MACEWAN v NEW ZEALAND POLICE [2019] NZHC 3320

MACEWAN v NEW ZEALAND POLICE [2019] NZHC 3320 [13 December 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000428[2019] NZHC 3320BETWEEN JAMES LOUIS MACEWANAppellantAND NEW ZEALAND POLICERespondentHearing: 10 December 2019Appearances: A Spika and G Vear for the AppellantK Tuiali and A Masters for the RespondentJudgment: 13 December 2019JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Friday, 13 December 2019 at 4.00 pmRegistrar/Deputy RegistrarSolicitors / Counsel:Public Defence Service, AucklandMeredith Connell (Office of the Crown Solicitor), Auckland[1] On 19 March 2019, James Louis MacEwan pleaded guilty to one charge ofmale assaults female. He subsequently pleaded guilty to two charges of failing toanswer District Court bail.[2] On 30 September 2019, he was sentenced to 10 months' imprisonment on thecharge of male assaults female. He was convicted and discharged on the two chargesof failing to answer District Court bail. Mr MacEwan now appeals against thesentence of 10 months' imprisonment.Facts of offending[3] Mr MacEwan and the victim were in a relationship. At the time of theoffending, they lived together in Morningside. The offending occurred at around7:45 pm on 26 November 2018. The victim was asleep in her downstairs room.Mr MacEwan launched an unprovoked attack on her, whipping her multiple times witha piece of clothing to her face. The victim woke up and fled to a neighbouring flat.[4] Mr MacEwan followed her to the flat and began knocking on the door. Afterabout 30 minutes, the victim returned to their flat to speak with him. He becameaggressive towards the victim again. She attempted to leave, but he placed her in ahead lock. He dragged her to the floor and held her in the head lock for about twominutes.[5] The victim bit Mr MacEwan and again attempted to leave, but he blocked herescape.[6] In her Victim Impact Statement, the victim writes that she has had enough. Shesays that Mr MacEwan has always treated her poorly, and that he needs to understandthat he cannot do this anymore.Decision on appeal[7] Mr MacEwan appeared before Judge Ronayne for sentence on 30 September2019.11 Police v MacEwan [2019] NZDC 19467.[8] Judge Ronayne identified the aggravating factors as being a serious, ongoing,persistent assault on a vulnerable victim. He noted the continued detention of thevictim. He also noted that the attack was to the victim's head.[9] Judge Ronayne adopted a starting point of nine months' imprisonment for themale assaults female charge. He considered that Mr MacEwan's remorse was late andunbelievable, and that he had shown no regard for the process involved. In recognitionof Mr MacEwan's "personal behaviour throughout this matter and the delays that thathas occasioned", as well as his criminal history, he added an uplift of three months'imprisonment.[10] A discount of two months was applied for Mr MacEwan's guilty plea and sothe end sentence imposed was 10 months' imprisonment.Submissions[11] Mr Spika advances three grounds of appeal. He submits that Judge Ronayneerred in adopting a manifestly excessive starting point, applying an uplift that was toohigh, and failing to provide credit for remorse.[12] In relation to the starting point, Mr Spika draws attention to Wawatai v Police,and Police v Vuetaki.2 He submits that Mr MacEwan's offending is comparable ingravity to the offending in those cases. He draws attention to the starting point ofseven months' imprisonment adopted in Wawatai, and the community work sentenceimposed in Vuetaki. Accordingly, he submits that an appropriate starting point wouldhave been six months' imprisonment.[13] On the issue of uplift, Mr Spika submits that an uplift for the appellant'sbreaches of bail conditions, failures to appear, and prior convictions was inappropriate.He submits that the breaches caused no delay to the proceeding. In relation to thefailures to appear, Mr Spika notes that Mr MacEwan was convicted and dischargedfor those offences. He submits that at most, those charges may be worthy of aone month uplift.2 Wawatai v Police [2015] NZHC 406; Police v Vuetaki [2016] NZHC 2515.[14] He also submits that Mr MacEwan has no relevant violent convictions.Accordingly, he submits that no uplift for Mr MacEwan's criminal history wasappropriate.[15] Finally, Mr Spika submits that Mr MacEwan has displayed genuine remorse.In support he points to the Provision of Advice to Courts (PAC) report, as well as aletter which Mr MacEwan provided to the court. He submits that a discount of onemonth was appropriate.[16] Accordingly, he submits that an end sentence of four to five months'imprisonment would have been appropriate.[17] The Crown submits that the sentence imposed was well within the acceptablerange. The Crown submits that Mr MacEwan's offending was akin to offending inKelly v R, and in Parsons v Police, where a nine month starting point on a male assaultsfemale charge was adopted.3 The Crown submits that the cases referred to by theappellant are distinguishable, and that Mr MacEwan's offending warrants a higherstarting point than was adopted in Wawatai and in Vuetaki.[18] On the issue of uplift the Crown submits that three months was stern, but withinan acceptable range. The Crown draws attention to Mr MacEwan's failure to answerbail on three occasions, and that he had been arrested and brought before the court forbreaching bail on eight other occasions. The Crown acknowledges that these breachesdid not delay the proceeding, but submits the appellant's failure to appear did. TheCrown acknowledges that Mr MacEwan has no prior violent convictions, but submitsthat he does have convictions from 2017, which justify a modest uplift to reflect theprinciple of deterrence against future offending.[19] The Crown also submits that Judge Ronayne was right to refuse to give adiscount for remorse. The Crown draws attention to the judge's comments, describingthe letter supposedly demonstrating remorse as "late", and "unbelievable". TheCrown submits that on evaluation of all the circumstances; the breaches of bail and3 Kelly v R [2018] NZCA 347; Parsons v Police [2018] NZHC 2214.the comments to the PAC report writer, that Mr MacEwan showed little genuineremorse. Accordingly, no discount for remorse was available.DecisionApproach on appeal[20] The appeal is brought under s 250 of the Criminal Procedure Act 2011. Itprovides:250 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section(2) The first appeal court must allow the appeal is satisfied that–(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.(3) The first appeal court must dismiss the appeal in any other case.[21] An appeal court must allow an appeal if satisfied that for any reason, there isan error in the sentence imposed on conviction, and that a different sentence shouldhave been imposed. Whether a sentence is manifestly excessive is examined in termsof the end sentence reached, rather than through the process by which it was reached.4Personal circumstances and reports[22] Mr MacEwan is a 36 year old man, of Tuhoe descent on his father's side andScottish on his mother's. He has a limited criminal history of 32 convictions.Possession of methamphetamine or drug utensils features. As do failures to appearand breaches of community work. This is his first conviction for violent offending.[23] A PAC report has been provided. It is dated 23 September 2019. The writerassesses him as having a medium risk of re-offending based on the number andfrequency of his previous offences.4 Tutakangahau v R [2014] NZCA 279 at [36].[24] In his interview with the writer, Mr MacEwan described the victim as a violentwoman and said that he was defending himself. He had said that at one stage shethrew a glass vase at him and came at him with a knife. Later in the interview he hadsaid that he was not proud of himself, and that he believes "women should be placedon a pedestal and a man has no right to do what I did, whatever the provocation".[25] The writer noted that Mr MacEwan's offending related factors wereentitlement and methamphetamine. Mr MacEwan indicated to the writer that he hasbeen unemployed for the last few years. He believes that this is due to his intermittentdrug problems. He also indicated that his father, who lives in Australia, has terminalcancer. This, he says, is what caused him to begin using methamphetamine recently.Analysis[26] There is no guideline judgment for male assaults female cases. Each must beconsidered on its own facts.5[27] The first case which Mr Spika draws attention to is Wawatai v Police.6Mr Wawatai had been convicted of one charge of male assaults female. The offendingarose from an incident at Mr Wawatai's house with his partner. He had been drunk.During an argument, he punched his partner in the face with a closed fist. One of hisfamily members was present, and tried unsuccessfully to take him aside. Mr Wawataiattempted unsuccessfully to land further punches. His partner suffered a blood noseand swelling. Courtney J considered that an appropriate starting point would havebeen seven months' imprisonment.[28] Mr Spika also draws attention to Police v Vuetaki.7 Mr Vuetaki had also beenconvicted of male assaults female. He and his wife had been arguing at their home.The victim had been holding their nine-month old daughter. Mr Vuetaki pushed awooden highchair which struck the victim' feet. He then advanced on her, yelling ather. He slapped her on her left cheek and ear, then grabbed their daughter from her.5 Kelly v R [2018] NZCA 347 at [10].6 Wawatai v Police [2015] NZHC 406.7 Police v Vuetaki [2016] NZHC 2515.This caused the victim to fall to the ground. He clipped her on the back of the headwith his open hand.[29] The two continued their argument in the bathroom. The victim slappedMr Vuetaki on his face. He then slapped her. After more arguing, the victim attemptedto leave the address. Mr Vuetaki grabbed her left wrist, pushed her into some bushesand restrained her for a short period of time until she accepted his apology. When theywent back home, he clipped her on the head once more. The sentenced imposed atfirst instance was 130 hours' community work, which was not disturbed on appeal.[30] I do not consider this case to be particularly helpful. First, that it was aprosecutor's appeal. A prosecutor's appeal requires circumstances which are morecompelling than those which might justify a reduction.8 Second, even with this inmind, Gendall J still considered the appeal to be a "finely balanced one",9 lateragreeing with counsel that the sentence was "merciful".10 It is also important to notethe unique personal circumstances of Mr Vuetaki, in that he was to be imminentlydeported back to Fiji away from his family.[31] The first case relied upon by the Crown is R v Kelly.11 Mr Kelly had beencharged with a raft of violent offences against his partner. Included were two chargesof male assaults female. Mr Kelly had been arguing with his partner. He headbuttedher. The victim left, and later returned expecting an apology. Instead, she was againheadbutted, apparently twice as hard as the previous one. The victim stated that she"saw stars". The sentencing judge adopted a starting point of nine years'imprisonment each on the male assaults female charges. On appeal, Mr Kelly arguedthat the starting points adopted on the male assaults female charges was too high. TheCourt of Appeal dismissed the appeal, remarking that he was fortunate to have theheadbutts charged as male assaults female, and note the potential for a headbutt tocause serious injury, particularly when the assailant is much larger than the victim.128 R v Wihapi [1976] 1 NZLR 422 (CA).9 Police v Vuetaki [2016] NZHC 2515at [10].10 At [21].11 Kelly v R [2018] NZCA 347.12 At [11].[32] The Crown also refers to Goodman v R.13 Mr Goodman was convicted ofassault with intent to injure and male assaults female. The charges arose out of anargument which Mr Goodman had with his partner. He grabbed her around the throatand threw her across the room. When she tried to get to her feet he pushed her over.This assault continued until he pushed her outside. This gave rise to the first charge.The second arose from what happened outside. Mr Goodman pushed her, knockingher over. He then kicked her to the shoulder. The victim fled to the car and attemptedto call the police. Mr Goodman tried to get into the car. The sentencing judge dealtwith the male assaults female charge through a 12-month uplift, which was reducedfor totality. The sentence was not disturbed on appeal. However, whether the 12-month uplift would have been appropriate was not discussed.[33] Finally, the Crown refers to Parsons v Police.14 Mr Parsons was sentenced onthree charges of male assaults female. The victim was Mr Parsons' partner.[34] At the time of the first attack, the victim was asleep in her bed. Mr Parsonswoke her up, and eventually began verbally abusing her. The victim tried to leave.Mr Parsons pushed her in the chest, causing her to fall backwards. He punched her inthe jaw, causing her to fall back against a wall. He then grabbed her arm causing herto drop her keys. The victim fled the room. When she came back to get her keys,Mr Parsons punched her in the face, knocking her to the floor. This attracted a startingpoint of nine months' imprisonment.[35] About a month later, the two were on a public street. They began to argue.They struggled over an EFTPOS card, and the victim fell to the ground. When shegot up, Mr Parsons punched her once in the head, causing her to fall back to the ground.This attracted a starting point of six months' imprisonment.[36] The third assault was four days later. The two were on a trip to Wanaka fromDunedin. On the way back to Dunedin they visited an Information Centre to use theinternet. They had an argument. The victim hit Mr Parsons. He retaliated by pinning13 Goodman v R [2016] NZCA 64.14 Parsons v Police [2018] NZHC 2214.her against a wall and striking her with a closed fist. She broke free and fled to aneighbouring business. This attracted a starting point of nine months' imprisonment.[37] On appeal, Mander J considered that the starting points taken could beconsidered generous. He did not consider that the overall sentence should bedisturbed, and dismissed the appeal.[38] Considered alongside the cited cases, I consider an appropriate starting pointfor Mr MacEwan's offending would have been seven months' imprisonment. Hisoffending was about on par with that of Mr Wawatai, but less serious than that ofMr Kelly and Mr Parsons, which incurred a nine-month starting point.[39] It is important to note that Mr MacEwan's offending began with whipping herface with a piece of clothing. This is less serious than closed fist punches to the face,and headbutts, to which counsel refer. Whilst I acknowledge that holding of the victimin a headlock is serious, I do not consider that this was a particularly brutal attack.This is reflected in the minimal injuries to the complainant. That warrants recognitionand is immediately a point of distinction from Messrs Wawatai, Kelly and Parsons.[40] However, the prolonged nature of Mr MacEwan's attack also warrantsrecognition. His persistence in following her after she had originally left would havebeen a frightening ordeal for the victim. Despite the comparative lack of brutality, Iconsider that this factor justified a starting point equivalent to that imposed onMr Wawatai.[41] On the issue of uplift, I also agree with Mr Spika. Judge Ronayne uplifted thesentence by three months, on a starting point of nine months, to reflect Mr MacEwan'spersonal behaviour; delays that had occasioned, and his prior criminal history.[42] I do not consider an uplift was warranted for MacEwan's personal behaviourand delays. Judge Ronayne imposed the uplift under s 9(1)(k) of the Sentencing Act2002. Although Mr MacEwan breached his bail conditions on numerous occasions,there was very little delay in the disposition of the proceedings. On 8 January 2019,he failed to appear, but was arrested three weeks later and brought before the Court.There was also a delay of one week when he came to Court on 27 August 2019, butchose to leave before his case was called. He was arrested on 3 September 2019 andremanded in custody for sentence on 30 September 2019. Judge Ronayne convictedand discharged Mr MacEwan on two charges of failing to appear.[43] Mr MacEwan does not have a relevant criminal history. This is his firstconviction for violent offending. What he has, are convictions for breaches ofsupervision orders, community work, and failures to answer bail. He has a fewconvictions for dishonesty offences. Most worryingly are the convictions relating tothe possession of methamphetamine. But these do not justify an uplift for deterrentpurposes. What this suggests is that violent offending is out of character forMr MacEwan. I therefore do not consider that his criminal history warranted an uplift.[44] On the issue of genuine remorse, I consider that Judge Ronayne's assessmentshould not be disturbed. He was in a better position to assess how Mr MacEwanreacted. I agree that the letter presented by Mr MacEwan, when seen in the context ofhis previous statements, could be seen as manipulative at worst and late at best. Iconsider it was open to Judge Ronayne to refuse a discount for remorse.[45] In summary, I consider that the starting point adopted in the District Court wastoo high. Additionally, an uplift was not warranted.[46] The appropriate starting point was seven months' imprisonment. With thelowered starting point, the removal of the uplift, and the 15 per cent discount for theguilty plea, the appropriate end sentence is six months' imprisonment.Result[47] The appeal is allowed.[48] The District Court sentence is quashed. In its place, I impose a sentence of sixmonths' imprisonment on the charge of male assaults female._________________________Woolford J