NEWTON v NEW ZEALAND POLICE [2019] NZHC 1923

NEWTON v NEW ZEALAND POLICE [2019] NZHC 1923 [8 August 2019]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2019-454-16[2019] NZHC 1923BETWEEN JESSE ARIADNE NEWTONAppellantAND NEW ZEALAND POLICERespondentHearing: 7 August 2019Counsel: J Younger for AppellantK T Van der Plas for CrownJudgment: 8 August 2019JUDGMENT OF CHURCHMAN JIntroduction[1] On 13 May 2019, the appellant, Mr Newton, was sentenced by Judge Moss inthe Palmerston North District Court to two years and three months' imprisonment onthe following charges:1(a) threatening to cause grievous bodily harm;2(b) assault with intent to injure;3(c) three charges of driving whilst disqualified;41 New Zealand Police v Newton [2019] NZDC 8873.2 Crimes Act 1961, s 306, maximum penalty seven years' imprisonment.3 Section 193; maximum penalty three years' imprisonment.4 Land Transport Act 1998, ss 32(1)(a) and (4); maximum penalty two years' imprisonment or a fineof $6000.(d) possession of a class B drug;5 and(e) possession of utensils.6[2] He appeals his sentence on the ground that the sentence imposed is manifestlyexcessive.[3] The Crown opposes the appeal.Factual background[4] Mr Newton and the victim were previously in a relationship for seven years.There have been five previous family harm incidents between Mr Newton and thevictim which have included the issuing of two Police safety orders.[5] On 6 November 2017, Mr Newton was disqualified from driving for a periodof one year and one day. He had 13 prior convictions for driving either whilstdisqualified, suspended or revoked.[6] On 19 October 2018, Mr Newton was seen by Police riding a motorcycle andstopped. He has never held a motorcycle licence.[7] On 23 October 2018, Mr Newton was stopped by Police whilst driving. A fewdays later, on 27 October, he went to the victim's home address. They started arguingand Mr Newton threw the victim onto the bed, grabbing her around the throat withboth hands and squeezing her neck until she passed out.[8] When the victim regained consciousness, she kept telling Mr Newton that shecould not breathe. He responded by threatening to choke her again and, when sheescaped next door, he drove away.5 Misuse of Drugs Act 1975, ss 7(1)(a) and (2); maximum penalty three months' imprisonment or afine of $500.6 Sections 13(1)(a) and (3); maximum penalty one year's imprisonment and/or a fine of $500.[9] Some weeks later, on 6 December 2018, Police located Mr Newton in a car andarrested him. A small bag containing cannabis oil was identified in the car, as was aglass pipe.District Court decision[10] The Judge observed that there were two strands to Mr Newton's offending: thedriving offending and the more serious domestic violence offending.7[11] Discussing the charge of threatening to do grievous bodily harm, the Judgesaid:[6] The assault with intent to injure involved restricting her airway to thepoint that she passed out. The threat to do grievous bodily harm to herinvolved, in that same time and space when she was asking you to help herbreathe, you threatened to choke her again. I cannot perceive of a worse threatto cause grievous bodily harm. [The victim] knew that you had done it, youcould do it again, you were right there in her face and so the usual mitigatingthings which the Court hears like it was only by text message or all sorts ofother things simply cannot apply here and in fact the circumstances of thatthreat aggravate the level of sentence or raise the level of sentencing.[12] The Judge took the threat to do grievous bodily harm as the lead charge becauseit had a higher level of criminality, involving a high level of intimidation, and had ahigher total maximum level of imprisonment.8 It is clear that in analysing theseriousness of the offending, the Judge confused the decisions of Taueki9 and Nuku vR10 and referred to the former when she had intended to refer to the latter.[13] Taking into account the aggravating features, it was noted that the offendingoccurred within the victim's home, it involved an attack to her head, and she wasparticularly vulnerable as she had just been rendered unconscious and wasrecovering.11 The Judge accordingly placed this offending in band 3 of what sheincorrectly referred to as Taueki, putting the starting point for imprisonment in the7 New Zealand Police v Newton, above n 1, at [5].8 At [7].9 R v Taueki [2005] 3 NZLR 372 (CA).10 Nuku v R [2012] NZCA 584.11 New Zealand Police v Newton, above n 1, at [8].range of between two years and the maximum of seven years' imprisonment. Shedetermined that the proper start point was three years' imprisonment.12[14] The driving while disqualified charges were treated as a cluster of three chargeswith a starting point of 18 months' imprisonment.13[15] Assessing the totality of the sentence of four and a half years' imprisonmentwas too high, the Judge considered that the proper starting point would be three and ahalf years. She noted that she had already calculated the aggravating circumstancesin that sentence start point.14[16] That left the mitigating circumstances to be taken into account, and the Judgenoted Mr Newton's remorse, as evidenced by his offering emotional harm reparation,along with letters. His plans for rehabilitation were also noted, as was the supportfrom his family. The total effect of these mitigating factors was to reduce Mr Newton'ssentence by 15 per cent. A full Hessell discount of 25 per cent for his guilty plea wasalso granted.15 A final sentence of 27 months' imprisonment was imposed on thethreatening to kill charge, with concurrent 12-month sentences imposed in relation toall of the other charges.16Approach to appeal[17] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion and must only be allowed ifthe Court is satisfied that, for any reason, there was an error in the sentence imposedand a different sentence should have been imposed.17 The focus is on the finalsentence and whether that was in the available range, rather than the exact process bywhich it was reached.1812 At [9].13 At [11].14 At [12].15 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.16 New Zealand Police v Newton, above n 1, at [14].17 Tutakangahau v R [2014] NZCA 279.18 Ripia v R [2011] NZCA 101 at [15].Starting point[18] Counsel for Mr Newton, Ms Younger, contends that the Judge erred by wronglyidentifying the lead charge as the threatens to do grievous bodily harm, arguing thatthe lead charge should have been the intent to injure charge in terms of the criminalityof the offending.[19] Counsel for the respondent, Mr Van der Plas, submits that the Judge wasentitled to use the charge of threatening to do grievous bodily harm as the lead chargewhen considering the facts of this offending and was not wrong nor unable to do this.He cited a number of cases which involved instances of actual physical violence,where charges of threatening to do violence were taken as the lead charge.19 Inparticular, reliance was placed on the case of Marsh v Police in which the appellantargued that the Judge had erred in adopting the threatening to kill charge as the leadcharge, submitting that the assault with intent to injure was more appropriate as thelead charge. Chisholm J noted:[17] To my mind it does not matter whether the lead charge is the threat tocause grievous bodily harm or the assault with intent to injure. Whichevercharge is adopted the features arising from the other charge will need to betaken into account as aggravating factors. Ultimately the overall culpabilityof the appellant has to be taken into account and weighed against the totalityprinciple.[20] It is my view that the Judge, having explained her reasoning for taking thethreatening to do grievous bodily harm as the lead charge, was justified in doing so,as she was then taking into account the features that arose from the assault with intentto injure charge as aggravating factors. As the Judge noted, the victim had just beenchoked and rendered unconscious, and was in what could only be described as avulnerable state. Her attacker remained present and was threatening to repeat hisactions. This was not a threat from a distance, but one where he was there and hadjust shown he was willing and able to carry out his threat. Although he did not actuallycarry out his threat on this occasion, the offence is one of threatening. The threat onthis occasion was, for the reasons identified by the Judge, a particularly serious one.The offending is such as to warrant it being the lead charge.19 Dermer v R [2018] NZHC 1895; Marsh v Police HC Invercargill CRI-2008-425-16, 1 July 2008.[21] Ms Younger submitted that in many similar cases locally, the Court had takenthe assault charge as the lead offence and then dealt with the threat as an aggravatingfeature. That may be so, but it cannot be argued that the Court was bound to take thisapproach.[22] Ms Younger further submits that the Court was then wrong to apply Taueki tothe threatening charge as this is a tariff decision providing culpability factors forserious violence offences, whereas for lower level "with intent to injure" violencecharges, the Court of Appeal case of Nuku v R identified a different level of bands torecognise lower levels of criminality.20 It is submitted that even the bands identifiedin Nuku could not be applied to this matter as they are not meant to be applied to acharge of assault with intent to injure laid under s 193 of the Crimes Act 1961. In heroral submissions, Ms Younger retreated from this proposition.[23] Mr Van der Plas concedes that the Judge did make an error when stating thatshe was applying Taueki when the content of her sentencing remarks indicates she wasactually referring to Nuku. He accepts that Taueki is not directly applicable to thecircumstances of this case, however it was argued that its aggravating factors areapplicable where Nuku is referenced.[24] Mr Van der Plas submits that there is no tariff case for threatening to dogrievous bodily harm and it was not necessarily incorrect to refer to other violencecases when looking for an appropriate starting point in the circumstances; the cases ofTaueki and Nuku merely confirmed the aggravating factors that applied in this case.He points to the Court of Appeal decision of Faaleaga v R which set out aggravatingfactors when considering the offence of threatening to cause grievous bodily harm,including any link to earlier actual violence, the ability of the offender to effect thethreat and the allied question of the actual danger to the victim.21 It is submitted thatthese factors are relevant and were appropriately considered by the Judge in sentencingMr Newton. He also referred to the cases of Tamihana v R22 and Harris v R23 asauthority for this proposition.20 Nuku v R [2012] NZCA 584.21 Faaleaga v R [2011] NZCA 495 at [11].22 Tamihana v R [2015] NZCA 169.23 Harris v R [2017] NZHC 1404.[25] As noted above, the Judge made no error in taking the threatening to dogrievous bodily harm as the lead charge. Given that there is no tariff decision on thischarge, the circumstances in which such threats will be made varying too widely, whileit was open to the Judge to refer to the cases of Taueki and Nuku in terms of identifyingaggravating factors, their bands were not of direct assistance in arriving at a startingpoint for this lead charge. That being said, the aggravating factors identified in thosecases correspond to some of those provided for in s 9 of the Sentencing Act 2002,namely that the offence involved threatened violence24 and the victim wasvulnerable.25[26] While Ms Younger has provided a number of cases said to be comparable, inwhich the lead charges were strangulation, injuring with intent, or assault with intent,she did not provide any where threatening to do grievous bodily harm was the leadcharge. This, it can be said, is because there are few cases available. One is Taylor vPolice, in which a sentence of 28 months' imprisonment was quashed; a start point of18 months was held to be appropriate with an uplift of six months for previous history,and a three-month totality uplift to reflect charges of assault and resisting police.26However, as noted, comparison with other cases can be of limited assistance wherethe seriousness of the offending is heavily fact dependent.[27] It is my view that the start point of three years on the threatening to kill chargewas, arguably, high. However, once the driving while disqualified charges were takeninto account and the start point of four and a half years' imprisonment was reached,the Judge acknowledged that, taking the totality of the offending into account, thatstart point was too high and she reduced it down to three and a half years. The questionthen is whether this start point is manifestly excessive. Given the context in which thethreatening to kill charge was made, it is my view that this was a relatively seriousincident warranting a start point of at least two years. Ms Younger submits that, takinginto account the nature of the driving while disqualified charges and the drugs charges,an overall sentence on those charges of 15 months' imprisonment would have beenappropriate. That would bring the start point to three years and three months'24 Sentencing Act 2002, s 9(a).25 Section 9(g).26 Taylor v Police [2014] NZHC 1139.imprisonment which is not that much less than that arrived at by the Judge. Once thecalculations for discounts are taken into account, the difference in end point is only alittle more than two months. As the focus is on the end sentence, it is my view thatthe sentence imposed cannot be said to be manifestly excessive.[28] Given my finding on the end sentence, it is not necessary to address the otheraspects of the appeal such as the application for home detention and for s 94 of theLand Transport Act 1998 to be invoked.Result[29] For the reasons given above, the appeal is dismissed.Churchman JSolicitors:BVA The Practice, Palmerston North for CrownCounsel:Square Legal Chambers, Palmerston North for Appellant