EDWARDS v NEW ZEALAND POLICE [2017] NZHC 2834

EDWARDS v NEW ZEALAND POLICE [2017] NZHC 2834 [17 November 2017]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2017-441-33[2017] NZHC 2834BETWEEN JASON WADE EDWARDSAppellantAND NEW ZEALAND POLICERespondentHearing: 7 November 2017Appearances: E J Forster for the AppellantC C Gullidge for the RespondentJudgment: 17 November 2017JUDGMENT OF CULL J[1] Mr Edwards pleaded guilty to four charges of breach of a protection order.1 On1 September 2017, Judge Courtney sentenced Mr Edwards to 12 months'imprisonment.2[2] Mr Edwards appeals his sentence on the grounds that it was manifestlyexcessive and there was an error in calculating the discount for the guilty plea. TheCrown opposes the appeal and submits the sentence was within the available range.The Crown accepts, however, that there was an error in the guilty plea calculation,although submits the effect of this error was minimal.1 Domestic Violence Act 1995, ss 19, 49(1)(b) and 49(3). Maximum penalty is three years'imprisonment.2 New Zealand Police v Edwards [2017] NZDC 19761.Factual background[3] Mr Edwards and the victim had been in a relationship for approximately 12years and separated for the last two years. There is a protection order in place againstMr Edwards, which covers the victim and their four children.[4] The present offending occurred on 24 and 25 July 2017. On 24 July,Mr Edwards went to the victim's address, accused and abused the victim beforeleaving. He returned again later that evening and abused and intimidated the victim.Police were called and the victim asked for Mr Edwards to be warned and told to stayaway for the breach, as one of her children had begged her not to send dad to jail.[5] In the late morning of 25 July, Mr Edwards, uninvited, arrived again at thevictim's address. Mr Edwards stood over the victim with a closed fist, while abusingher for having another partner. He also abused the victim about having contactedpolice the previous day. The victim asked Mr Edwards to leave numerous times,however, he refused to do so. The victim managed to escape outside onto the deck ofthe property, fearing she would be physically hurt. During this time, Mr Edwardsmade repeated comments about how he was going to do something to her and wouldburn the house down. Mr Edwards eventually left and was arrested by police a shorttime later.[6] Mr Edwards is 36 years of age. He has nine previous offences, including fiveprevious breaches of this same protection order, two convictions for male assaultsfemale, one conviction for assault with intent to injure and one for wilful damage.These offences are all family violence related.District Court decision[7] In sentencing Mr Edwards, Judge Courtney highlighted that although there wasno violence involved, he did not view this as low-level offending. Mr Edwardsrepeatedly returned to the property over two days. The Judge noted he would treat theoffending as an ongoing single incident involving four different breaches. The Judgecommented that the offending was clearly of significant concern to the victim,particularly in light of Mr Edwards' background of offending with the same victim.[8] In setting the starting point, the Judge referred to two comparable cases, wherethe offenders received sentences of 10 and 12 months' imprisonment, each for twoprotection order breaches.3 In this case, the Judge found the relevant aggravatingfactors were the threats to burn down the victim's house; abusive threats; multiplebreaches of the protection order and multiple incidents of past offending (includingwhile on release conditions and in the face of a police warning). The Judge set astarting point of 12 months' imprisonment, considering the number of offences.[9] The Judge uplifted this starting point by three months to reflect Mr Edwards'previous convictions. That resulted in a sentence of 15 months' imprisonment.[10] The Judge then gave "full credit" for his guilty plea, and noted this was "infact, slightly more" to bring the sentence down to an end sentence of 12 months'imprisonment for each breach (served concurrently).4 The Judge also imposed sixmonths of special release conditions to apply, following the expiry of the sentencedate.Approach to appeal[11] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion. An appeal against sentencemust be allowed if the Court is satisfied that, for any reason, there is an error in thesentence imposed and a different sentence should be imposed.5 The focus is on thefinal sentence and whether that was in the available range, rather than the exact processby which it was reached.6Mr Edward's position[12] Mr Edwards contends the sentence of 12 months' imprisonment was manifestlyexcessive and there was an error in calculating the guilty plea, which means that alesser sentence should be imposed.3 Beck v Police [2016] NZHC 2281; and Kumar v Police [2015] NZHC 1575.4 Edwards, above n 2, at [12].5 As confirmed in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.6 Ripia v R [2011] NZCA 101 at [15].[13] In submitting the sentence imposed was manifestly excessive, Counsel forMr Edwards compared other similar cases:(a) Iyer v Police: a starting point of two years and six months'imprisonment was upheld on appeal for one charge of breaching aprotection order.7 Mr Iyer was subject to a final protection order withhis off-on partner and breached this by visiting the victim's home,whilst intoxicated, and damaged a stereo and threw a brick through thewindow of the victim's car. A child was present in the house at the timeand Mr Iyer refused to leave after being repeatedly asked. Mr Iyer had17 previous convictions for protection order breaches, with five againstthe current victim.(b) Bartlett v Police: a starting point of 14 months' imprisonment wasupheld on appeal for two charges of breaching a protection order andone charge of breaching prison release conditions.8 Mr Bartlett wassubject to a final protection order in favour of his ex-partner, hadbreached the order three times previously and was sentenced toimprisonment for that offending. Upon release, he was not tocommunicate or contact his former partner. He then went to thevictim's work, verbally abused her and later abused her via telephoneand email. Mr Bartlett had eight similar protection order breacheswithin the last two years.(c) Mitchell v R: a starting point of 18 months' imprisonment was upheldfor one charge of breach of a protection order.9 At the time, themaximum penalty was only two years' imprisonment.10 Ms Mitchellleft two abusive messages on the victim's phone, went to the victim'shouse with a tyre iron, smashed several windows and the front door andyelled abuse at the occupants after entering. Ms Mitchell had nine7 Iyer v New Zealand Police [2017] NZHC 353.8 Bartlett v Police [2016] NZHC 850.9 Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498.10 Ms Mitchell was first sentenced on 10 September 2013, prior to the Domestic ViolenceAmendment Act 2013 coming into effect on 25 September 2013. Section 11(1) of that Actamended the maximum penalty from two years' to three years' imprisonment.previous protection order breaches. The Court of Appeal noted that hersentence was appropriate as it was a very serious case of its type. Therewas a wilful and terrorising breach of the order, made more serious asit was part of a continuing pattern and made in the face of a previousjudicial warning about this offending. Ms Mitchell was also sentencedfor a charge of intentional damage.(d) Beck v Police: Mr Beck was sentenced to 15 months' imprisonment fortwo charges of breaching a protection order and one charge ofbreaching release conditions.11 Mr Beck and the victim had a historyof domestic violence, assault convictions against the same victim, fourprevious breaches of protection orders and a final protection order wasin place. Mr Beck sent 45 text messages to the victim and in one ofthese he threatened to kill her. The following day he contacted herrepeatedly and then tried to enter the victim's home. A totality startingpoint of 15 months' imprisonment was upheld on appeal for the twoprotection order breaches.(e) Kumar v New Zealand Police: a 12 month starting point was imposedon appeal for two charges of breaching a protection order.12 Theoffending occurred as part of a pattern of ongoing abuse includingrecent breaches of a protection order, which had only just beenimposed. Mr Kumar confronted his former partner in person aboutbeing with his brother, took her wallet and then returned it. About amonth later, he sent psychologically abusive text messages to thevictim, pleading her to be with him as he was depressed and wanted todie.[14] In the present case, Mr Edwards submits his offending was less serious thanall of these cases and the offending justified a starting point of 10 months'imprisonment at the highest. Mr Edwards' offending is accepted as being repeatconduct and included a serious threat to burn down the victim's home. However,11 Beck v Police [2014] NZHC 931.12 Kumar v New Zealand Police [2015] NZHC 1575. There was also a charge of driving whiledisqualified, which was dealt with by way of an uplift.Counsel submits this threat was suggested as nothing more than letting off steam; itdid not involve any harm to property or person and there was no physical contact atall. Both incidents were relatively short-lived and there were only five previousprotection order breaches.[15] Further, Mr Edwards submits there was an error in calculating the reductionfor the guilty plea at sentencing. The 25 per cent reduction was calculated from thestarting point of 12 months' imprisonment, not 15 months' imprisonment, once otherfactors had been considered. This, it was submitted, is contrary to the Supreme Court'sapproach in Hessell v R.13 The 25 per cent discount should have been deducted fromthe uplifted starting point of 15 months' imprisonment, which would have given a finalsentence off 11 months' and one week.Crown's position[16] The Crown opposes the appeal and submits the sentence was within theavailable range. The Crown submits the sentence imposed was consistent with casesinvolving similar offending and the Judge acted in accordance with the acceptedapproach for this type of offending. The Crown notes that for this type of offending itis preferable to take into account previous convictions for breaches of protectionorders against the same victim in setting the starting point, rather than applying asubsequent uplift.14 However, there is no single consistent approach adopted.[17] The Crown submits Mr Edwards' offending is most comparable with the casesof Bartlett, discussed above, and Palmer v Police where starting points of 14 months'imprisonment were adopted.15 In Palmer, a starting point of 14 months' imprisonmentwas adopted for three protection order breaches. Mr Palmer had previously breachedthe order on six occasions over four years. The victim and offender were trying towork on their relationship. Over a period of four days Mr Palmer breached the orderon three occasions by being verbally abusive, pulling on her hair and refusing to leavethe address for two days until police were called. Mr Palmer did initially have thevictim's permission to be at the address.13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [14] and [73].14 Mitchell, above n 9, at [12] and Palmer v Police [2015] NZHC 143 at [17]–[18].15 Palmer, above n 14.[18] Although Mr Edwards did not use physical violence, he did not havepermission at any stage to be at the victim's address. The offending took place at thevictim's home and Mr Edwards has an extensive history of breaching protection ordersagainst her. On this basis, the Crown submits a starting point between 12 to 14 months'imprisonment would have been appropriate. This takes into account Mr Edwards'previous protection order breaches, but not his previous violent convictions. Althoughthe Judge did not explicitly address which of Mr Edwards' previous convictionsapplied to the three month uplift imposed, the Crown submits a three month uplift forthe previous violent convictions against the same victim alone was well within therange.[19] The Crown accepts there was an error in the guilty plea calculation althoughsubmits the effect of this error was minimal. The difference was between a finalsentence of 12 months' the Judge imposed and the correct sentence of 11 months' andone week imprisonment. The Crown submits the end sentence was not significantlymore severe than it ought to have been having regard to the offending and the offender.[20] Although the Judge did not address the question of home detention, the Crownsubmits a home detention address was not available and would not have beenappropriate in the circumstances. A sentence of home detention would not haveadequately denounced Mr Edwards' conduct, particularly considering this is a case ofrepeated breaches of a protection order.DiscussionStarting point[21] There is no tariff decision for breaches of protection orders. This isunsurprising, considering that this offending varies enormously in culpability and thedegree of the threat posed to the protected person.16 The cases provided by bothcounsel provide helpful comparisons with Mr Edwards' offending.[22] I accept the Crown's submission that the starting point of 12 months'imprisonment was well within the available range. I consider Mr Edwards' offending16 Iyer, above n 7, at [11].as more serious than that in Bartlett, where a starting of 14 months' imprisonment fortwo breaches and a breach of release conditions occurred. I acknowledge Mr Edwardshas fewer previous convictions for the same offending (five) than Mr Bartlett (eight).[23] The offending in Palmer is also comparatively similar to Mr Edwards as itoccurred at the victim's property, over a period of a few days and was verbally abusive.Mr Palmer's offending might be considered more serious as he was also physicallyabusive. However, Mr Palmer was only charged with three protection order breaches,whereas Mr Edwards has been charged with four.[24] The other cases are not particularly helpful as the offending is more seriousthan Mr Edwards' offending; the offenders had a greater number of previousconvictions for breaches; and the case of Mitchell involved a lower statutory penalty.[25] I consider a starting point of 12 months' imprisonment was well within theavailable range for Mr Edwards' offending. His offending was repeated over aprolonged two day period. It involved entering the victim's home and making abusivethreats, including a serious threat to burn the victim's house down. I do not acceptthat the threat of arson was anything more than "letting off steam", when it was theculmination of two days of abusive behaviour and where the victim obviously fearedfor her safety. Although Mr Edwards did not use physical violence, he stood over herthreateningly on several occasions, with his fists closed.[26] Although the Judge did not specify which convictions justified the three monthuplift, it would have been appropriate to give such an uplift for the four previousviolent convictions Mr Edwards has against the same victim. Overall, an end startingpoint of 15 months' imprisonment was not in error for the offending, Mr Edwardsprevious convictions and for the five previous protection order breaches.Guilty plea discount[27] Both counsel accept there has been a mathematical error in calculating theguilty plea. The Judge should have made the 25 per cent discount once all of theaggravating and mitigating factors were considered, as was affirmed in Hessell.17 Itappears the Judge calculated the discount from the 12 month starting point.[28] The full 25 per cent credit for Mr Edwards' guilty plea should have beendeducted from the term of 15 months' imprisonment. This would have resulted in afinal sentence of 11 months' and one week, or rounding down to 11 months'imprisonment if appropriate.[29] The Judge made a mathematical error, which should be corrected on appeal, togive Mr Edwards full credit for his guilty plea.Conclusion[30] The starting point and sentence otherwise imposed was well within theavailable range and appropriate in light of the current offending and Mr Edwards'pattern of previous offending towards the same victim.[31] The appeal is allowed in part, to correct the error made in calculating thediscount for the guilty plea. The sentence of 12 months' imprisonment is quashed. Insubstitution, a sentence of 11 months' imprisonment is imposed.Cull JSolicitors:Elvidges, Napier17 Hessell, above n 13, at [14] and [73].