LOCHHEAD v R [2020] NZCA 668

LOCHHEAD v R [2020] NZCA 668 [18 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA567/2020[2020] NZCA 668BETWEEN JASON HEATH LOCHHEADApplicantAND THE QUEENRespondentCourt: French, Whata and Mander JJCounsel: Applicant in personT R Simpson for RespondentJudgment:(On the papers)18 December 2020 at 9 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal against sentence is declined.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] Mr Lochhead was convicted in the District Court of family violence offendingagainst his ex-wife following pleas of guilty.1 Judge Gilbert sentenced him to a termof imprisonment of two years and three months.2 Mr Lochhead appealed the sentenceto the High Court but the appeal was dismissed by Doogue J.31 Attempting to dissuade a witness from giving evidence — representative (Crimes Act 1961,s 117(a)); threatening to kill — representative (Crimes Act, s 306); publishing an intimate visualrecording (Crimes Act, s 216J); breaching a protection order (Family Violence Act 2018, ss 9,90(a) and 112(1)(a)); and wilful damage — representative (Summary Offences Act 1981,s 11(1)(a)).2 R v Lochhead [2020] NZDC 14301 [District Court decision].3 Lochhead v R [2020] NZHC 2334 [High Court decision].[2] Mr Lochhead now seeks leave to appeal to this Court. Leave is requiredbecause the proposed appeal would be a second appeal.4[3] In a minute dated 21 October 2020, Goddard J directed that the application forleave should be heard on the papers.Background[4] Mr Lochhead and the victim were in a relationship for five years and had onechild.[5] In December 2018, the victim obtained a protection order againstMr Lochhead. Despite the order, Mr Lochhead continued to send her multiple voicemessages over Whatsapp and on three occasions in August 2019 he went to her addressuninvited and refused to leave when asked to do so. On one of those occasions, hepunctured the rear tyres of the victim's car with a knife and on another occasionsmashed a bedroom window. This resulted in charges being laid.[6] While on bail, Mr Lochhead sent the victim a series of abusive text messagesthreatening violence. At sentencing, the Judge said he could not recall having everseen a series of texts and threats that were so vitriolic, hateful and graphic.5 Seven ofthe messages contained explicit threats to kill the victim, involving threats to slit herthroat, cave in her skull, remove her in a body bag and cut off her head.[7] Two messages also demanded that the victim go to a police station andwithdraw her complaint. If she failed to do that, Mr Lochhead threatened her that hewould gain custody of their daughter and the victim would never see her again.[8] Then on 23 November 2019, without the victim's permission, Mr Lochheadsent an intimate video taken of her to her mother.[9] In total, Mr Lochhead faced five changes to which he subsequently pleadedguilty. The charges were:4 Criminal Procedure Act 2011, s 253.5 District Court decision, above n 2, at [12].(a) Attempting to dissuade a witness from giving evidence.(b) Threatening to kill (representative).(c) Publishing an intimate video recording.(d) Breach of a protection order (representative).(e) Wilful damage (representative).[10] In sentencing Mr Lochhead, Judge Gilbert adopted starting points of12 months' imprisonment for the representative breach of protection order and wilfuldamage charges, and two and a half years imprisonment for the charges of dissuadinga witness and threatening to kill.6 He then applied uplifts of six months forthe publication of the video recording and a further uplift of three months for offendingwhile on bail and while a protection order was in force.7[11] The Judge then adjusted the starting point by making reductions on account oftotality (nine months),8 Mr Lochhead's mental health issues (15 per cent),9 and hisguilty plea (20 per cent).10 Those adjustments resulted in an end sentence of two yearsand three months' imprisonment.[12] In granting a discount for mental health issues, the Judge relied on a reportfrom a psychologist. The report stated that Mr Lochhead was suffering from anadjustment disorder arising from the breakdown of the marriage and the loss of accessto his daughter who had been taken into state care.[13] On appeal to the High Court, Mr Lochhead did not challenge the Judge'sstarting point but argued that the discounts granted were inadequate and that a discountshould have been granted for time spent on bail with a curfew. Doogue J rejectedthose arguments and held that the end sentence was not manifestly excessive.6 At [38]–[39].7 At [40] and [42].8 At [41].9 At [44].10 At [45].Grounds of the proposed appeal[14] Mr Lochhead wishes to advance several grounds of appeal:(a) The threatening text messages were misinterpreted or not proved.(b) He did not plead guilty to the wilful damage charge at his firstappearance because he had already discussed reparation forthe punctured tyres with the victim and the smashing of the windowwas accidental.(c) There was an error regarding alleged curfew breaches.(d) The discount for mental health issues was inadequate.(e) The appropriate sentence was home detention.Analysis[15] This Court will only grant leave to bring a second appeal if satisfied thatthe proposed appeal involves a matter of general or public importance or thata miscarriage of justice may have occurred or may occur unless the appeal is heard.11The threshold has been held to be a high one.12[16] As will be apparent, the proposed grounds of appeal are all specific toMr Lochhead's case and do not involve matters of general or public importance.[17] The application for leave must therefore stand and fall on whether we arepersuaded there is a risk of a miscarriage of justice unless the proposed appeal is heard.[18] We are not so satisfied. First, having pleaded guilty on the basis ofthe summary of facts, it is now not open to Mr Lochhead to contest the existence andmeaning of the text messages or to claim that the damage to the window was accidentalie not deliberate or wilful.11 Criminal Procedure Act, s 253(3).12 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764; and Gorgus v R [2016] NZCA 508 at [8].[19] Secondly, while it is correct that in the High Court two of the three allegedbreaches of curfew were set aside, they were not an aggravating factor taken intoaccount by either Judge Gilbert or Doogue J.13 Further in so far as they may haveinfluenced the former's decision not to allow any credit for time spent on bail, there isa compelling argument to say that other aspects such as the fact of offending while onbail, the breach of the curfew that did occur and the breach of a condition not to contactthe victim amply justified the decision not to allow any credit.[20] As regards the size of the discount for mental health issues, the approach takenboth in the District Court and in the High Court was that the adjustment disorder wasonly partly causative of the offending and therefore did not warrant a larger discount.That approach was plainly open to both Courts.[21] It was also open to both Judges to take the view that the guilty pleas could notreasonably be considered as having been entered at the first possible opportunity so asto attract the full 25 per cent discount. The charges were laid variously in August 2019,and February and March 2020, and the guilty pleas were only entered in May 2020.[22] Finally, it is well established that the decision whether to impose a sentence ofhome detention or not is a matter of judgment for the sentencing judge.[23] Non-custodial sentences were advocated by counsel for Mr Lochhead atsentencing and carefully considered by Judge Gilbert. The Judge acknowledged thatthe decision to send someone to prison (especially for the first time as inMr Lochhead's case) was a big one. However in light of the persistent and seriousnature of the offending aggravated by the attempt to interfere with the course of justice,the Judge considered an end sentence of 27 months was a proportionate response tothe offending and was the only appropriate response having regard to the statutorypurposes and principles of sentencing.14[24] In our view, there is not a tenable argument that this conclusion wasdemonstrably wrong so as to create the risk of a miscarriage of justice.13 High Court decision, above n 3, at [27].14 District Court decision, above n 2, at [47]–[48].Likewise, Doogue J's conclusion that the end sentence was not manifestly excessivebut was open to the District Court in all the circumstances cannot be impugned.[25] We therefore decline the application for leave to bring a second appeal againstsentence.Solicitors:Crown Law Office, Wellington for Respondent