O’KEEFE v NEW ZEALAND POLICE [2021] NZHC 1613

O'KEEFE v NEW ZEALAND POLICE [2021] NZHC 1613 [1 July 2021]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2021-441-11[2021] NZHC 1613JAMES WILLIAM O'KEEFEvNEW ZEALAND POLICEHearing: 1 July 2021Appearances: R B Phillips for AppellantM Mitchell for RespondentJudgment: 1 July 2021JUDGMENT OF COOKE J[1] Mr James O'Keefe appeals against his sentence of two years and three months'imprisonment on charges of:1(a) assault in a family relationship;2(b) two breaches of a protection order;3(c) attempting to pervert the course of justice.41 R v James William O'Keefe [2021] NZDC 9891.2 Crimes Act 1961, s 194A.3 Family Violence Act 2018, ss 90(a), 9, 112(1)(a).4 Crimes Act 1961, s 117(e).Factual background[2] The appellant and the complainant have been in a long and complicatedrelationship. A protection order has been in place since 31 May 2012 against theappellant in favour of the complainant.[3] On 9 February 2020 the appellant invited the complainant to come on a holidaywith him, and to bring their daughter as well as the complainant's elder daughter. Sheagreed. The complainant, appellant and the two children drove from Hastings toInvercargill to visit friends and associates.[4] On 13 February 2020 the complainant was packing the car for their return. Theappellant approached her and an argument broke out between them over the movingof gear within the car. The appellant shoved the complainant hard, which caused herto fall. She was caught by her elder daughter and received no injuries. This gave riseto a charge of assault on a person in a family relationship. The appellant alsothreatened to put a bullet in the complainant's mother's head during this argument.[5] The complainant and children subsequently went to bed and awoke atapproximately 1.30 am the next day in order to be on time for the ferry from Picton.The complainant drove the car while the appellant slept with both children in the back.As she drove through Cromwell, the complainant stopped the car and got out, advisingthe appellant that she could not drive any further. The appellant became enraged. Heyelled that she had a death wish. He made threats about using a gun on the complainantand began to abuse her in front of the children. One of the children called the police,as did a passing motorist.[6] The appellant was located by the police as he drove towards Alexandra. Whenspoken to, the appellant said that he had been attacked by the complainant and that shewas angry and upset with him and he had been pleading to get in the car with her. Hedenied making any threats or assaulting her.[7] The appellant was subsequently charged with breaching the protection orderand was due to appear for the charges on 27 July 2020. On 10 July 2020 the appellantand complainant met at a hotel. The pair socialised, and during the course of theevening the appellant asked the complainant to write an affidavit to the court. Hiscomments included "can you keep me out of jail" and "come on hun you don't wantto send the man in your life to jail". The complainant refused.[8] On 12 July 2020 the appellant sent a text message which said:fight for us; so I don't go to jail me dad going to lawyers next week doaffidavits stop me going jail can you think about our family furure before yousay no hun please:[9] On 19 July 2020 the complainant texted the appellant and told him not to texther anymore, and that she was "done", indicating she did not want any further contactfrom him.[10] On 22 July 2020 the complainant was at her workplace in Hastings. Theappellant was still texting her, asking her for her whereabouts but she did not respond.The appellant drove around various locations in Hastings attempting to find thecomplainant. At 11.50 am that day he arrived at the complainant's workplace andapproached her, now telling her to write an affidavit to the court saying the incident inthe South Island did not happen. He then showed her a handwritten list of all thebusinesses he had visited when trying to track her down. The complainant then soughtassistance from a colleague and both told the appellant to leave repeatedly. Heeventually did.[11] On 23 July 2020 at 10.03 am the appellant sent another text message with therequest that the complainant go to court and get the protection order "dropped" and towrite "James never assaulted me and you don't need protection from me". These textsmorphed gradually over the next few days into "goodbye" texts which implied he wasgoing to commit suicide. This gave rise to a further contravention of the protectionorder.[12] On 26 July 2020 the appellant approached the complainant on Facebookmessenger. He sent a message which stated how the police were enemies and to notlet them put him away.[13] Between 19 and 28 July 2020 the appellant had sent approximately 50 textmessages to the complainant, to which she did not respond.[14] On 30 July 2020 the appellant was arrested. In explanation he stated that thecomplainant was lying, that she had volunteered to write an affidavit for him, and thathe had showed up to her work by coincidence. The appellant was charged withattempting to pervert the course of justice.District Court decision[15] Judge B M Mackintosh adopted a starting point of two years and three months'imprisonment on the lead charge of attempting to pervert the course of justice.5 Sheidentified a number of aggravating features, namely that:(a) there was a "sustained and determined effort" made by the appellant tohave the complainant retract her statement, and that this had the"hallmarks of emotional blackmail";6(b) the effect on the victim — the complainant had had a breakdown, andthe type of psychology used by the appellant on the complainant wasdescribed by the Judge as "quite manipulative";7(c) the appellant had sent over 50 texts, contacted the complainant byFacebook, and then tried to find out where she was working and wassuccessful in doing so — "stalking her down essentially".8(d) the contact the appellant had with the complainant had to be seenagainst the history of family harm and the wider family relationshiphistory. As such, the appellant was clearly intending to avoid criminalproceedings;95 R v O'Keefe, above n 1 at [30].6 At [24].7 At [25].8 At [25].9 At [26].(e) it was also relevant that the complainant was subject to a protectionorder when the appellant undertook this behaviour.10[16] She then applied the following uplifts:(a) six months for the attempt to pervert the course of justice also involvingbreaches of the protection order;(b) three months for assaults and threats and the other matters;(c) three months for previous history of offending.[17] The following discounts were then applied:(a) 20 per cent for the guilty plea;(b) five percent for each of the rehabilitation efforts.[18] This resulted in an end sentence of two years and three months' imprisonment.Concurrent sentences of three months for the assault and six months for the breachesof the protection order were imposed. The Judge noted that the end sentence wouldfall outside the range for home detention, but that the time the appellant had spent incustody would be factored in.Approach on appeal[19] The appeal is brought under s 244 of the Criminal Procedure Act 2011.11 Unders 250(2) the appeal must be allowed if the court is satisfied that there is an error in thesentence imposed on conviction, and that a different sentence should be imposed.12The focus is on the ultimate end sentence, and whether it is manifestly excessive,rather than the steps taken in the sentencing process.1310 At [26].11 Criminal Procedure Act 2011, s 244(1).12 Section 250(2).13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].[20] The appellant's key argument on appeal is that the starting point adopted bythe District Court was too high. Mr Phillips refers to a number of precedents andargues that a starting point of between 20 months and 24 months' imprisonment wasmore appropriate. He further argues that there should have only been a further threemonth uplift for breaches of the protection order. The three month uplift for theassault, threats and other matters is not challenged, and neither is the three month upliftfor previous convictions. The discounts for guilty pleas, remorse and rehabilitationare also accepted. It is submitted, however, the higher starting point, and excessiveuplift for the breaches of the protection order have resulted in a manifestly excessivesentence, and that a sentence of 20 to 24 months' imprisonment was more appropriate.Assessment[21] They key issue is the starting point on the attempt to pervert the course ofjustice charge. Of the authorities that have been referred to by counsel it seems to methat the decisions of the Court of Appeal in Maney v R14 and Lufe v R15 provide thegreatest guidance.[22] In Maney the Court reviewed a number of authorities relating to this kind ofoffending, including previous decisions of the Court of Appeal. In that case Mr Maneyhad telephone discussions with his mother to the effect that she would persuadeanother person to persuade a witness to change his evidence. The mother duly did sobut the witness did not agree and Mr Maney was subsequently convicted. The Courtnoted that the attempt to pervert the course of justice was neither direct, norsuccessful.16 It did not agree with the starting point of two years three months, andheld that a starting point of greater than two years could not be justified.[23] Lufe concerned a domestic relationship, with the offending including injuringwith intent to cause grievous bodily harm, breaching release conditions and attemptingto pervert the course of justice. The attempt to pervert the course of justice arosebecause Mr Lufe sent text messages to the victim attempting to persuade her to14 Maney v R [2018] NZCA 193.15 Lufe v R [2018] NZCA 327.16 Maney v R, above n 14 at [22].withdraw her allegations. The Court referred to Maney but concluded that the attemptin that case was direct so that a sentence of more than two years was justified.17[24] For similar reasons the starting point adopted by the District Court Judge hereof two years three months was not too high simply on the basis of the conduct itself.Whilst the attempts made by the appellant were unsuccessful, they were neverthelessdirect. Moreover they were repeated, and became ominous given they becameassociated with acts of physical stalking. There was no threat of physical violence,but there was psychological intimidation of a kind that can be relevant in familyviolence offending. For that reason I do not accept that the starting point adopted wastoo high.[25] There is the further factor that this conduct also involved breaches of theprotection order. This was a separate offence, and was addressed by the Judge by anuplift of six months which led to an effective starting point of two years nine months.This forms part of Mr Phillips' criticism that the ultimate starting point of two yearsnine months was too high.[26] Whilst I accept that it is on the high end, the conduct by itself would justify astarting point of two years six months rather than two years three months, and whenthe breach of the protection order is factored in, an assessment of a starting point of attwo years nine months for this offending overall is not outside the available range.[27] The Judge was then required to address the other offending. The initial breachof the protection order might not be regarded as serious given that the holiday wasconsensual, but it ultimately involved an assault (albeit a minor one) which wasaccompanied by threats which took place in front of the children. A three month upliftwas justified in those circumstances. The Court has then also uplifted a further threemonths for the previous offending. By itself that cannot be criticised. There is alsono criticism of the discounts given.[28] I accept that the ultimate sentence of two years and three months was on thehigher side, but I do not accept that it is manifestly excessive. Attempting to pervert17 Lufe v R, above n 15 at [24].the course of justice is always a serious charge. When it occurs in a family violencecontext when the offending is directed to pressurising a victim not to give evidenceagainst the offender, the Court will react firmly particularly when there is a protectionorder in place. Here the conduct involved relentless and highly psychologicallypressurising conduct to the point of physical stalking. Had the underlying offendingbeen more serious the position would have been worse. But I still accept that this isserious offending, and that the sentence is not out of range.[29] The appeal is dismissed.Cooke JSolicitors:Bramwell Bate Lawyers, Hastings for the AppellantCrown Solicitor, Napier for Respondent