NEWTON v R [2019] NZCA 604

NEWTON v R [2019] NZCA 604 [2 December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA444/2019[2019] NZCA 604BETWEEN JESSE ARIADNE NEWTONApplicantAND THE QUEENRespondentCourt: Collins, Brewer and Gendall JJCounsel: J A Younger for ApplicantK L Kensington and C Ure for RespondentJudgment:(On the papers)2 December 2019 at 10.00 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Newton applies for leave to bring a second appeal against his sentence oftwo years three months' imprisonment imposed in the District Court following hispleas of guilty to the following charges:1(a) threatening to cause grievous bodily harm;21 Police v Newton [2019] NZDC 8873.2 Crimes Act 1961, s 306; maximum penalty seven years' imprisonment.(b) assault with intent to injure;3(c) driving while disqualified (three charges);4(d) possession of a Class B drug (cannabis resin);5 and(e) possession of utensils.6[2] The sentence was upheld by Churchman J on appeal.7Discussion[3] The Court must not grant leave for a second appeal unless satisfied that:8(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred or may occur unlessthe appeal is heard.[4] Counsel for Mr Newton submits this case involves matters of general or publicimportance. The first is that Judge Moss in the District Court mistakenly referred tothe tariff case of R v Taueki when it seems she intended to refer to Nuku v R.9Churchman J recognised the error and considered that, while it was open toJudge Moss to refer to either case their bands were not of direct assistance thoughthe aggravating factors they identify correspond to some of those in the SentencingAct 2002.10 It is submitted it is of general and public importance that this Court clarifythe relevance of Taueki and Nuku to charges of assault with intent to injure orthreatening to cause grievous bodily harm.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 $6,000.5 Misuse of Drugs Act 1975, ss 7(1)(a) and (2); maximum penalty three months' imprisonment ora fine of $500.6 Sections 13(1)(a) and (3); maximum penalty one year's imprisonment and/or a fine of $500.7 Newton v Police [2019] NZHC 1923.8 Criminal Procedure Act 2011, s 253(3).9 Police v Newton, above n 1, at [8]; R v Taueki [2005] 3 NZLR 372 (CA); and Nuku v R [2012]NZCA 584, [2013] 2 NZLR 39.10 Newton v Police, above n 7, at [25].[5] We are not persuaded by this argument. Churchman J corrected Judge Moss'sreference to Taueki, held that the culpability factors set out in Nuku can usefully beapplied to charges of threatening to cause grievous bodily harm and reached his ownview of an appropriate starting point for the charges faced by Mr Newton.11 There isnothing to clarify.[6] Second, counsel for Mr Newton submits that Churchman J's judgment doesnot provide adequate reasons for upholding the sentence in the District Court becausesimilar cases are not discussed. It is submitted this contravenes s 8(e) ofthe Sentencing Act, being the requirement for the sentencing Court to seek generalconsistency with relevant sentencing levels. Counsel further submits that transparencyin sentencing is of general and public importance.[7] We are not persuaded by this submission. Churchman J's decision sets out thebasis on which he reviewed the District Court Judge's sentencing decisions. A moreacademic treatise might have been of greater assistance to counsel in future cases butthat does not warrant intervention by this Court as a matter of general or publicimportance.[8] Mr Newton's third ground is that Churchman J found the District Court's endsentence of two years three months' imprisonment to be perhaps two months longerthan he would have imposed but did not consider that made the District Court sentencemanifestly excessive.12 The submission on behalf of Mr Newton is that the Judgeshould have factored the difference in parole considerations between a two-yearsentence or less and a sentence in excess of two years into his assessment of whetherthe end sentence was manifestly excessive. A sentence of two years or less bringsautomatic release after one-half of the sentence is served.13 A sentence longer thantwo years' imprisonment means parole will be considered after one-third ofthe sentence has been served but there is no guarantee of release.1411 At [25] and [27].12 At [27].13 Parole Act 2002, s 86(1).14 Sections 20 and 84(1).[9] Generally, parole consequences are irrelevant to sentencing.15 That is notan inflexible rule, and in certain cases parole considerations may be taken into accountto ensure a just sentence.16 This Court has acknowledged that sentencing courts oftenat least implicitly take into account the likely impact of the parole regime, and thatdoing so for a legitimate purpose in evaluating the appropriate sentence is lawful.17However such cases are not the norm. In Lord v R this Court considered an appellant'sargument that his long-term sentence should be substituted for a short-term sentencein order to ensure he would be automatically released after serving half of it.18This Court dismissed that argument:19We are sure that [the sentencing Judge] was well aware of the consequencesof a sentence of two years two months in terms of the Parole Act 2002. It iscommonplace for the sentencing issue to be whether the term of imprisonmentshould be less than two years. Generally, parole consequences are irrelevantto sentencing.[10] We are satisfied that Churchman J was aware of the parole consequences of hisdecision. He was not obliged to explicitly consider a shorter sentence. It followswe will not permit a second appeal on the ground there is a matter of general or publicimportance to resolve.[11] Mr Newton submits further there has been a miscarriage of justice arising fromthe District Court Judge's sentencing methodology. Judge Moss adopted the chargeof threatening to cause grievous bodily harm as the lead charge20 and the submissionis this artificially inflated the starting point. It is submitted the Judge should haveadopted the charge of assault with intent to injure as the lead charge and uplifted15 R v Stockdale [1981] 2 NZLR 189 (CA) at 190–191; R v Mwai [1995] 3 NZLR 149 (CA) at 157;Staynor v R CA31/96, 7 August 1996 at 5; Lord v R [2012] NZCA 276 at [24]; and Barnes v R[2018] NZCA 42, [2018] 3 NZLR 49 at [65].16 R v Mwai, above n 15, at 157.17 Barnes v R, above n 15, at [75]. At [77] the Court said taking parole into account would beappropriate for a sentence emphasising rehabilitation where rehabilitation might be betterachieved by earlier eligibility for parole than in other cases. Other examples of paroleconsiderations informing the final sentence include R v Accused (CA265/88) [1989] 1 NZLR 643(CA), in which a sentence was reduced to two years to allow for the making of an order thatthe accused receive counselling on parole (which was not available on a longer sentence), and Rv Hape [1994] 1 NZLR 167 (CA), in which a sentence was reduced to two years to avoidthe prohibition of consideration for parole of persons sentenced to more than two years'imprisonment for manslaughter.18 Lord v R, above n 15.19 At [24].20 Police v Newton, above n 1, at [7].the sentence to take into account the threatening charge. Counsel submitsthis approach would have resulted in a lower combined starting point, which wouldhave followed through to a reduced end sentence. Churchman J accordingly erred inapproving Judge Moss's methodology.[12] This submission amounts to a contention that the end sentence is manifestlyexcessive. We do not accept it.[13] First, it does not matter which charge was the lead charge. They arose froma single incident and criminal culpability had to be decided by considering the wholeof the incident.[14] Mr Newton attacked the complainant in her home. He strangled her until shelost consciousness. That was the subject of the charge of assault with intent to injure.When the complainant regained consciousness and was finding it difficult to breathe,Mr Newton threatened to strangle her again. That gave rise to the charge ofthreatening to cause grievous bodily harm. It was a serious example of the charge.Aggravating factors as discussed by this Court in Faaleaga v R were present, includinga link to previous violence, a present ability to effect the threat and actual danger.21In these circumstances, given the seven years' imprisonment maximum available onthe threatening charge, it was not wrong to take it as the lead charge. In any event,both Judge Moss and Churchman J considered the incident as a whole. We do notconsider Judge Moss's combined starting point for the charges of three years'imprisonment to be outside the range available to her. It was less than half ofthe maximum available for the threatening charge and the assault with intent to injurecharge reflected a serious attack.[15] Second, we do not consider the end sentence of two years three months'imprisonment to be excessive given the discounts awarded by Judge Moss for totality,remorse and pleas of guilty.22 Mr Newton had 13 previous convictions for drivingwhile disqualified (or similar). One of the three charges on which he was sentenced21 Faaleaga v R [2011] NZCA 495 at [11].22 Police v Newton, above n 1, at [12]–[15].related to driving a motorbike, a vehicle for which he has never held a licence.A significant uplift to the starting point for the other charges had to be imposed.[16] The drugs charges were given no weight at all.23[17] Nothing points to the final sentence being manifestly excessive. There isno identified risk of miscarriage of justice to justify a second appeal.Result[18] The application for leave to bring a second appeal is declined.Solicitors:Jacinda Younger, Palmerston North for ApplicantCrown Law Office, Wellington for Respondent23 At [16].