HAYNES v NEW ZEALAND POLICE [2022] NZHC 950

HAYNES v NEW ZEALAND POLICE [2022] NZHC 950 [6 May 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-82[2022] NZHC 950BETWEEN JAYDEN HAYNESAppellantAND NEW ZEALAND POLICERespondentHearing: 3 May 2022Appearances: SP Dickson for the AppellantFJ McKechnie and WN Fotherby for the RespondentJudgment: 6 May 2022JUDGMENT OF GORDON JThis judgment is delivered by me on 6 May 2022 at 11:30 am......................................................Registrar / Deputy RegistrarCounsel: Sarah Dickson, Henderson, AucklandSolicitors: Meredith Connell, Crown Solicitor, AucklandIntroduction[1] The appellant, Jayden Haynes appeals against a sentence of 13 months'imprisonment on the following charges in respect of which he pleaded guilty in theDistrict Court at Waitakere:(a) Threatening to kill;1(b) Breach of release conditions (x 2);2 and(c) Driving while suspended (third or subsequent).3[2] Mr Haynes appeals on the ground that the sentence is manifestly excessive.Ms Dickson, for Mr Haynes, submits that the Judge erred in adopting a global startingpoint of 14 months' imprisonment, and that eight months would have been moreappropriate.[3] Alternatively, Ms Dickson submits that the Judge could have adopted a startingpoint of seven months' imprisonment on the lead charge of threatening to kill, with anuplift of one month for the driving while suspended (third or subsequent) charge. Shesubmits that the breach of release conditions charges would not have attracted a furtheruplift in this context.[4] Ms Dickson submits further that the uplift of two and a half months forMr Haynes' history of offending was too high, because Mr Haynes' previous violencetowards the complainant was also recognised as an aggravating factor on the chargeof threatening to kill.[5] Ms McKechnie, for the respondent, submits that Mr Haynes cannotdemonstrate the sentence imposed is manifestly excessive. His sentence is consistentwith comparable authorities and the Court should dismiss his appeal.1 Crimes Act 1961, s 306(1)(a): maximum penalty seven years' imprisonment.2 Sentencing Act 2002, s 96(1): maximum penalty one year's imprisonment, or $2,000 fine.3 Land Transport Act 1998, s 32(1)(c) and (4): maximum penalty two years' imprisonment, or$6,000 fine.Factual background[6] Mr Haynes and the victim were in a relationship with a history of familyviolence. The current charges arose while Mr Haynes was subject to release conditionsafter serving a sentence of imprisonment for a serious assault on the victim in 2020.Threat to kill[7] On 28 November 2021, three months after Mr Haynes had been released fromprison, the victim ended her relationship with him via a text message. Mr Haynesresponded several hours later with the following message: "If you don't return thering, you will end up in a drain".[8] The next day, Mr Haynes sent two further messages to the victim:(a) "Right now I could watch you die and just stare in your eyes and smileas you pass".(b) "I would breathe a sigh of relief as I felt your presence leave".[9] The summary of facts records that the victim was terrified of Mr Haynes andfeared for her life. In her victim impact statement the victim said she feared for herlife due to the threats made by Mr Haynes. She said she believed he was capable offollowing through with his threats due to his previous attacks on her.Breach of release conditions[10] On 26 August 2020, Mr Haynes seriously assaulted the victim. During theassault he hit her, dragged her inside by the hair when she ran outside to get help,stomped on her head and strangled her until she coughed up blood. While applyingpressure to the victim's neck, Mr Haynes told her he was going to kill her.[11] On 14 May 2021, Judge Mathers sentenced Mr Haynes to two years'imprisonment for the 2020 offending.[12] On 25 August 2021, Mr Haynes was released with the following conditions:(a) Not to contact the victim.(b) To report to his probation officer.[13] As detailed above, Mr Haynes was in contact with the victim in November2021. He also failed to report to his probation officer.Driving while suspended[14] On 30 November 2021, the Police stopped Mr Haynes due to the manner of hisdriving. Police checks revealed he was a suspended driver and there was a warrantfor his arrest.District Court decision[15] Judge Jelaš sentenced Mr Haynes in the District Court on 3 March 2022.4[16] The end sentence of 13 months' imprisonment was arrived at as follows:(a) A global starting point on all charges of 14 months' imprisonment;(b) A discount of 25 per cent (three-and-a-half months) for an early guiltyplea; and(c) An uplift of two-and-a-half months for prior convictions.[17] The Judge adopted a starting point of 14 months' imprisonment afteridentifying five aggravating factors in relation to the charge of threatening to kill:5(a) the threats were not necessarily spontaneous, given the delay betweenthe victim's 'break up' message and the responses;(b) the threats not only implied an intention to kill, but were deliberatelycallous and aimed at causing emotional harm to the victim;4 Police v Haynes [2022] NZDC 4359.5 At [19]–[28].(c) the history of previous violence against the victim indicated Mr Hayneswas capable of carrying out his threats, and counterbalanced the lack ofspecificity in the threats;(d) the threats caused the victim significant harm (she was convinced hewould kill her and was suffering from trauma)̶ a letter from her GPconfirmed a post-traumatic stress diagnosis; and(e) the threats were made in breach of release conditions.[18] No additional uplift was imposed for the breach of release conditions charges.The Judge noted that the starting point "reflects those breaches as an aggravating factorof the threat to kill charge".6[19] No further uplift was imposed for the charge of driving while disqualified.7[20] The Judge gave a discount of 25 per cent (or three-and-a-half months) forMr Haynes' early guilty plea.8[21] Judge Jelaš considered an uplift of two-and-a-half months was warranted forMr Haynes' "significant" history of prior offending.9[22] When declining home detention, Judge Jelaš observed:10 there is a need to deter and denounce and to protect others fromMr Haynes. Mr Haynes has this significant history of family harm offendingand other violence offences and now has a significant history of offendingagainst the same victim. This offence occurred while he was subject to releaseconditions and has occurred fairly soon after his release.Approach on appeal[23] Appeals against sentence may be brought as of right under s 244 of theCriminal Procedure Act 2011 and must be determined in accordance with s 250 of that6 At [30].7 At [31].8 At [32].9 At [34].10 At [36].Act. An appeal against sentence may only be allowed by this Court if it is satisfiedthere has been an error in the sentence and that a different sentence should beimposed.11 The Court of Appeal has confirmed that a "court will not intervene wherethe sentence is within the range that can properly be justified by accepted sentencingprinciples".12 This Court will therefore only intervene and substitute its own views ifthe sentence being appealed is "manifestly excessive" and cannot be justified by therelevant sentencing principles.13[24] If an appeal is allowed, this Court will substitute a sentence in accordance withthe sentencing principles in the Sentencing Act 2002.SubmissionsAppellant's submissions[25] Ms Dickson submits that the Judge erred in adopting a global starting point of14 months' imprisonment. Ms Dickson submits that a global starting point of eightmonths' imprisonment is more appropriate and that this represents a significantdifference.[26] Alternatively, Ms Dickson submits that the Judge could have set a startingpoint of seven months' imprisonment on the lead charge of threatening to kill, with aone-month uplift for the driving while suspended (third or subsequent) charge. Shesubmits that no further uplift for the breach of release conditions charges would havebeen appropriate. This methodology would also have resulted in a sentence of eightmonths.[27] Ms Dickson accepts that breach of release conditions, previous convictions forviolence against the victim, and the effect on the victim, are appropriate aggravatingfactors.11 Criminal Procedure Act 2011, s 250(2) and (3).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].13 Ripia v R [2011] NZCA 101 at [15].[28] However, Ms Dickson submits that the Judge erred in finding the threats werenot necessarily spontaneous. While it is accepted that the break up message was sentat 6.40 pm on 28 November 2021, and the second and third messages from Mr Hayneswere sent at around 10.30 am the next day, Ms Dickson submits that Mr Haynes'threats were a spontaneous, immature (Mr Haynes was 26 years old at the time),emotion-driven response to the victim ending their relationship, and part of an ongoingconversation including back and forth communication between Mr Haynes and thevictim over the evening and morning.[29] Ms Dickson acknowledges that the language surrounding the threats was cruel.However, she submits that the Judge double-counted this aspect of the offendingbecause the Judge also counted the effect on the victim as an aggravating factor. Shefurther submits the threats lacked specificity.[30] Ms Dickson submits that an uplift of two-and-a-half months for Mr Haynes'history of offending is too high, considering Mr Haynes' previous violence towardsthe complainant was also identified as an aggravating factor on the charge ofthreatening to kill. Ms Dickson submits that if this Court accepts the submissions onbehalf of Mr Haynes and lowers the starting point, a proportionate uplift of one monthfor Mr Haynes' previous history would be appropriate.[31] In summary, Ms Dickson submits that an appropriate global starting point isone of eight months' imprisonment, with a 25 per cent guilty plea discount and anuplift of one month for previous convictions. This would result in an end sentence ofseven months' imprisonment (including fines being remitted as per the Judge'sdecision).Respondent's submissions[32] Ms McKechnie submits the Court should dismiss this appeal becauseMr Haynes has not demonstrated that the sentence was manifestly excessive whencompared to relevant authorities.[33] In summary, Ms McKechnie submits that an end sentence of 13 months'imprisonment is within the available range, particularly taking into account the highlevel of culpability associated with the threatening to kill charge. The focus on appealis whether the end sentence is within the available range. She submits that Judge Jelašdid not make any error that warrants tinkering with the sentence.DiscussionCase law on threatening to kill[34] There are no sentencing tariffs for a charge of threatening to kill. The Court ofAppeal has commented that "[i]t is difficult to discern any consistent pattern insentences on charges of threatening to kill".14 However, comparison with recent caselaw will ensure consistency with sentencing for similar offending.15[35] In Faaleaga v R, the Court of Appeal identified the key factors for culpabilityon a charge of threatening to kill as follows:16 premeditation (the degree to which the threats were planned or calculated),the nature and frequency of the threats, any link to earlier actual violence,whether the object of the threat has public office, the ability of the offender toeffect the threat and the allied question of the actual danger to the victim.[36] The Court in Faaleaga indicated that it would have imposed a starting point ofeight to nine months' imprisonment, rather than the 10 months imposed by thesentencing judge. The offender sent a letter from prison threatening to kill certainfamily members (whom he believed had made complaints against his brother). TheCourt held that the threats were made spontaneously and were a "reflection ofimmediate anger" rather than a "campaign to terrorise".17 The offender immediatelyregretted his actions and attempted to stop the letter from being sent. The threat wasnot linked to any earlier violence and was made in circumstances where it was obviousit could not be acted upon for many years. These factors put the offending "towardsthe lesser end" of the spectrum.1814 Faaleaga v R [2011] NZCA 495 at [9].15 Sentencing Act, s 8(e).16 Faaleaga v R, above n 14, at [11].17 At [13].18 At [16].[37] The appellant relies on Burchell v R, Richmond v Police and O'Connor vPolice.19[38] In Burchell v R, the Court of Appeal considered a starting point of eight monthswas excessive and adopted a starting point of four months' imprisonment. Theoffender told a probation officer that:20 he had had enough He knew where the police officer lived whilehe had no intention of going to this officer's house if he saw him again hewould kill him.The police officer in question was not present at the time and the threats werespontaneous. This placed the offending at the lower end of the spectrum of threats tokill police officers.[39] In Richmond v Police, a starting point of nine months' imprisonment wasundisturbed on appeal to the High Court.21 The offender sent various messages to hisformer partner threatening to kill her, during a custody dispute over their children. Themessages read:22SLUTT MUTT BITCH CANT WAIT UNTIL YOU DIE FUCK I WANTED2 SMOKE YOU AT UR WORK ANY WAY LATERS SLUT EVERY BODYNUKS YOU ARE AN SMUK THE P 2 GOT THE FUCKN CHEEKKunt have fucked me right up in the head bitch you ganna get whats comingto you bitch slut hangi pants whore dead bitch walkingI coming for yah[40] The offending was aggravated by the reference to the victim's place of work,which indicated a specific plan of harm and knowledge of her whereabouts. Thethreats were pre-meditated and made directly to the victim over a period of seven days.However, there was no history of actual violence against the victim and the judgeaccepted that "the absence of an immediate ability to effect the threats reduced thelevel of harm caused".2319 Burchell v R [2010] NZCA 314; Richmond v Police [2019] NZHC 2001; O'Connor v Police HCWellington CRI-2008-485-13, 17 April 2008.20 Burchell v R, above n 19, at [6].21 Richmond v Police, above n 19.22 At [6].23 At [29].[41] In O'Connor v Police,24 the High Court considered a sentence of 12 months'imprisonment might have been expected for a charge of threatening to kill (cumulativeon a sentence for breaches of a protection order). The threats were made verbally, inthe context of a domestic assault. The offender said, "I hate you, I'm going to kill youbitch" and told the victim he would take her to the Hutt River, hang her there and thenkill himself. The offending occurred in breach of a protection order, 19 days after theoffender was released from prison, having served a sentence for previous violentoffending against the same victim. The offender visited the victim's home late at nightand forced the door when she closed it on him. He then assaulted her, attempted tosmother her, damaged her property, including breaking her reading glasses, and saidhe would only leave if he could take the couple's three-year-old daughter with him,which the victim refused to allow. There were young children in the house, who werewoken by the assault. The victim was upset, crying, and fearful for her safety. As wellas threatening to kill, the appellant was charged with breach of a protection order, andmale assaults female. The total end sentence, upon conviction on all charges, was twoand a half years.[42] The respondent refers the Court to R v McVeagh and Blair v Police.25[43] In R v McVeagh the Court of Appeal held that a sentence of 15 months'imprisonment was not excessive, where a mentally ill offender sent a letter from prisonthreatening to kill a former member of Parliament. The appellant had a criminalhistory including prior convictions for possession of a firearm and threatening to kill.The safety of the community was a primary consideration.[44] In Blair v Police the District Court Judge adopted a global starting point of18 months' imprisonment on charges of threatening to kill, intentional damage(unrelated), assault on a police officer and resisting arrest. The latter two charges arosewhen the Police spoke to the offender about the alleged threat to kill. The High Courtheld that a starting point of 12 months' imprisonment was appropriate for that groupof charges.26 The offender threatened to kill his partner during an argument over the24 O'Connor v Police, above n 19.25 R v McVeagh CA 140/94, 4 August 1994; Blair v Police HC Dunedin CRI-2010-412-10, 3 May2010.26 Blair v Police, above n 25, at [19].phone. He told her that if she called the Police, he would shoot her, her mother, herfather and her brother in the head and then burn down her house and smash everywindow in her mother's house. The couple had a two-year-old child at the time. Healso texted her threatening to kill her. The Court considered that the threat was"somewhat implausible" and accepted the appellant's contention that he did not meanto carry the threat through. He had no previous convictions for violence.27Analysis[45] All but one of the culpability factors identified by the Court of Appeal inFaaleaga v R are present in Mr Haynes' case. First, the threats were premeditated. Ido not accept the submission that they were spontaneous given that they continuedinto a second day. They were calculated to instil fear of actual violence, repeated overthe course of two days, linked to earlier actual violence for which Mr Haynes had beenimprisoned, and made in circumstances in which the victim knew Mr Haynes wascapable of such violence.[46] As to the specificity of the threats, the Judge noted Ms Dickson's submission(repeated in this Court) that the lack of detail about when or where such threats wouldbe carried out detracts from their seriousness. The Judge said that she accepted suchan assessment would be available in some cases, but in this case she did not accept thesubmission given the serious history of violence upon the victim.28 I agree with thatanalysis.[47] In my view, Burchell v R and R v McVeagh do not assist the Court's assessment.Both concern threats to kill a person in public office; there was no history of violenceagainst the specified target of the threats, and no immediate opportunity to carry outthe threats.[48] Threats to kill which are made in the context of an intimate relationship,particularly where there is a history of actual domestic violence, raise special concernsfor the Court. A female victim, who is the current or former sexual partner of the27 At [16].28 Police v Haynes, above n 4, at [24].person making the threats, is both physically and psychologically vulnerable. Theaggressor will know her home address, place of work, friends and family. There maybe children involved. He will know how to frighten her, and which types of threatsare likely to be most effective. If there is a history of actual violence against the victim,the threats will be very real. Where the threats are made in breach of a protection orderor non-contact conditions, those court orders will often indicate a long-standingpattern of fear and intimidation. Mr Haynes' offending falls squarely into this categoryof offending.[49] In comparison with the cases concerning intimate partner violence, I considerthat two factors are critical to the assessment of culpability in this context: whether theoffender had (a) a history of significant violence against the victim and (b) animmediate ability to carry out the threat. Both factors are germane to the likelihoodof the threat actually being carried out, and thereby the psychological effect on thevictim.[50] There are important parallels between this case and O'Connor: a history ofserious domestic violence against the victim resulting in a sentence of imprisonment,recent release from prison, a relationship break up initiated by the victim, and thebreach of court orders put in place to protect the victim. However, the threat to kill inO'Connor was made during a physical confrontation between the offender and thevictim, in circumstances where the offender had the immediate ability to carry out thethreat in some way.[51] In O'Connor, the offender told his partner (during an extended physicalconfrontation in her home) that he would kill her by hanging her at the Hutt River, andthen kill himself. The offender's threats appear to have been spontaneous, desperateand included a suicide threat. As noted, the offender had recently been released fromprison, having served a sentence of imprisonment for serious assault on the victim,and was in breach of a protection order. As noted above, the High Court considered acumulative sentence of 12 months' imprisonment would have been appropriate for thethreatening to kill charge. The District Court Judge had taken a starting point ofbetween 15 and 18 months' imprisonment on the charge of threatening to kill, beforediscounting it to 12 months to reflect the guilty plea.29 Therefore, the appropriatestarting point was actually higher than the sentence considered appropriate on appeal.[52] Like Mr Haynes, the offenders in Richmond and Blair threatened to kill theirpartners or former partners via telephone or text messages, in circumstances where"the absence of an immediate ability to effect the threats reduced the level of harmcaused".30 All the offenders used aggressive, intimidating language, calculated tofrighten their female victims. However, although the offenders in Richmond and Blairverbally abused and psychologically intimidated their partners, there was no historyof physical violence towards the victim in either case, and no previous convictions forviolence.[53] In Richmond, the offender told his former partner (during a custody dispute)that he couldn't wait until she died, wanted to kill her at her place of work, that shewas a "dead bitch walking" and he was coming for her. The offender used extremelyoffensive and degrading language, and sent the messages over a period of seven days(implying pre-meditation). As noted, the impact of the threats was mitigated by thelack of any history of actual violence against the victim. A starting point of ninemonths was left undisturbed on appeal.[54] In Blair, the offender told his partner (during a heated argument) that if shecalled the Police, he would shoot her dead along with three of her close familymembers. The Court found that the impact of the threat was mitigated by itsspontaneity, implausibility, context of high stress in relation to Police, and the fact thatthe offender had no previous convictions for violence. On appeal a starting point of12 months for the charge of threatening to kill and other charges was consideredappropriate.[55] In comparison, Mr Haynes told his victim (via text messages) that she would"end up in a drain" if she didn't return a ring to him. The next day he wrote:Right now I could watch you die and just stare in your eyes and smile as youpass.29 O'Connor v Police, above n 19, at [13].30 Richmond v Police, above n 19, at [29].I would breathe a sigh of relief as I felt your presence leave.[56] In my view, Mr Haynes' threats were more manipulative and sinister than thosemade in the comparator cases. Mr Haynes explicitly stated that he would take pleasurein killing the victim and enjoy watching her die. The threats are malicious, vengefuland calculated to cause extreme psychological distress. I agree with the finding ofJudge Jelaš that the lapse of time between the victim's message breaking off herrelationship with Mr Haynes and the two messages sent the following day, indicatesthat the threats were not spontaneous or reactive.[57] I do not accept Ms Dickson's submission that the sentencing judge double-counted the callousness of Mr Haynes' language because she also counted the effecton the victim as an aggravating factor. Judge Jelaš considered a range of factors beforearriving at a global starting point. These factors are necessarily inter-related. Thereis no suggestion in the Judge's sentencing remarks that double-counting inadvertentlyoccurred.Was the starting point manifestly excessive?[58] Given the above analysis, I find that the global starting point of 14 monthsimposed on Mr Haynes for all four charges is not manifestly excessive. The startingpoint incorporated two breach of release conditions and one driving while disqualified(third or subsequent) charge as well as the charge of threatening to kill. Mr Haynes'offending sits comfortably between O'Connor and Blair. In O'Connor the startingpoint would presumably have been in excess of the indicated appropriate end sentenceof 12 months' imprisonment on the threatening to kill charge alone. In Blair, althougha starting point of 12 months included other charges (as is the case here), theaggravating factors that exist in this case were not present in Blair.[59] I accept that the absence of an immediate ability to carry out the threats reducedthe level of harm caused in this case. However, as observed by Duffy J in Richmond,the fact that the threats were made electronically does not detract from theirseriousness, particularly in circumstances where the victim knows that the personmaking the threats is capable of carrying them out because of a history of actualviolence.31 Mr Haynes was at liberty at the time the messages were sent, and thevictim was very well aware of his capacity for actual violence against her, havingpreviously survived an assault and attempted strangulation. I am satisfied that thesentence imposed by Judge Jelaš was appropriate and within the available range.Uplift[60] This Court is concerned with the end sentence. I have determined that the endsentence was within the available range. In those circumstances it is not strictlynecessary to consider the uplift but I do so briefly.[61] I do not accept the suggestion that there was a double counting of Mr Haynes'previous convictions as a consequence of the Judge having earlier taken into accountMr Haynes' 2020 offending against the victim. Mr Haynes has an additional 80 priorconvictions and notations, a number of them involving family violence, over andabove the convictions for the 2020 offending. While the uplift was a significant one(just under 20 per cent of Mr Haynes' end sentence), in all the circumstances I acceptit was proportionate.Result[62] The appeal is dismissed._____________________________Gordon J31 Richmond v Police, above n 19, at [35].