ROBINSON v NEW ZEALAND POLICE [2019] NZHC 1412

ROBINSON v NEW ZEALAND POLICE [2019] NZHC 1412 [20 June 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI 2019-419-0034[2019] NZHC 1412BETWEEN KENNETH CHARLES ROBINSONAppellantAND NEW ZEALAND POLICERespondentHearing: 20 June 2019Appearances: R T Nye-Wood for the appellantASC Alcock for the respondentJudgment: 20 June 2019ORAL JUDGMENT OF JAGOSE JSolicitors:Public Defence Service, HamiltonAlmao Couch, Hamilton[1] Kenneth Robinson appeals his sentence of nine months' imprisonmentimposed by Judge M L S F Burnett in the District Court at Hamilton on 18 April 2019.1Mr Robinson had pleaded guilty to one charge of breaching a protection order.2Approach to appeals against sentence[2] I must allow the appeal only if I am satisfied both there is an error in thesentence, and a different sentence should be imposed.3 In any other case, I mustdismiss the appeal.4 The approach previously taken by courts on sentencing appealscontinues to apply;5 the measure of error is the sentence be "manifestly excessive" –the principle is "well-engrained" in this Court's approach to sentence appeals.6 I willnot intervene where the sentence is within a range properly justified by acceptedsentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than by the process by which it is reached.7Offending[3] A protection order was issued against Mr Robinson by the Tauranga FamilyCourt on 4 October 2006. It became final on 4 January 2007. He has been in an on-and-off relationship with the applicant for the order –the victim in the appeal – for 17years.[4] On 13 February 2019, Mr Robinson was at the victim's address in Hamilton.He began verbally abusing a friend of the victim who arrived at the address. The victimtold Mr Robinson to leave but he refused. He used her phone to call the landlord beforethe victim grabbed her phone back and called the police. In continued breach of theprotection order, Mr Robinson refused to leave.81 Police v Robinson [2019] NZDC 7451.2 Domestic Violence Act 1995, ss 19(2)(c), 49(1)(b) and 49(3). The maximum penalty is three years'imprisonment.3 Criminal Procedure Act 2011, s 250(2).4 Section 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].6 At [33] and [35].7 Ripia v R [2011] NZCA 101 at [15].8 Under s 19(2)(c) of the Domestic Violence Act 1995, it is a condition of every protection orderthat a respondent must not, without the protected person's express consent, remain on any land orbuilding occupied by the protected person.District Court decision[5] Judge Burnett ordered an end sentence of nine months' imprisonment, after:(a) adopting a starting point of six months' imprisonment;(b) applying a six-month uplift for Mr Robinson's previous breaches of theprotection order and continued pattern of offending; and(c) applying a full 25 per cent discount in recognition of Mr Robinson'sguilty plea.Mr Robinson's appeal against sentence[6] Mr Robinson says the end sentence was manifestly excessive because:(a) the Court proceeded with sentencing on an incorrect factual basis;(b) the uplift for previous convictions was disproportionately high; and(c) no credit was given for his participation in restorative justice.Discussion[7] I turn now to consider those contentions.—incorrect factual basis?[8] Mr Robinson's counsel, Russell Nye-Wood, relies on two alleged factual errorsin the District Court judgment:(a) the Judge referred to Mr Robinson verbally abusing the victim, whenthe summary of facts – to which Mr Robinson pleaded guilty, providingthe basis for the Judge's sentencing of him – only refers to him verballyabusing the victim's friend; and(b) the Judge implied that it was Mr Robinson's behaviour which forcedthe victim to leave her flat, due to him "not leaving her alone orallowing her to feel safe". The Judge's attribution of the victim's "lossof everything" to Mr Robinson's behaviour is said to be without factualfoundation.[9] There is no suggestion in the summary of facts Mr Robinson verbally abusedthe victim. But, even if the abuse exclusively was directed towards the visitor, it stillillustrates an assertion of the sort of coercive control over the victim and her home asunderpins domestic violence, justifying protection orders. And that assertion plainlyextended to the victim, as police had to be called to remove Mr Robinson from theaddress.[10] The restorative justice report discusses the victim's living situation. Her flatwas broken into while she was away, after which she felt unsafe at the address andchose to stay in a tent. She planned to move to Auckland. There is nothing in thesummary of facts to suggest the victim was away from her flat on account of MrRobinson's actions. While Mr Robinson may have caused the victim to feel unsafeand unsettled in her own home, the burglary and its subsequent consequences are toofar removed from his offending to have any material effect on his culpability.[11] Mr Nye-Wood says the factual errors are of such an extent they cannot bedivorced from "the effective starting point of 12 months' imprisonment" and that theerror should be corrected by exercising the sentencing discretion afresh. I disagree.The Judge did not significantly rely on either finding, focusing instead on MrRobinson's pattern of behaviour and comments contained in the pre-sentence report.[12] In any event, whether the sentence is manifestly excessive is a means ofexamining the significance of the error, to decide if a different sentence should beimposed.9 Alone, the factual errors are not pivotal.—uplift for previous convictions disproportionately high?[13] Mr Nye-Woods also says the six-month uplift for Mr Robinson's previousbreaches of the protection order was too high. He says an uplift of 100 per cent isunusual, and the principle an offender is not to be re-punished for previous offending9 Tutakangahau v R, above n 5, at [32].must be observed. Also, previous breaches of protection orders are usually consideredwhen setting the starting point for this type of offending.[14] Breach of protection orders is a category of offending in which priorconvictions may be relevant in assessing the starting point,10 because culpabilityrequires taking account of the relationship history.11 To ignore the background historyin setting the starting point "would be artificial and prevent a proper analysis of thegravity of the offending".12 That is the approach usually adopted in sentencing for thiscategory of offending.13[15] But the Judge set a standalone starting point, then uplifted to recognise MrRobinson's relevant previous convictions. There was not double counting. Ignoringthe history of Mr Robinson's relationship with the victim makes analysis of anappropriate starting point somewhat artificial. I prefer the approach adopted inMitchell v R. But whatever the methodology adopted, the focus remains on the endsentence.[16] Breaches of protection orders vary greatly in culpability and in degrees ofthreat and harm to the protected person.14 For that reason, there is no tariff case forbreaches of protection orders – each case hinges on its own facts.15 But any breach ofa protection order still is inherently serious.16 Protection orders are not made lightly;there must have been a prior incident of domestic violence.17 It is of note the maximumsentence for breaching a protection order increased by Parliament in 2013 from twoyears to three years' imprisonment.18[17] Mr Robinson was not physically violent toward either the victim or her friend.The degree of threat present was lower than in other cases. But his conduct wasconfrontational, even if primarily directed at the victim's friend. A high degree of10 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [16].11 Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498 at [12].12 At [12].13 See Palmer v Police [2015] NZHC 143 at [17]; Crean v Police [2015] NZHC 3203 at [16(b)]; andTetau v Police [2015] NZHC 1284 at [26]–[28].14 Anderson v R [2016] NZCA 346 at [26].15 At [26].16 Weidemann v R [2018] NZCA 381 at [43].17 Taumalolo v Police [2016] NZHC 1525 at [21].18 Domestic Violence Amendment Act 2013, s 11(1).physical violence is not required for a breach to be considered serious. Indeed, anysignificant violence will likely be reflected in a separate charge.19[18] Mr Robinson's relationship with the victim has continued, despite theprotection order. The standard conditions for protection orders accommodate such, byrequiring the protected person's "express consent".20 A protected person's permissioncan be a relevant factor to the offender's overall culpability.21 The victim's earlierpermission is not material; her withdrawal of consent does not reduce Mr Robinson'sbreach.22[19] Mr Robinson has eight previous convictions for breaching the protection ordersince 2006, most recently in late November 2018. They show a continuing andconsistent pattern of reoffending.23 Mr Robinson also has several convictions forbreaches of community work and breaching court release conditions. He additionallyhas convictions for male assaults female in 2015, and injuring with intent to injure in2008 – both domestic violence incidents.[20] Mr Nye-Wood says Mr Robinson's offending is similar to that in Irvine vPolice, attracting a ten-month starting point.24 He distinguishes it from the offendingin Bartlett v Police, attracting a 14-month starting point.25 But, while there were twobreaches in Irvine, they occurred close together, and the appellant had no previousconvictions for such breaches. Mr Irvine's starting point thus contained no uplift forprevious convictions. Comparatively, Mr Robinson's eight previous convictions areintegral to an assessment of the gravity of his offending. Repeated breaches ofprotection orders call for a proportionate response,26 more severely as the court's ordercontinues to be disregarded over time. That accounts for the distinction between MrRobinson's case and in Bartlett.19 Palmer v Police, above n 13, at [23].20 Domestic Violence Act 1995, s 19.21 Palmer v Police, above n 13, at [27].22 At [28].23 Tetau v Police, above n 13, at [27].24 Irvine v Police [2017] NZHC 3085.25 Bartlett v Police [2016] NZHC 850.26 R v Nathan CA209/06, 29 November 2006 at [25].[21] Mr Nye-Wood also refers to Narayan v Police, as suggesting a starting pointof eight to nine months' imprisonment would have been within range, taking intoaccount Mr Robinson's previous convictions.27 But Narayan was decided beforeParliament increased the maximum penalty for breaches of protection orders by 50 percent. Hence twelve months now may be the comparable sentence to be drawn fromNarayan, as is endorsed by other sentencings for current breach with convictions forprevious breach.28[22] The Judge's effective twelve-month starting point thus is orthodox, reflectinga balance between the conduct engaging the protection order on the one hand and MrRobinson's extended history of non-compliance (including shorter terms ofimprisonment, most recently in November 2018). Even if previous sentencing wasnon-custodial, there comes a time when penalties must have some bite.29 Notably, it isa sentence at the lowest third of the statutory range, which illustrates its place in thespectrum of offending. A fifteen-month starting point was entirely open to the Judge.—no credit given for participation in restorative justice?[23] Last, Mr Nye-Woods says the Judge erred in failing to give credit for MrRobinson's participation in restorative justice, as demonstrating his remorse andwarranting a five to ten per cent discount.[24] Participation in a restorative justice process must be taken into account whensentencing an offender.30 The Judge made no express reference to the positiveoutcomes reached in the restorative justice conference. Mr Robinson acknowledgedwhat he did was wrong, and showed some degree of insight and a willingness toaddress his anger and substance use issues. He said he wants to stay in contact withthe victim and she expressed a similar wish. Mr Robinson's participation should havebeen considered by the Judge.27 Narayan v Police [2012] NZHC 988.28 Turner v Police [2017] NZHC 1113 (14-15 months); Crean v Police, above n 13 (15 months); andHamilton v Police [2014] NZHC 2698 (11 months).29 R v Cartwright CA 175/02, 28 August 2002 at [24].30 Sentencing Act 2002, ss 8(j), 9(2)(f) and 10.[25] Still, restorative justice processes are based on the premise the offender acceptsresponsibility for his or her actions.31 The pre-sentence report, dated after therestorative justice report, says Mr Robinson was resistant to being referred to anyrehabilitative interventions – he wanted "to achieve these matters himself". MrRobinson also referred to the protection order as the victim's "trump card" and saidthe protection order is enforced by her for "no reason". The mixed comments in thepre-sentence report undermine the extent to which Mr Robinson can be taken to acceptresponsibility for his behaviour.[26] The marginal impact of any such discount – of only two to four weeks – isinsufficient to render the Judge's end sentence of nine months' imprisonmentmanifestly excessive. And it also is a benevolent sentence; an end sentence closer to ayear's imprisonment would have been entirely within range.Result[27] The appeal is dismissed.—Jagose J31 R v Harrison [2008] NZCA 514 at [23].