CARROLL v POLICE [2023] NZHC 3293

CARROLL v POLICE [2023] NZHC 3293 [21 November 2023]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2023-441-11[2023] NZHC 3293BETWEEN JERMAHL MATHEW CARROLLAppellantAND NEW ZEALAND POLICERespondentHearing: 14 September 2023Appearances: E J Foster for the AppellantM J R Blaschke for the RespondentJudgment: 21 November 2023JUDGMENT OF PALMER JSolicitorsE J Foster, Barrister, HastingsElvidge & Partners, NapierWhat happened?[1] Mr Jermhal Carroll, aged 37, pleaded guilty to:(a) one offence of assault with a weapon and one offence of assault on aperson in a family relationship, which carry maximum penalties of fiveyears and two years' imprisonment, respectively;1(b) nine offences of breaching a protection order, two by family violenceand seven by unauthorised contact, the maximum penalty for each ofwhich is three years' imprisonment;2 and(c) one offence of resisting arrest and one offence of breach of releaseconditions, which carry maximum penalties of three months and oneyear's imprisonment respectively.3[2] These offences all arose out of interactions between Mr Carroll and his thenpartner, with whom he had been in a relationship for many years and has a son:(a) Around 6 am on 9 August 2022, Mr Carroll visited, woke and tried tokiss the complainant who was in bed with their son. She told him shedid not want to be in a relationship anymore. He punched her twice,hard, in the back of the head and stabbed her on the top of her head withhis car keys, causing her head to bleed.(b) Around 9.40 am the same day, Mr Caroll returned and blocked thecomplainant's car in the driveway with his, while she was trying toleave the address. He punched her doors and windows and tried to pullthe windows down to gain access. He fled when she phoned 111 anddrove away. He phoned the complainant constantly, making commentssuch as he was "going to chuck her in the boot, rub shit all over her,and take her out, with him".1 Crimes Act 1961, ss 194A and 202C.2 Family Violence Act 2018, ss 90(a) and 112.3 Summary Offences Act, 1981, s 23; and Parole Act 2002, s 71.(c) On 11 August 2022, Mr Carroll sent an abusive text to the victim around2 am, came to the address, and tried to open a window to gain entry.He abused and threatened her. She activated a family safety alarm andhe fled. He continued to text and phone her throughout the day,including asking her to come outside for sex.(d) On the afternoon of 13 August 2022, the complainant arranged forMr Carroll to come over to discuss her being pregnant to him again. Hefailed to meet her at the agreed time and she told him not to come toher house. At 3 am the following morning, he broke into her housewhile she was asleep. She activated the family safety alarm and he fled.(e) On the morning of 14 August 2022, the complainant told Mr Carroll hewas not welcome at her house. But he returned to the house again,uninvited. The complainant allowed him to take their son out for twohours.(f) Around 7.30 am on the morning of 15 August 2022, Mr Carroll showedup again trying to speak with the complainant. She said she did notwant him there. He took the family safety alarm, telling her he wastaking it so she could not activate it.(g) Around 2.50 am on 18 August 2022, the Police located and arrested MrCarroll who attempted to flee and had to be subdued.[3] At the time of this offending, there was a protection order against Mr Carroll,prohibiting him from harming, engaging in non-consensual contact, or encouragingothers to harm or contact the complainant.[4] Overall, Mr Carroll has 15 previous convictions for assault, including for maleagainst female or assault on a person in family relationship. Three were for causinginjury or intending to cause injury. He has 14 previous convictions for breach of aprotection order since 2017. There was also a conviction for burglary in a familyviolence context. In particular:(a) On 22 April 2020, Mr Carroll was sentenced for injuring with intent toinjure and common assault against the same victim as here, breachingpost-release conditions. He was sentenced to five months'imprisonment.(b) On 4 May 2021, Mr Carroll was sentenced to imprisonment for threefamily violence offences against the same victim as here: breach of aprotection order, wilful damage, and breaching release conditions.(c) On 18 May 2022, Mr Carroll was sentenced by Judge G Matenga, inthe Hastings District Court, for three offences of breaching a protectionorder, assault on a person in a family relationship, and a breach ofrelease conditions.4 These offences also related to the complainant hereand involved similar abusive, threatening, and violent behaviour,including punching the complainant in the face.[5] In relation to the May 2022 sentence, the Judge accepted Mr Carroll'sstatement of remorse, for which he allowed a discount of five per cent.5 The Judgehad regard to the same s 27 report that was considered in the sentencing for theoffending here. He accepted there were a number of factors in Mr Carroll'sbackground that may be linked to his offending. He noted Mr Carroll had observedconsiderable violence in childhood, had endured sexual abuse, and intergenerationalincarceration.6 He told Mr Carroll he needed to take the opportunity to sort out theissues.7 The Judge allowed a discount of 15 per cent for Mr Carroll's personal issues.8The end sentence was 13 months' imprisonment with standard and special releaseconditions for six months post-detention.9 He was released from prison on 15 June2022, less than two months before he committed the offending at issue here.4 New Zealand Police v Carroll [2022] NZDC 9169.5 At [10] and [21].6 At [16].7 At [17].8 At [21].9 At [23]–[24].[6] Mr Carroll pleaded guilty on 19 January 2023. On 11 May 2023,Judge R J Collins sentenced Mr Carroll in the District Court at Hastings to three yearsand four months' imprisonment:10(a) The Judge summarised the victim impact statement and the Correctionspre-sentence report, which disclosed a significant amount ofvictim-blaming, and a high risk of re-offending.11(b) The Judge acknowledged the report prepared by Dr Jarrod Gilbertunder s 27 of the Sentencing Act 2002. It reviewed Mr Carroll's historyof exposure to alcohol abuse and being subject to violence. The Judgewas not so sure that his background contributed causatively to theoffending.12 But he noted that, on 18 May 2022, Mr Carroll hadreceived a material discount for the same report.13 He did not allowany further discount due to Mr Carroll's repeat offending against thecomplainant, which was sustained and pre-meditated.14 He emphasisedthe importance of protecting the complainant.15(c) The Judge set a starting point of two and a half years' imprisonment forthe offending on 9 August 2022: assault with a weapon; assault on aperson in a family relationship; and three breaches of the protectionorder.16 He uplifted that by 18 months' imprisonment for the sixsubsequent breaches of the protection order.17 He did not make anyuplift for previous convictions as he considered that was built into thegravity of the offending.18(d) The Judge gave a 15 per cent discount for an early guilty plea, takinginto account the lack of any defence to the breaches of the protection10 New Zealand Police v Carroll [2023] NZDC 9199.11 At [22].12 At [26].13 At [24] and [27].14 At [28].15 At [28].16 At [29].17 At [30].18 At [31].order evidenced by texts.19 He did not consider Mr Carroll to begenuinely remorseful and gave no further discounts.20Appeal[7] Mr Carroll appeals the sentence. Under s 250 of the Criminal Procedure Act2011, I must allow the appeal if satisfied that, for any reason, there has been a materialerror in the sentence imposed and a different sentence should be imposed. Otherwise,I am required to dismiss the appeal. The focus is on whether the end sentence is withinthe available range.21 The Court will only intervene and substitute its own views onappeal if the sentence is "manifestly excessive".22[8] The notice of appeal was filed one day late but this did not prejudice the Policewho responsibly take no issue with it. I grant leave for the appeal to be brought out oftime, in the interests of justice.Issue 1: Starting point and upliftSubmissions[9] Mr Forster, for Mr Carroll, submits the Judge erred in adopting a starting pointfor the 9 August 2022 offending and adding a cumulative starting point for the otherbreaches of the protection order. Taking into account the totality of offending andcomparable cases, the overall starting point should have been three years'imprisonment.[10] Mr Blaschke, for the Police, submits the sentencing for the offending after9 August 2022 was not added cumulatively. Rather, there was an uplift and anadjustment for totality. Mr Carroll accepted a three-year combined starting point withan uplift of nine months in the District Court, so four years is not manifestly excessive.The seriousness of the further breaches of the protection orders amply justifies an18-month uplift.19 At [32].20 At [33].21 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27], [33], and [35].22 Ripia v R [2011] NZCA 101 at [15].The starting point[11] As Mr Forster submits, the Court of Appeal has held that, in cases such asthese, concerning episodes of family violence, the starting point should be set havingregard to the case in the round and with regard to all aggravating and mitigatingfactors.23[12] Here, I consider the aggravating factors included the conventional factors of:attack to the head; occurrence of much of the offending at night, when the complainantwas likely to be asleep and more vulnerable; and offending while subject topost-release conditions. In addition, the following factors also aggravate familyviolence offending such as this:(a) The offending, involving violence and intimidation, occurred in thecomplainant's own home, where, if anywhere, she should have beenable to expect to feel safe.24(b) Most of the offending occurred in the presence of their child. There areimmediate and long-term effects on children who witness violence intheir homes,25 and the complainant's victim impact statement outlineshow this violence has impacted her children.(c) The multiple incidents of family harm, in the context of a violent andabusive relationship, creates a cumulative effect that often manifests ina complainant living in a constant state of fear or intimidation.26 Thatis clearly so here. It involves psychological injuries.(d) The manifestations of an abuser's exercise of power and control overan intimate partner victim, such as her isolation and deprivation from23 See Johnstone v R [2013] NZCA at [58]; Wati v R [2015] NZHC 2064 at [19]; and Still v Police[2019] NZHC 2730 at [44].24 Solicitor-General v Hutchinson [2018] NZCA 162, [2018] 3 NZLR 420.25 Still v Police, above n 23, at [52] citing Mohib v Police [2017] NZHC 123 at [59]–[60].26 At [53].assistance, exacerbate her fear.27 Mr Carroll's theft of thecomplainant's family harm alarm is a good example.[13] The aggravating factors take the 9 August 2022 offending well into band 3 ofR v Nuku, with a starting point of between two to five years' imprisonment.28 Iconsider there was no error in the Judge adopting a starting point of two and a halfyears' imprisonment for the 9 August 2022 offending. Mr Forster concedes that.Given the aggravating factors, the starting point for the 9 August 2022 offending alonecould have been greater.Uplift[14] Mr Forster portrays the additional 18 months for the other breaches of theprotection order as an additional starting point which should not have been cumulativeon the starting point for the 9 August 2022 offending. However, the Judge was explicitin formulating the 18 months as an uplift to the starting point for the 9 August 2022offending, not another starting point.29 While a single starting point could have beenset in relation to all the offending, given its proximity in time and nature, it is not anerror to set a starting point and apply an uplift, as the Judge did, if the resulting globalstarting point is within the range available as a starting point for all of the offending.[15] In relation to protection orders, in the High Court decision ofMorris-Stewart v Police, Wylie J stated:30[15] The Court of Appeal has stated that the Courts should uphold the integrityof protection orders and respond sternly to those who flout their force andeffect. Orders are intended to ensure that the recipient of the protection orderis secure and inviolate. Repeated breaches of protection orders call for acondign sentencing response. Where there has been repeat offending over abrief period of time, a short term of imprisonment is the proper response.[16] The breaches of protection orders constituted serious offending,incommensurate with an uplift of only six months. As Mr Blashke submits, the threaton 11 August 2022 was particularly serious and, in isolation, could have attracted a27 At [54].28 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].29 New Zealand Police v Carroll, above n 10, at [30].30 Morris-Stewart v Police [2016] NZHC 1030 citing R v Cartwright CA175/02, 28 August 2002 at[20]–[21].starting point of 12 months' imprisonment.31 The breaches involving attempting toenter the complainant's house at night would also have merited significant startingpoints on their own.[17] I consider there is no error in the amount of the 18-month uplift for theadditional breaches of the protection order, resulting in a global starting point of fouryears. That was within the range available to the Judge.[18] Indeed, a further uplift could have been available for Mr Carroll's previousrelated criminal history, including 27 convictions relating to family harm since 2004,with 22 of them within the last six years. The most recent offending, before thisoffending, occurred in 2021 against the same complainant. That consisted of threebreaches of a protection order and assault on a person in a family relationship. And afurther uplift could have been imposed for being on release conditions at the time ofthis offending.Issue 2: Discount for personal circumstancesSubmissions[19] Mr Forster submits the Judge erred in not awarding a discount for the factorsoutlined in the s 27 report. Mr Carroll's background of deprivation has made him lessadaptive and less mature with a lack of emotional intelligence and an inability toregulate his behaviour, which is a causative link to this offending. He had less personalagency; he was programmed to perform the offending. The fact-specific question is:what has changed since the last offending to give Mr Carroll greater personal agencyin his offending this time? That might include offending for gain, premeditation, orrefusing to take an opportunity to rehabilitate, but those are not present here. Adiscount of between 10 and 25 per cent is warranted.[20] Mr Blascke submits the Judge was correct to refuse a discount for the factorsin the s 27 report based on an intensely fact-specific assessment of this high-riskoffender being sentenced so soon after the previous offending in May 2022. There31 See Crean v New Zealand Police [2015] NZHC 3203; and Cooke v New Zealand Police [2014]NZHC 3224.will be a point at which background factors no longer assist in explaining offendingand where other sentencing goals become more important, depending on the facts.Was there an error in not awarding a discount?[21] In Berkland v R, the Supreme Court explained why information about offenderbackground is important in sentencing:32(a) The statutory purposes, principles, and factors for sentencing, requirejudges to dispense individualised justice.33 So, it is important asentencing judge understands the offender's background.(b) Section 8(e) of the Sentencing Act 2002 requires that "similar offenderscommitting similar offences in similar circumstances" should receivesimilar treatment. Proper consideration of background mitigates therisk of sentencing inconsistency.34(c) Punishment is premised on offender agency, which may be affected bytheir background, so culpability must be assessed by reference to theoffender.35 The obvious examples are offender age and mentalwellbeing or capacity.(d) Background will also be important in deciding which, if any, of theoutcome-focused instrumental purposes of sentencing are activated,including deterrence, denunciation, community protection and offenderrehabilitation and reintegration.3632 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [89].33 See, for example, the sentencing purposes in the Sentencing Act 2002, s 7(1)(a), (b), (e), (f), (g)and (h); the sentencing principles in s 8(a), (c), (d), (e), (h) and (i); and the aggravating andmitigating factors in s 9(1)(h), (1)(j), (2)(a), (2)(e), (2)(f) and (2)(g).34 At [90].35 At [91] citing Professor Nathan Berg The Deterrent Effect of Sentencing on Illicit DrugSuppliers?: An Overview of Rational Choice and Behavioural Economics Approaches.36 At [92].[22] The Court said the relevance of an offender's background does not in any wayreduce the importance of acknowledging the harm caused by an offender, in particularthe harm to victims, and:37There are other sentencing purposes and principles such as deterrence,denunciation and community protection. Where offending is particularlyserious these principles will usually be more powerfully engaged. Logically,there will come a point where background, even if it has contributed to theoffending, can have no impact. But that will be a matter for carefulconsideration on the facts of the offence and the offender.[23] The Court also said the following in a footnote at the end of that passage:38In addition to the potential effect of seriousness, a question also arises as tothe impact of background in sentencing for repetitive offending. While this isnot a matter before us we acknowledge that it may raise similar issues. Again,the focus must be on the facts of the offence and the offender. On the one handcriminogenic background factors tend to be reflected in repeat offending.Sentencing judges generally understand this and the need for patience. But weaccept that at some point other sentencing principles however will take over.[24] The Court held that background factors must have a causative contribution tothe offending but noted that there will be a point at which background factors can nolonger assist in explaining offending and may be displaced where the offending isparticularly serious.39[25] All this reflects the complexity of the factors that affect human behaviour. Weare all simultaneously products of our social contexts and have individual agency tovarying extents. Having information about the personal circumstances of anoffender's background assists sentencing courts to calibrate the sentence to the variousobjectives of sentencing for that particular offender. For example, a discount to asentence because of personal circumstances could reflect: the reduced agency of anoffender due to their experiences; that resources applied to a sentence in the interestsof specific deterrence would be wasted because deterrence would not be effective forthat person; or because they have already changed their behaviour throughrehabilitation.37 At [94].38 See footnote 105.39 At [109]–[111].[26] Here, there is a clear causal link between Mr Carroll's childhood experience ofviolence, physical and sexual abuse, parental incarceration, and his offending.Accordingly, he received a 15 per cent discount for his personal circumstances for fourfamily violence offences against the same complainant in May 2022. This reflectedhis reduced agency — his lessened ability to rationally choose optimal and pro-socialbehaviour. It also reflected what the Judge then saw as demonstrated remorse, whichoffers the prospect of rehabilitation.[27] But this offending was not purely instinctive. Mr Carroll had to make an effortto turn up at the complainant's house. Taking the family safety alarm demonstratedan intention to offend again in the future. And Mr Carroll committed this offendingjust three months after receiving that discount which had resulted in a sentence ofimprisonment of 13 months, and just under two months after his release from prisonfor the previous offending. This is the third sentence Mr Carroll has received foroffending against the same complainant since 2021. Understandably, she says shedoes not want him living in Hawke's Bay when he is released.[28] All that casts some doubt on whether Mr Carroll's agency continues to bereduced. It also suggests the sentencing purposes of denunciation, communityprotection, and protection of the victim in particular, should be relatively heightenednow. And Mr Carroll's current opportunities for rehabilitation appear remote.[29] If some level of discount was justified for Mr Carroll's reduced agency becauseof his background, it should have been at a rate that was lesser than his previousdiscount, to reflect the heightened need to denounce his conduct, and to protect thecommunity, and to recognise the lower likelihood of rehabilitation. A discount in therange of zero to eight per cent may have been appropriate.[30] However, the Court will only intervene and substitute its own views on appealif the sentence imposed is manifestly excessive. This focus is on whether the endsentence is within the available range. Here, given the aggravating factors, I havefound that the starting point could have been greater, a further uplift could have beenavailable for Mr Carroll's previous related criminal history, and another uplift couldhave been given for being on post-release conditions at the time of the offending.Given those factors, even if a full eight per cent discount should have been made forpersonal circumstances, the sentence imposed was within the range available to theJudge. The sentence imposed was not manifestly excessive.Result[31] I dismiss the appeal.Palmer J