed[him] over the edge". His risk of re-offending was assessed as medium, though theJudge considered it was "considerably higher" than that with regard to the victim. TheJudge also noted that Mr White expressed to the report writer a desire to turn his lifearound and be a positive role model for his child.[11] Judge Turner began by adopting a starting point of 10 months' imprisonmentfor the receiving charge, taking into account Mr White's unwillingness to assist in therecovery of the caravan and the consequences of the offending to the caravan's owners.He uplifted that by three months for the charge of unlawfully getting into a motorvehicle.[12] Turning to the protection order breaches, the Judge considered the text messageof 16 October to be "plainly threatening in nature" and classed it as serious offending.He found there was significant psychological violence involved, and adopted a startingpoint of 14 months' imprisonment for that breach. For the second breach, on a totalitybasis, he adopted a six-month starting point. For the third breach he added a furtherthree months, resulting in a total starting point of 36 months' imprisonment.[13] The Judge uplifted that starting point by three months given the offendingoccurred while Mr White was on sentence for family violence, and four months giventhe protection order charges arose while he was either on bail or in custody and inbreach of a condition not to contact the victim. He declined to impose an uplift forprevious convictions given there were none of a similar nature to the current charges.[14] In regard to mitigating factors, the Judge considered Mr White's relative youth(he was 24 years old) and wish to rehabilitate, but balanced that against his lack ofremorse and blaming of the victim. A five per cent discount was allowed. In addition,the Judge allowed a 25 per cent discount for guilty plea despite the case againstMr White being overwhelming. That resulted in an end sentence of two years andsix months' imprisonment.Principles on appeal[15] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed. 2 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".3 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.42 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].SubmissionsAppellant's submissions[16] Mr Tohill, for Mr White, primarily challenges the starting points adopted forthe breach of protection order charges. He accepts that the first breach represented aserious form of psychological violence. Mr Tohill submits however that the breachwas only a text message, and was not accompanied by the physical presence ofMr White. While the Judge made comments in regard to previous family violencetowards the victim, none of those incidents were the subject of charges; Mr White'sprevious convictions for family violence involved an altercation with his parentsinvolving firearms, and not the victim.5[17] To support his submission that the starting point was too high, Mr Tohill relieson Narayan v Police, in which Mr Narayan breached a protection order by going tothe address of the victim at 3 am, obtaining a machete from the garden shed, and tellingthe victim that he wanted to kill himself.6 The next morning, Mr Narayan contactedhis former wife from prison asking to speak to the victim and the children. TheHigh Court upheld a starting point of 12 months' imprisonment for the first breach,with a three-month uplift for the second. Mr Tohill submits that, based on Narayan,the appropriate starting point for the first breach in this case would be 12 months.[18] In regard to the second and third breaches, Mr Tohill submits they were minorbreaches and there is no indication they involved threats. He states that whileMr White was on remand at the Otago Corrections Facility, the victim sent him mailincluding clothes and slippers. Mr Tohill contends the second breach warranted afour-month starting point, and the third breach, which was a "technical" breach onlyinvolving contact by Mr White's father, a one-month starting point.[19] Mr Tohill then submits that the three-month uplift for "deterrence" wasunwarranted, and the four-month uplift for offending while on remand was too high.He notes that the offending for which Mr White was serving sentence did not concern5 This was confirmed by provision of the summary of facts for this offending which occurred inFebruary 2018.6 Narayan v Police [2014] NZHC 1241.the victim, and that Mr White has since reconciled with his parents, who were thecomplainants in those charges. Mr Tohill further contends that the motivation behindthese charges, as well as the 2018 charges, was Mr White's addiction tomethamphetamine, which, along with his lack of prior breaches or offending againstthe victim, suggests the four-month uplift was not justified. Mr Tohill submits atwo-month uplift would be more appropriate.[20] Finally, Mr Tohill submits that the charges of receiving and unlawfully enteringa vehicle should not have attracted cumulative sentences. He notes that that offendingoccurred at the same time, and that while counsel does not wish to overturn the startingpoints taken for those charges, he submits that the Judge erred in his decision not toimpose the three months' imprisonment for unlawful entry concurrently with the10 months' imprisonment for receiving. Mr Tohill adds that it was within the Judge'sdiscretion to order that the sentences for breach of protection order be servedconcurrently.Respondent's submissions[21] Mr Donnelly, for the respondent, submits that Turner v Police is highlyrelevant.7 In that case Mr Turner breached a protection order by sending a text messageto the victim that said:8You are a lying, cheating evil person. Other than my wonderful daughter Iwish I had never met you. You stole my heart, my house, my soul, but worstof all you stole my children. How can you live with the knowledge that youhave destroyed me? I am at the doctors at 9.30 Wednesday, I want someanswers. You are not a Christian.[22] The High Court in Turner said a starting point of 14-15 months' imprisonmentwould be appropriate. Mr Donnelly submits the present offending was more seriousbecause it was more sinister and threatening, and was sent for the sole purpose ofcausing serious psychological harm. Turner, however, contained mitigating factorssuch as Mr Turner having recently lost contact with his child. Mr Donnelly thereforecontends that the first breach alone could attract a starting point of 18 months'imprisonment, so the starting point adopted by Judge Turner was lenient. He submits7 Turner v Police [2017] NZHC 1113.8 At [17].that, in that context, the uplifts of six months and three months for the othertwo breaches were appropriate.[23] Mr Donnelly submits a cumulative sentence would ordinarily be appropriatefor the balance of the offending. In Ellis v R the Court of Appeal considered a startingpoint of 18 months' imprisonment, while stern, was within range for a single chargeof receiving $5,000 worth of property.9 Mr Donnelly therefore submits that in thepresent case, where Mr White received a caravan worth $6,000 and also unlawfullyentered a vehicle, the starting point adopted of 13 months was well within range.[24] In regard to uplifts, Mr Donnelly accepts that the seven-month uplift foroffending while on sentence, and for the offending while in custody or on bail, couldbe said to be excessive. However, given the leniency of the starting points, and thelack of an uplift for previous convictions, he submits the overall sentence was notmanifestly excessive.Analysis[25] Mr Tohill does not challenge the starting points adopted for the charges ofreceiving and unlawfully entering a vehicle, and I agree that they were well withinrange. The decision in Ellis, cited by Mr Donnelly, is highly relevant given the similarvalue of property received, the proximity in time between the burglary and thereceiving, and the fact that the property had some sentimental value.10 On the basis ofEllis, where a starting point of 18 months was upheld on a charge of receiving $5,000of stolen property, a starting point higher than 13 months could have been adopted forthe totality of these two charges. Thus, whether the sentences were imposedcumulatively or concurrently on these two sentences, I am satisfied that the totality ofthe starting point was well within range.[26] The Judge was correct to deal with the protection order breaches cumulativelyon the receiving and unlawful entry charges. The protection order breaches9 Ellis v R [2012] NZCA 513.10 Ellis v R, above n 9.represented offending that was both different in kind and wholly unconnected to theother charges, and Mr White does not challenge this.11[27] Mr Tohill's submissions instead are centred on the starting point of 14 monthsadopted for the first breach of protection order, being Mr White's text to the victim on16 October. His reference to Narayan is compelling, as the circumstances in that casemay appear more serious than the present.12 The threats made by Mr Narayansimilarly related to him committing suicide, but were heightened by his physicalpresence at the victim's house while holding a machete. A starting point of 12 months'imprisonment was upheld for that offending alone.[28] Mr Donnelly has responded with reference to Turner, a case that similarlyconcerned a threatening text message, where the Court adopted a starting point of14-15 months.13 I accept Mr Donnelly's submission that Mr White's message wasmore sinister than that in Turner given it involved the threat of suicide. However, itmust also be noted that the starting point in Turner took into account Mr Turner's11 previous convictions for breaching protection orders, which understandablyresulted in a relatively high starting point. That was then also mitigated somewhat byfactors such as the motivation for the offending.[29] In the present case, the Judge correctly identified Mr White's text message asintending to inflict psychological violence on the victim, and succeeding in causingher significant emotional harm. His similar previous behaviour of threatening suicideto compel her to act in the way he wanted was relevant to the gravity of this offending.Having considered the cases above, as well as others helpfully cited by Mr Tohill,14 Iconsider an appropriate starting point for the first breach would have been 12 months.[30] There is also merit in the submission that the uplifts for the second and thirdbreaches were excessive. In Toko v Police, a three-month uplift was applied for theappellant writing letters to the victim from prison, while in Narayan a three-month11 Sentencing Act 2002, s 84.12 Narayan v Police, above n 6.13 R v Turner, above n 7.14 Irvine v Police [2017] NZHC 3085; Hamilton v Police [2014] NZHC 2698; and Mataiti v Police[2014] NZHC 1675.uplift was applied for Mr Narayan asking another person to contact the victim forhim.15 In the present case, with regard to totality, I would apply an uplift offive months for the second and third breaches together. That would bring the overallstarting point for the protection order breaches to 17 months' imprisonment.[31] Combined with the starting point for the receiving and unlawful entry offences,the total starting point would therefore be 30 months. I would not reduce that on thebasis of totality given, as stated above, the separate nature of the offending.[32] I also consider the seven-month uplift in this case for the fact of offendingwhile on a sentence of intensive supervision and while on bail or in custody is a littlehigh. However, the Judge would have been entitled to impose an uplift for previousoffending given Mr White had prior convictions for family violence. I do not considerthe fact this relates to different victims is particularly relevant. A seven-month upliftfor those combined factors would be appropriate so I do not disturb this uplift. Thediscounts allowed by the Judge for personal mitigating circumstances (five per cent),and guilty plea (25 per cent) were similarly appropriate.[33] Based on my analysis, the total starting point would be 37 months and the endsentence, after the discounts of five per cent and 25 per cent are taken off in sequence,is 26 months' imprisonment. That is materially different from the sentence of30 months imposed in the District Court and I am satisfied the sentence was thereforemanifestly excessive.Conclusion[34] The sentence of two years and six months' imprisonment is set aside andsubstituted with a sentence of two years and two months' imprisonment. In all otherrespects the sentence is unaltered.Solicitors:Kieran Tohill Law Ltd, AlexandraPreston Russell, Invercargill15 Narayan v Police, above n 6; Toko v Police [2012] NZHC 1900.