BOYES v NEW ZEALAND POLICE [2021] NZHC 2818

BOYES v NEW ZEALAND POLICE [2021] NZHC 2818 [18 October 2021]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2021-412-000034[2021] NZHC 2818BETWEEN JORDAN REMUS BOYESAppellantAND NEW ZEALAND POLICERespondentHearing: 18 October 2021Appearances: S A Saunderson-Warner for the AppellantR D Smith for the RespondentJudgment: 18 October 2021ORAL JUDGMENT OF GENDALL JIntroduction[1] The appellant, Jordan Boyes, appeals against a sentence of two years and sevenmonths' imprisonment imposed by Judge Robinson in the District Court at Dunedin.He had pleaded guilty to charges of assault on a person in a family relationship, assaultwith intent to injure, strangulation and wilful damage. He appeals on the ground thesentence was manifestly excessiveBackground[2] Turning now to the background facts in this matter, the charges stem from fiveseparate incidents of domestic violence. On 21 September 2020 Mr Boyes was thedriver of a vehicle and the victim, his partner, was a passenger. An argument brokeout and Mr Boyes pulled the vehicle over to the kerb. He reached over, grabbed thevictim by the throat with one hand while punching her three or four times in the sideof the head with the other hand. The victim suffered bruising to her face and head,including having an imprint on the side of her head from the sunglasses that she hadbeen wearing.[3] On 7 October 2020 Mr Boyes and the victim were at a shearing event inWaikouaiti. Mr Boyes was not drinking as he was a participant in the competition.The victim however was heavily intoxicated. At about 11 pm they decided to leave,and the victim got into the back of the van. Mr Boyes got into the front seat of thevan, opened the rear sliding door and pulled the victim forcibly from the van,slamming her on the ground. He then kicked her heavily in the rib area about threetimes. She suffered bruising on her side that was visible for some time.[4] Two weeks later in the evening of 21 October 2020 Mr Boyes and the victimargued. Mr Boyes grabbed her by the hair and threw her around in a motion that isdescribed as rag-dolling. When she fell to the floor Mr Boyes kneed her three to fourtimes in the ribs. She suffered bruising to her ribs and a bald patch on her scalp whereher hair was pulled out.[5] Nearly two months later, on 16 December 2020, Mr Boyes grabbed the victimby the legs, wrapped his arms around them and applied maximum pressure. Thesummary of facts notes that he was attempting to break her legs. She walked with apronounced limp for several days afterwards.[6] Then on 24 December 2020 there was a Christmas function hosted atMr Boyes' address with friends and children. Mr Boyes kicked a box of beer andthrew the remaining unbroken bottles at the feet of the victim and friends showeringthem with glass and beer. The gathering came to an abrupt halt and the guests beganto depart. The victim asked a friend to take her daughter away for her safety.[7] The victim sought refuge in her bedroom, but Mr Boyes followed. The victimhit Mr Boyes, he flew into a range, he punched a television and then threw it at thevictim hitting her in the back. He punched and kicked the victim repeatedly about thehead and body. She fell to the floor, momentarily causing her to lose consciousnessand lose control of her bladder. Mr Boyes then headbutted the wall knocking himselfunconscious.[8] The victim attempted to hide in the bathroom. As she left the room howevershe accidentally knocked Mr Boyes in the head with her foot rousing him. He wentinto the bathroom and continued the assault. He stomped on her head, face and body,pulling her arms away so that she could not defend herself. While she was on the floorMr Boyes placed his hands around her neck, strangling her until she lostconsciousness.[9] The assault only stopped when Mr Boyes heard sirens. When he realised theywere not coming to his address he made her clean up the living area and bedroom andcook him dinner. After this she escaped the house, ran down the road and flaggeddown a passing car. She was driven by a member of the public to a friend who tookher to accident and emergency for treatment of her injuries.[10] The victim suffered extensive injuries as a result of this last assault includingdeep bruising to her vaginal and anus area, black and swollen eyes, extensive bruising,a shoe imprint bruise on her thigh, teeth out of alignment requiring dental treatment,and a burst blood vessel in her eye consistent with strangulation. A total of 50 bruiseswere catalogued.District Court decision[11] Turning now to the District Court decision, on 15 June 2021 Judge Robinsonprovided Mr Boyes with a sentence indication of no more than three years and fourmonths' imprisonment. At sentencing Judge Robinson said the starting point for theoffending at 52 months' imprisonment on a totality basis. He allowed a 20 per centdiscount for guilty pleas and a 10 per cent discount for the fact that Mr Boyes was afirst-time offender. In respect of the matters detailed in the psychological report beforehim the Judge applied a discount of 10 per cent. This resulted in a net discount of40 per cent and an end sentence of two years and seven months' imprisonment.Principles on appeal[12] Turning now to the principles on this appeal, appeals against sentence areallowed as of right by s 244 Criminal Procedure Act and must be determined inaccordance with s 250 of that act. An appeal against sentence may only be allowed bythis Court if it is satisfied that that there has been an error in the imposition of thesentence and that a different sentence should be imposed. As the Court of Appealmentioned in Tutakangahau, quoting the lower Court's decision, "a Court will notintervene where the sentence is within the range that can properly be justified byaccepted sentencing principles."1 It is only appropriate for this Court to intervene andsubstitute its own views, if the sentence being appealed is "manifestly excessive" andnot justified by the relevant sentencing principles, and I refer to the Court of Appealdecision in Ripia.2Submissions[13] Turning now to the appellant's submissions before me, Mr Boyes it seems doesnot challenge the starting point for the offending. The central tenant of his appeal isthat a greater discount than that allowed should have been given for thematters contained in the psychological report and for his mental issues. This greaterdiscount is suggested at 20 per cent, meaning a total overall discount for all factors of50 per cent should have been allowed rather than the total 40 per cent allowed by JudgeRobinson.[14] Before me Ms Saunderson-Warner referred to the decision in Agar v R wherethe Court of Appeal allowed a discount of 20 per cent to recognise theappellant's personal background, mental health issues and efforts towards drugrehabilitation.3 On this Ms Saunderson-Warner did acknowledge Mr Boyes has notmade direct efforts towards rehabilitation, however she maintained he has hadlimited rehabilitative resources available to him while he has been a remand prisoner.Ms Saunderson-Warner notes that Mr Boyes has expressed a willingness to addresshis alcohol consumption and the reasons for that issue, and has been referred to a1 Tutakangahau v R [2014] NZCA 279 at [36].2 Ripia v R [2011] NZCA 101 at [15].3 Agar v R [2021] NZCA 350 at [42].relevant programme. In Ms Saunderson-Warner's submission once an additionalcredit of 10 per cent is allowed the final sentence should be one of 26 months'imprisonment.[15] Turning now to the submissions advanced before me for the respondent,the Crown opposes this appeal. Mr Smith for the respondent submits the startingpoint appears to be a mid-range starting point for this type of offending and I agree.Mr Smith contends Mr Boyes' efforts towards rehabilitation do not approach thesignificant efforts towards drug rehabilitation made by the appellant in Agar.4 Ratherhere the Crown says what is expressed is little more than a willingness to undertakethese. The dearth of programmes available to remand prisoners clearly is not the faultof Mr Boyes, however. In Mr Smith's submission the Court nevertheless should becautious in allowing credit for mere expressions of interest in rehabilitation anda concern Judge Robinson himself found with some unease in his decision thatMr Boyes had attempted to minimise his offending here and to suggest the chargesagainst him were exaggerated.[16] The respondent's position in this case is that the appropriate reduction forMr Boyes' background and mental health issues is in the range of 10 to 15 per cent.He is already in receipt of a 40 per cent overall reduction in sentence and in Mr Smith'ssubmission to allow a total reduction of 50 per cent would risk undermining theintegrity of the proper sentence in this case.Analysis[17] Turning now to my analysis in this matter, appropriately Mr Boyes does notchallenge the starting point adopted. Having considered the totality of the offendingI find that starting point of 52 months' imprisonment was within range. I agree withthe District Court Judge that the charge of strangulation is the lead offence here. Thatoffending occurred in a domestic context, the victim lost consciousness, there weresignificant injuries as a result of the ongoing assault and the violence was prolonged,being at the later stage of the overall offending.4 Agar, above n 3.[18] Having considered comparable cases the starting point of three years and fourmonths' imprisonment, that is 40 months, was appropriate and within range. The upliftof 12 months' imprisonment for the remainder of the offending cannot be impugned.[19] Before the Court is a 20-page report of clinical psychologist Martin Sellbom.The report is comprehensive. It covers Mr Boyes' background, his family history andmental health issues. Mr Boyes' ethnic origin is Romani. He was born in Romaniaand he and his twin brother were adopted at around six months' old. Prior to hisadoption and relocation to New Zealand he spent several months in hospital beingtreated for malnutrition, a hernia, pneumonia and a general failure to thrive.[20] Mr Boyes reported that he struggled with identity while growing up, knowinghe looked different from his family members and other children at school. Hisadoptive family had strong Christian values. Mr Boyes said that at the age of sevenhe was sexually abused by a Sunday school teacher. He did not disclose this offendingto his family and only understood the implications of this abuse at around the age of12. As a child Mr Boyes was treated for attention deficit hyperactive disorder (ADHD)because he could not focus and was restless. He was prescribed Ritalin until about 15years old. Mr Boyes reports he has a back injury which appears to have caused himsignificant pain. In August 2020 he presented to his GP with low mood and suicidalthoughts. He reported not sleeping well due to pain.[21] Mr Sellbom records that Mr Boyes admitted to losing control in situations ofhigh stress and this appears to be exacerbated by his periodically low mental wellbeingand alcohol use. Mr Boyes is recorded as having started drinking alcohol when hewas aged 13. Leading up to the offending he reported smoking marijuana too, aboutonce per week. Around four years ago Mr Boyes reconnected with his biologicalmother and other relatives. His biological mother is reported to have been very illsince mid-2020 which he says caused him significant and continuous stress.[22] Mr Sellbom assessed Mr Boyes for post-traumatic stress disorder (PTSD),concluding the interview results were consistent with a positive diagnosis of PTSDstemming from his sexual abuse trauma. Mr Sellbom concluded:Mr Boyes' relationship dysfunctions, which appear to be at the core of hisoffending behaviours, are likely affected by his emotional regulationdifficulties and insecure attachment coupled with an impaired capacity forbehavioural control.[23] Mr Sellbom went on to state "Mr Boyes exhibits significant mental healthproblems with emotional, interpersonal and behavioural manifestations". However,he added he wanted "to make clear that Mr Boyes' mental health problems and alcoholuse disorder are not cause or mechanisms of offending behaviour. From apsychological point of view he is responsible for his conduct." He concluded that theproblems Mr Boyes presented with had a "contributory impact primarily as theyrendered Mr Boyes less able to control his behaviours".[24] Ms Saunderson-Warner, I have noted, challenges the discount awarded here forbackground and mental health issues. She submits it should have been 20 per cent. Insupport of that submission, as I note she relies on the recent Court of Appeal decisionin Agar.5 There the appellant suffered from severe depression and anxiety and he hadbeen diagnosed with PTSD and ADHD for which he took daily medication. He hadbeen sexually abused at age 14 years, his formative years were marred by instability,neglect and rejection.[25] The Court found in Agar there was a nexus between the appellant's mentalhealth and the offending that warranted a discount. The appellant had taken significantsteps towards his rehabilitation there and had been sober for two years since the timeof the offending. Overall a discount of 20 per cent was applied for these factors.[26] In my view to some extent that case can be distinguished here. This is largelyon the basis the appellant in Agar had taken significant steps towards hisrehabilitation.6 I accept Mr Boyes has shown a willingness to engage in rehabilitation,however there is a material difference between a willingness and having takensignificant steps towards rehabilitation.5 Agar, above n 3.6 Agar, above n 3.[27] A discount may be applied to reflect an offender's mental illness where it iscausative of or contributes to the offending "as it moderates culpability and rendersless appropriate or more subjectively punitive, a sentence of imprisonment".7[28] Having considered the matters raised in Mr Sellbom's report and his commentsthere, in my view Mr Boyes' background and mental health struggles have contributedto his offending to an extent. With this in mind I would have applied an increaseddiscount for these factors, but only to the extent of a total 15 per cent.[29] Perhaps a somewhat unusual feature in this case, turning to other mitigatingfactors, is the fact that Mr Boyes only has one prior conviction, being for a drivingoffence. I consider it was appropriate in all the circumstances here that the Judgeapplied the discounts he did of 10 per cent for Mr Boyes' good character.[30] The discount of 20 per cent for guilty pleas also in my view cannot beimpugned. Mr Boyes pleaded guilty some six months after the charges were laid.[31] In my assessment the overall discount for all mitigating features and the guiltyplea therefore is one of 45 per cent. This is five per cent or some two and a halfmonths' imprisonment less than that reached by the District Court Judge. It followsin my view that the end sentence here could not be seen as being manifestly excessiveand to amend it on appeal would amount to tinkering.Conclusion[32] For all the reasons I have outlined above this appeal is dismissed....................................................Gendall JSolicitors:RPB Law, DunedinBarrister:S A Saunderson-Warner, Dunedin7 Agar, above n 3 at [20].