MITCHELL v R [2022] NZCA 159

MITCHELL v R [2022] NZCA 159 [4 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA191/2021[2022] NZCA 159BETWEEN KERRYN MITCHELLAppellantAND THE QUEENRespondentHearing: 30 March 2022Court: Gilbert, Woolford and Dunningham JJCounsel: C J Tennet for AppellantD R La Hood and K L Kensington for RespondentJudgment: 4 May 2022 at 2 pmJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] Ms Kerryn Mitchell has 80 previous convictions for breaching or attemptingto breach a protection order. These were accumulated between 2008 and 2019.On 25 March 2021, a jury found Ms Mitchell guilty of two further charges ofbreaching a protection order on 2 and 5 August 2019 and three further charges ofattempting to breach a protection order on 26, 27 and 28 August 2019. On 31 March2021, Judge I G Mill sentenced Ms Mitchell to two years and three months'imprisonment.1 She now appeals against both conviction and sentence.Factual background[2] On 24 April 2008, the Lower Hutt Family Court made a final protection orderagainst Ms Mitchell. The person initially protected by the order was Mr L who hadbeen in a relationship with Ms Mitchell. On 14 May 2010, the Court directed thatthe order also apply for the benefit of Mr L's partner, Ms L. The order directed thatMs Mitchell was not to make contact with either protected person, whether bytelephone, electronic message, correspondence or otherwise.[3] At the time of the offending, Ms Mitchell was in Arohata Prison.[4] At about 4.15 pm on Friday, 2 August 2019, Ms L was at their home addressin Lower Hutt. She checked the mailbox and found five envelopes inside (togetherCharge 1). Each envelope was addressed to her partner at their home address.Ms L immediately recognised the handwriting on the envelopes as Ms Mitchell's.Stamped on the front of each envelope was Arohata Prison, Private Bag 51-901, Tawa.Handwritten on the reverse side of each envelope was 'Sender: Kerryn Mitchell'.[5] At about 5.00 pm on Monday, 5 August 2019, Ms L again checked the mailboxand found two more envelopes (together Charge 2). These were also addressed to herpartner at their home address. Ms L again recognised the writing as Ms Mitchell's.Handwritten on the reverse side of both envelopes was 'Sender: Kerryn Mitchell'.[6] At some stage in August 2019, Ms Mitchell placed three envelopes intoArohata Prison's internal mail system. The first envelope was intercepted by prisonstaff on 26 August 2019 (Charge 3); the second was intercepted on 27 August 2019(Charge 4); and the third was intercepted on 28 August 2019 (Charge 5). All threeenvelopes were addressed to Mr L at their home address in Lower Hutt. On the reverseside of each envelope was written 'Sender: Kerryn Mitchell'.1 R v Mitchell [2021] NZDC 5941 [Sentencing judgment].[7] At trial, Ms L gave evidence. Mr L did not give evidence.Issues on appeal[8] In comprehensive written submissions, Mr Tennet, counsel for Ms Mitchell,set out a number of diverse complaints about the trial process. We have sought toidentify the issues as follows:(a) Was there a valid protection order in force?(b) Did Ms Mitchell know of its existence?(c) What were its terms?(d) Could there be a breach of the protection order if Mr L wasincapacitated?(e) Did Mr L consent to the contact with Ms Mitchell?(f) Did Mr L have actual knowledge of the envelopes?(g) Was the Judge right to set aside the witness summons for Mr L obtainedby Ms Mitchell?(h) Could Charges 3 – 5 amount in law to an attempt?(i) Is the sentence manifestly excessive?DiscussionValid protection order[9] On Ms Mitchell's instructions, counsel queries whether there was a validprotection order in force. A certified copy of the protection order was produced as anexhibit. There was no doubt that it is a valid order made by the Lower Hutt FamilyCourt. It specifies two protected persons and has not been discharged. One ofthe conditions of the order is that Ms Mitchell must not make contact with anyprotected person (whether by telephone, electronic message, correspondence, orotherwise) except in certain exceptional circumstances, which are not applicable here.Knowledge of protection order[10] Again, on Ms Mitchell's instructions, counsel refers to her concerns aboutservice of the protection order on her.[11] A corrections officer gave evidence of serving an envelope containingthe protection order on Ms Mitchell on 24 July 2015 at 10.45 am in Secure Cell 8 atArohata Prison. He produced a certificate of service which recorded the Family Courtproceeding number and date of the protection order. He was, however, unable toconfirm that the protection order produced in Court was the one he served onMs Mitchell because the protection order was contained in an envelope and he did notlook at the document inside the envelope. The proceeding number and date ofthe order recorded on the certificate of service was, however, the same as that onthe protection order produced in Court.[12] Although the evidence of the corrections officer may not have conclusivelyestablished Ms Mitchell was served with the order, proof of knowledge does notrequire proof of service of the order. The Crown also relied on the fact thatMs Mitchell had been convicted numerous times of breaching the protection order andthis included occasions where she had pleaded guilty to that charge. That the Crownintended to use the previous convictions in this way formed part of the rationale foradducing Ms Mitchell's previous convictions as propensity evidence. From allthe evidence, the jury could properly infer that Ms Mitchell was aware of the existenceof the protection order.Terms of order[13] Again, on Ms Mitchell's instructions, counsel queries the terms of the order.[14] In Walker v Police, the Court held that if the appellant knew of the protectionorder he was deemed to know of the standard statutory conditions of that protectionorder.2 In the present case, the non-contact condition is a standard statutory conditionof the protection order which was imposed pursuant to ss 19 and 20 of the DomesticViolence Act 1995.[15] The Domestic Violence Act has now been repealed and replaced by the FamilyViolence Act 2018. This, however, is of no moment. A protection order made underthe Domestic Violence Act which is in force on the date of changeover continues to bein effect under the Family Violence Act.3 Such an order is then subject to the standardconditions under ss 90 – 96 of the Family Violence Act in substitute for those underss 19 and 20 of the Domestic Violence Act.4 That includes the standard non-contactcondition.[16] It is therefore no defence for Ms Mitchell to say she is ignorant of theseprovisions or their effect. The law is clear. A protection order made in 2010 continuesto be in force under the Family Violence Act and is subject to the standard conditionsimposed by that Act. As Ms Mitchell had knowledge of the protection order, she isdeemed to have knowledge of its terms and conditions.Mr L's capacity[17] Prior to trial, Ms Mitchell had sought and obtained a witness summons forMr L, which was later set aside by Judge Mill. It was apparently through the processof serving the summons on Mr L that Ms Mitchell came to believe that Mr L's mentalstate was such that he could not have been aware of the envelopes and the fact thatthey had come from her. Counsel queries whether, in those circumstances, an offencecould have been committed.[18] Even though the offence was complete when Ms L picked up the envelopes outof their mailbox, as she was also a protected person and contact had thereby been madewith her, the District Court appointed independent counsel, Ms N Levy QC, to reviewmedical evidence about Mr L to be provided on a confidential basis by the Crown.2 Walker v Police HC Auckland CRI-2004-404-362, 17 August 2005 at [34].3 Family Violence Act 2018, sch 1, cl 3.4 Schedule 1, cl 4.Mr Levy subsequently filed a memorandum dated 3 March 2021 with the Court, inwhich she states:Nothing in the health information appears to be relevant to the charges againstthe defendant, or probative.I am not aware of the defendant pointing to anything which if known could berelevant in any particular way.There is no public interest in the disclosure of the health information, norwould it assist the defendant to defend the charge.[19] Based on Ms Levy's review of the medical evidence, we are satisfied there isnothing in this point. The Crown case did not rely on Mr L's mental capacity and,accordingly, the medical evidence was just not relevant.Consent to contact[20] Section 91(1) of the Family Violence Act provides that a protected person maysuspend the standard no contact condition by giving consent to contact.However, s 94(1) further provides that no consent to contact under s 91 is valid unlessin writing or in a digital communication (for example, in a text message, email, letteror standard form).[21] Counsel raises the suggestion of consent or agreement to contact by Mr L.He records Ms Mitchell's question — "What did the protected person agree to or not?"because Mr L was not called as a witness by the Crown and she unsuccessfully soughtto have him summonsed.[22] There was, however, no evidential foundation for any suggestion of consent tocontact at trial. Ms Mitchell did not give or call evidence, but this meant there was nosuggestion in the evidence that Mr L had consented to contact, specifically the sendingof the envelopes by Ms Mitchell to him.[23] Any such consent must be in writing or in a digital communication and thereis nothing to suggest that any such writing or communication had been given by Mr Lto Ms Mitchell. Such a possibility simply cannot be entertained in the absence of anyevidence to support it given the extensive history of breaches of the protection orderby Ms Mitchell.Knowledge of envelopes by Mr L[24] Counsel submits that the Judge misdirected the jury by directing them thatMr L was aware that the envelopes had been received. The Crown had not, however,called him to give evidence and this had led to a miscarriage of justice because anyassertion by Ms L that her partner knew of them was hearsay and unreliable.[25] A formal statement had not been taken by the Police from Mr L. It was Ms L,not Mr L, who found the envelopes in their mailbox. The Crown was of the view thatthe offence was committed by the act of Ms Mitchell sending the envelopes tothe protected persons' address — being the home of both Mr and Ms L. Contact couldhave been made with either Mr or Ms L, or both, through this mechanism.The Crown's view was that contact was immediately made with Ms L in breach ofthe protection order by Ms L picking up the envelopes out of their mailbox.[26] Ms L gave evidence at trial of finding the envelopes and passing them on tothe Police. But before doing so she says she had shown them to her partner, who wasalso present when a police officer called by and picked them up.[27] The Crown's view was that Mr L's evidence was not required. Only Ms Lcould give evidence about finding the envelopes and giving them to the Police.Any evidence given by Mr L about knowledge of the envelopes would onlysupplement that of Ms L, who said she told him about them. The offence had, inessence, already been committed by Ms L finding the envelopes and Mr L's knowledgeof them was immaterial. The offence was already complete. We agree. In any event,although Ms L was cross-examined about the issue, she was adamant that she hadshowed the envelopes to her partner. In the absence of any evidence by or on behalfof Ms Mitchell, the Judge was not in error in telling the jury that Mr L had receivedthe envelopes when they were addressed to him at their home address. They hadarrived by post in their mailbox and had been found by his partner who was adamantshe had shown them to him. She had no reason not to do so.Witness summons set aside[28] Prior to trial, Ms Mitchell had sought and obtained a witness summons forMr L. The Crown applied to have his summons set aside on the basis that: (a) he couldnot give any relevant evidence, and (b) the summons was being used oppressively foran improper purpose. At the beginning of the trial Judge Mill set the summons asideon the basis he could not give any relevant evidence.5 He did not need to considerwhether the summons was being used oppressively. Counsel for Ms Mitchell submitsJudge Mill was wrong to set aside the witness summons for Mr L.[29] It seems that Ms Mitchell had summonsed Mr L for a variety of reasons.First, Ms Mitchell wished to establish that Mr L was incapacitated to such an extentthat he was unable to comprehend or understand any contact which may have beenmade by her. Second, to establish whether Mr L may in fact have consented to anycontact made by her. Third, whether in the present case, his partner told him aboutfinding the envelopes in their letterbox so as to have actual knowledge of contact.These propositions are all analysed above and found to be wanting. The Crown didnot need to establish the mental capacity of Mr L or disprove consent in the absenceof any cogent evidence or prove actual knowledge of the envelopes on the part ofMr L. His evidence was unnecessary.[30] A witness summons may be set aside if any evidence able to be given bythe witness is irrelevant, oppressive, an abuse of process or covered by privilege.6In Orlov v New Zealand Law Society the Court held that unnecessary evidence is inthe same category as inadmissible evidence for the purpose of deciding whether to setaside a summons.7[31] The prosecution decides how to run its case, and which witnesses to call.The offence of breaching a protection order by contacting the protected person wascomplete when Ms L picked up the envelopes out of the mailbox. The Crown did not5 R v Mitchell [2021] NZDC 4982.6 Tuck v Registrar, District Court Auckland (1991) 3 PRNZ 459 (HC) at 462-463, citing Senior vHoldsworth, ex parte Independent Television News Ltd [1976] QB 23 (CA) at 43.7 Orlov v New Zealand Law Society (Auckland Branch) No 5 (2011) 21 PRNZ 52 (HC) at [27]; andat [24], citing R v Golightly [1974] 2 NZLR 297 (HC) at 302.need to establish knowledge on the part of Mr L, the original protected person.His evidence was unnecessary.[32] Ms Mitchell is therefore unable to establish that the Judge was wrong to setaside the witness summons. Although the Judge did not consider whetherthe summons was being used oppressively, we are of the view that the witnesssummons could have been set aside on this basis too, given the history of harassmentby Ms Mitchell.Charges 3 – 5: Attempt to breach protection order[33] Counsel submits that putting a letter out to be posted through the prison mailsystem cannot be an attempt to breach a protection order. However, in Mitchell v R,this Court found that Ms Mitchell's actions in putting mail addressed to Mr L inthe prison mail system was a proximate act that constituted an attempt to breach aprotection order.8 The Court rejected a submission that putting a letter in the prisonmail system cannot constitute an attempt because of the checks in place to preventmail from being sent out of the prison.[34] Counsel submits that it would not be re-litigating Mitchell to argue thatthe Department of Corrections might have learnt their lesson and improved theirsystem substantially since the earlier decision: "Now the system is such that in no waycould it be said that putting a letter out for posting would mean that it would beposted".[35] The situation has, however, not significantly changed since the earlier decision.Ms Mitchell's mail is still scrutinised to ensure that she is not making contact witheither Mr or Ms L in breach of the protection order. In the present case, however,seven envelopes addressed by Ms Mitchell to Mr L still made it out of the prison mailsystem and were delivered to Mr and Ms L's letterbox. It was obviously not factuallyimpossible for the envelopes to be posted. In any event, factual impossibility is nodefence to a charge of attempting to commit an offence. We are satisfied that putting8 Mitchell v R [2016] NZCA 299, [2016] NZFLR 487 at [17]–[22].a letter out to be posted through the prison mail system is sufficient to amount to anattempt.Sentence[36] The maximum penalty for breaching a protection order is three years'imprisonment.9 Judge Mill took a starting point of two years and six months'imprisonment, from which he deducted three months for the way in which Ms Mitchellhad conducted herself at trial. There were no other discounts available, so the endsentence was one of two years and three months' imprisonment.10[37] Counsel submits:(a) The starting point was manifestly excessive.(b) The Judge was wrong to accept and cite from the Victim ImpactStatement; and(c) The Judge was wrong to reject the principles set out by the High Courtin the earlier decision of Mitchell v New Zealand Police.11[38] In setting the starting point, Judge Mill held that this case must fall to beconsidered a case where a penalty near to the maximum penalty should be imposed.Judge Mill referenced the totality of the offending, the occurrence of the offendingwhile in prison awaiting sentence for similar offending, the numerous previousbreaches and attempted breaches, the lack of remorse, the lack of an indication ofstopping offending, and the considerable effect on the complainants.12[39] At the time of this offending, Ms Mitchell was in Arohata Prison awaitingsentence on two charges of breach of a protection order and one charge of burglary.She had been found guilty of the charges on 26 June 2019 and remanded in custody.139 Family Violence Act 2018, s 112(3).10 Sentencing judgment, above n 1, at [27]–[29].11 Mitchell v New Zealand Police [2019] NZHC 3264, [2019] NZFLR 532.12 Sentencing judgment, above n 1, at [26].13 New Zealand Police v Mitchell [2019] NZDC 16222.She was sentenced by Judge Tompkins on 21 August 2019 to two years andnine months' imprisonment.14[40] The previous offences had been committed on 27 June 2018. At that time,Mr and Ms L were on holiday. At about 11.00pm, Ms Mitchell went to their homeaddress, entered the backyard, and attempted to open two rear sliding doors. For thisactivity she was charged with both breach of a protection order and burglary. Onsentencing Judge Tompkins adopted a starting point of two years and nine months'imprisonment, which was also the end sentence.[41] On appeal to the High Court, Cooke J found that it was open to Judge Tompkinsto assess the starting point on the charge of burglary taking into account an uplift forprevious convictions against the same complainants, as well as an uplift for the breachof the protection order. Cooke J viewed the factors relevant to culpability as:15(a) The offending was the latest in a 13-year long campaign of intimidationand abuse of the [complainants].(b) The burglary took place late at night when the occupants were morelikely to be home.(c) The offences were committed while Ms Mitchell was on bail for similaroffending.[42] Cooke J then compared the 2018 offending with Ms Mitchell's previousoffending. It was not as serious as the offending in 2013, but more serious thanthe offending in 2015 and 2016. Cooke J held that a starting point in the range of 12 to18 months' imprisonment was appropriate and given the need to emphasise thatthe repeated offending would not be tolerated, an 18-month starting point wasappropriate.16 Cooke J allowed the sentence appeal and reduced Ms Mitchell'ssentence of imprisonment to 18 months.1714 New Zealand Police v Mitchell [2019] NZDC 19697.15 Mitchell v New Zealand Police, above n 11, at [33].16 At [34].17 At [37].[43] Ms Mitchell applied for leave for a second appeal against the judgment ofCooke J.18 This Court declined leave saying that given the persistent and flagrantpattern of breaching the protection order the sentence of 18 months' imprisonmentrepresenting half the maximum available for the breach of protection order chargesand far less than the maximum penalty of 10 years' imprisonment for burglary "mustbe regarded as lenient".19[44] Here we agree with Judge Mill that s 8(d) of the Sentencing Act has a primaryrole to play in assessing the starting point — for offending that is near the most seriousof cases of its type, a starting point close to the maximum must be adopted.In assessing whether a case is near the most serious of cases of its type, bothMs Mitchell's prior sentences as well as the circumstances of the present offending,are important. Ms Mitchell committed these offences while in custody awaitingsentence for similar offending against the same complainants. This is a highlyaggravating factor.[45] Apart from the 18-month sentence of imprisonment imposed (on appeal) inrespect of offending in 2018 and 2019, Ms Mitchell received sentences ofimprisonment of two months in December 2016, one year and seven months inJuly 2016, six months in December 2015, four months in March 2015, one year andsix months in September 2013, four months in June 2010, three months inFebruary 2010 and three months in November 2009. Ms Mitchell has also servedsentences of imprisonment for criminal harassment.[46] Of some relevance is that the maximum sentence for breaching a protectionorder was increased by Parliament on 25 September 2013 from two years'imprisonment to three years' imprisonment. The sentence of one year and six months'imprisonment imposed on Ms Mitchell for breach of a protection order in September2013 was therefore at a time when the maximum penalty was only two years'imprisonment. This was four years into "a 13-year long campaign of intimidation andabuse of the [complainants]" as it was described by Cooke J.18 Mitchell v R [2020] NZCA 96.19 At [28].[47] It is that history that leads us to conclude that Judge Mill was justified in givingprimacy to s 8(d) when adopting a starting point close to the maximum forthe offending. As noted by this Court in Anderson v R:20Breaches of protection orders vary enormously in culpability and in degreesof threat and psychological or physical harm to the protected person.Each case hinges on its own facts.(Citation omitted).[48] Counsel submits that in assessing the degrees of threat and psychological orphysical harm to Mr and Ms L, the Judge was wrong to accept the Victim ImpactStatement. Counsel submits that it contained emotive and inadmissible material inthat it refers to past events which, in effect, means that Ms L was asking the Court tosentence Ms Mitchell for past events.[49] The Crown acknowledges that Ms L's opinion as to penalty — a wish to seeher committed to psychiatric care — and opinions about the state of domestic violencein New Zealand were not relevant to the Court's sentencing exercise, but submits thatthe remainder of the Victim Impact Statement was relevant and in accord withthe purposes of a Victim Impact Statement.[50] We agree. Sentencing for a breach of a protection order can and should takeinto account prior instances of breaching the protection order. It is not a case ofre-sentencing the offender for past offences. Rather, it elevates the gravity ofthe present offending in that it shows that the offender has persistently failed to complywith a Court order. It also elevates the effect of the offending on the complainant asis apparent from Ms L's Victim Impact Statement. While the present offending mightappear to be a minor breach of the protection order, it is important for the Court to beinformed of how the wider picture feeds into the effect that such offending has onthe complainants. The offending left them "reeling" as one of the envelopes was datedthe day after she had been found guilty of burglary and breaching the protection order.From Ms L's perspective, the offending never stops. It will only stop whenMs Mitchell dies, as she herself said in a text to Mr L almost 10 years ago, on23 October 2012: "When is this going to end cunt, when Im dead!". The psychological20 Anderson v R [2016] NZCA 346 at [26].impact has been devastating. Ms L's Victim Impact Statement did not result inJudge Mill elevating the gravity of the offending inappropriately.[51] In dealing with Ms Mitchell in relation to her earlier offending in 2018 and2019, Cooke J stated:21I would encourage future proposals that involve not only Ms Mitchell'spersonal commitment, but also more detailed measures that clearly control herability to engage in future offending. At some point the cycle will need to bebroken. If such a proposal was developed, and then satisfactorilyimplemented without further incident, an alternative to further imprisonment,(such as home detention) might be able to be considered by a sentencingCourt.[52] In sentencing Ms Mitchell, Judge Mill did not reject such a proposal out ofhand. He characterised Cooke J's comment as really a plea that another way may bebetter than further and longer terms of imprisonment. He then stated:22I have to infer from that that there would need to be a clear expectation ofrehabilitation and commitment by Ms Mitchell as to whether she would offendfurther.[53] This is not a rejection of Cooke J's approach. But Ms Mitchell made no suchcommitment. She waived her right to a probation report, an alcohol and drugassessment, any community-based sentencing report and any personal family, whānau,community and cultural background report. The Department of Corrections suggesteda number of post-release conditions, which were addressed to the issue ofre-offending, but these were rejected by Ms Mitchell.[54] With such a criminal history and the devastating effect of the offending onMr and Ms L, Judge Mill was justified in imposing a sentence of imprisonment closeto the maximum. Hopefully, one day an alternative approach can be adopted, butMs Mitchell has to want to break the cycle of offending.Result[55] The appeal against conviction is dismissed.21 Mitchell v R [2020] NZHC 1181 at [24].22 Sentencing judgment, above n 1, at [22].[56] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Wellington for Respondent