WATERMAN v POLICE [2021] NZHC 3083

WATERMAN v POLICE [2021] NZHC 3083 [16 November 2021]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2021-425-000018[2021] NZHC 3083BETWEEN JAMIE WATERMANAppellantAND NEW ZEALAND POLICERespondentHearing: 15 November 2021Appearances: J A T Ross for the AppellantM B Brownlie for the RespondentJudgment: 16 November 2021JUDGMENT OF NATION JIntroduction[1] The appellant, Jamie Waterman, was sentenced by Judge Walker in the DistrictCourt to 12 months' supervision in relation to two charges of intimidation1 and onecharge of possession of an offensive weapon.2 Judge Walker made a protection ordernaming Mr Waterman as the respondent and his former partner (the victim) as theprotected person.3 Mr Waterman appeals solely against the imposition of theprotection order.1 Summary Offences Act 1981, s 21(1)(a).2 Crimes Act 1961, s 202A(4)(b).3 Police v Waterman [2021] NZDC 16960.Background[2] On 1 August 2021, Mr Waterman was at home with his (former) partner andgrandmother. At about 1.30 pm, Mr Waterman became upset that he had broken hisphone screen. He left the address for a short time to calm down. When he returnedhe again became angry. He picked up a crowbar and proceeded to smash his ownvehicle which was parked in the driveway. He threatened to smash partner's vehicleand a caravan but decided not to follow through on those threats.[3] When the Police arrived, Mr Waterman was in the caravan with his partner.When asked to come out he was holding the crowbar. Upon seeing the Police, he putthe crowbar on the ground and was placed under arrest.District Court decision[4] Judge Walker canvassed the facts of the offending and referred to mattersraised in the pre-sentence report before concluding that a sentence of 12 months'supervision was appropriate in the circumstances.[5] Mr Waterman opposed the application for a protection order that was soughton behalf of his former partner. The Police stated the victim had made a statementsince Mr Waterman had breached bail. The Judge noted there had allegedly beenanother recent incident that involved Mr Waterman in further possessive andcontrolling behaviour. The victim's view, that there was a difficult cocktail of issuesinvolving Mr Waterman's drug addiction and impulsive behaviour, was noted by theJudge.[6] The Judge referred to a victim impact statement from Mr Waterman's partnerwhere she said there was an escalation in anger and control leading up to the incident.The Judge concluded a protection order was appropriate and made that order.Principles on appeal[7] 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 there hasbeen an error in the imposition of the sentence and that a different sentence should beimposed.4 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".5 It is only appropriatefor this Court to intervene and substitute its own views if the sentence being appealedis "manifestly excessive" and not justified by the relevant sentencing principles.6SubmissionsAppellant's submissions[8] Mr Ross, for Mr Waterman, submitted the District Court Judge failed toprovide adequate reasons to support the conclusion that a protection order wasnecessary. It was submitted the Judge did not assess why the protection order wasrequired moving forward.[9] Mr Ross submitted the Court must be satisfied that the order is necessary forthe protection of the victim, which entails a future-focus inquiry. He submitted theindex offending is relevant and, by itself, did not warrant a protection order. Hecontended the offending was at the lower end of the scale and the threat was primarilyto property. Mr Ross contended it is significant that the victim did not fear for hersafety.[10] It was submitted that the circumstances in which Mr Waterman breached hisbail did not justify the imposition of a protection order. The breach occurred as MrWaterman breached the non-association condition. Mr Ross explained the victiminitially approached Mr Waterman, then he approached her asking her to drive him tohis grandmother's address. During the trip, Mr Waterman took issue with the victimusing her cell phone. The victim dropped him off and subsequently made a statementto the Police which resulted in Mr Waterman being arrested and held in custody. Nocharges were laid.4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 Ripia v R [2011] NZCA 101 at [15].[11] Mr Ross noted the victim impact statement was made after the breach of bailincident and submitted it contains broad allegations that lack specificity.[12] Mr Ross submitted Mr Waterman's history is relevant, in particular that thereis no evidence of Police call outs or Police Safety Orders. The parties have no childrenand live in separate houses.Respondent's submissions[13] The respondent's position is the District Court Judge had ample evidencebefore him to determine that the protection order was necessary for the protection ofthe victim. In particular, the respondent points to Mr Waterman's untreated issuesinvolving substance abuse and propensity for violence. It is submitted theunpredictability and instability of Mr Waterman's state of mind due to the untreatedmethamphetamine addiction, coupled with a propensity for violence, meant theprotection order was necessary for the victim's on-going protection.Analysis[14] The following four criteria set out in s 123B of the Sentencing Act 2002 mustbe established before a protection order can be made:(a) the offender is convicted of a family violence offence;(b) there is not currently a protection order in force;(c) the making of the protection order is necessary for the protection of thevictim; and(d) the victim does not object to the making of the order.[15] Three of the four criteria are not in dispute. The only issue on appeal is whetherthe protection order was necessary for the protection of the victim.[16] The inquiry into whether a protection order is necessary does not need to beoverly refined, nor is an extensive discussion of the necessity for the order required.7Determining whether an order is necessary is an evaluative exercise, rather than aweighing of the factors for and against the order.8 The court should provide reasonsfor the conclusion that the order is necessary.9[17] I note the fact the assault charges were under the Summary Offences Act 1981does not detract from the need for a protection order.10[18] The pre-sentence report records that Mr Waterman was coming down from amethamphetamine high at the time of the offending. The report writer records MrWaterman was angry at breaking his phone and wanted to blow off steam, so he tookto his own vehicle with a crowbar.[19] Mr Waterman has struggled with alcohol and drug use from a young age andis recorded as having been "bounced" from one family member to another. He agreedwith the report writer that he would benefit from alcohol and drug counselling. Thereport writer recorded Mr Waterman was "sorry for relapsing and frightening hispartner and grandmother".[20] The Judge thus had evidence that, at the time of the offending, Mr Watermanwas regularly using methamphetamine. The Judge was entitled to take judicial noticeof the fact that use of that drug could cause the user to behave erratically, irrationallyand violently.[21] Mr Waterman has one family violence conviction for assault in 2019. As such,the offending that resulted in the charges does not appear to be part of a lengthy patternof behaviour. However, two days before his sentencing, Mr Waterman breached hisbail by contacting the victim and by entering Tapanui. In explanation, Mr Watermansaid he could not be without the victim and had nowhere else to go. The fact hebreached bail so close to his sentencing showed how difficult it is for Mr Waterman7 SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [22]; Broderick v Police [2014] NZHC 133,[2014] NZFLR 406 at [21], see also Taylor v Police [2018] NZHC 1377 at [13] and Ogle v Police[2021] NZHC 1646 at [22].8 SN v MN, above n 7, at [24(f)].9 Ofisa v Police [2017] NZHC 2157.10 Taylor v Police, above n 7, at [19].not to act emotionally to the stress of the situation he is in, even when he knows he isnot allowed to and the victim did not agree to what he was doing.[22] Mr Waterman's counsel referred to the victim's statement of 17 August 2021as to the breaches of bail. In that statement, the victim said she did not wish to continuewith the relationship. Although she said in the later victim impact statement she didnot fear for her safety, in the statement to the Police of 17 August 2021, the victim saidMr Waterman had been abusing drugs and alcohol "and this causes him to beunpredictable". She said "I am fearful of what he might do because he can get veryangry and emotional when he's in this state".[23] In a victim impact statement made to the Police following the breaches of bail,the victim said "there are many times that he has yelled at me and scared me". Shestated the "latest incident [the index offending] was reported to Police as it was themost violent and we needed help". The victim said Mr Waterman's anger escalatedduring their 10 month relationship and he had been increasingly controlling leadingup to the incident.[24] In her victim impact statement of 18 August 2021, the victim said:I want a protection order as his behaviour is just getting worse and I can'tcontrol him. Im worried that he will continue to turn up at my house and mywork as he has done this while on a non-contact bail condition and I believehe will keep doing that. I don't want him to come near me.[25] Mr Waterman's explanation for the breach of bail close to the sentencingindicated he wanted to continue having contact with the victim and had not acceptedthat his relationship with her was over.[26] So, the Judge had information as to the state of the parties' relationship and thevictim's fears and needs which also established the making of a protection order wasnecessary.[27] It is evident from the information before the Court that Mr Waterman struggleswith drug and alcohol misuse. Indeed, he has agreed that he would benefit fromcounselling for these issues. The victim had said she wanted the Judge to know thatMr Waterman needed drug counselling and help for his mental health. Fortunately, todate, there has not been actual physical violence against the victim. Nevertheless,there is a risk of that. Mr Waterman was convicted in July 2019 of an assault by wayof family violence committed in April 2018 and for a common assault committed inDecember 2017.[28] I accept the respondent's submission that, without the protection order, thereare no protective factors in place to protect the victim. It is expected that, with thesupervision sentence, Mr Waterman will have to attend stopping violence programmesand a drug abuse rehabilitation programme but, at the time the order was made, MrWaterman had not commenced drug and alcohol counselling or the non-violenceprogramme. Although it is to be hoped that Mr Waterman's engagement inrehabilitation programmes will bring about significant change, there can be noguarantee this will happen. A sentence of intensive supervision with conditions wasimposed after the earlier family assault but, within three months, Mr Waterman had tobe re-sentenced for breaching the conditions of that sentence.[29] In my view, the District Court Judge was correct to find that the protectionorder was necessary to ensure the safety of the victim from future violence.[30] I also consider that, in his discussion as to the background to the incident, thecircumstances of the offending, the recent breach of bail and to the victim saying sheneeded a protection order, the Judge did give adequate reasons for his finding that themaking of a protection order was necessary.[31] As noted by the District Court Judge, the protection order will remain in forceuntil Mr Waterman or the victim apply to the Family Court for the discharge of thatorder on the ground that it is no longer necessary for the protection of the victim.Conclusion[32] Mr Waterman's appeal is dismissed.Solicitors:Montrose Chambers, InvercargillPR Law, Invercargill.