TUWAIRUA v NEW ZEALAND POLICE [2020] NZHC 3376

TUWAIRUA v NEW ZEALAND POLICE [2020] NZHC 3376 [17 December 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2020-412-000040[2020] NZHC 3376BETWEEN LIONEL JAMES APANUI TUWAIRUAAppellantAND NEW ZEALAND POLICERespondentHearing: 15 December 2020Appearances: D C McCaskill for AppellantC J Bernhardt for RespondentJudgment: 17 December 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 17 December 2020 at 10.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate 17 December 2020Introduction[1] Lionel Tuwairua pleaded guilty to one charge of breaching a protection order.He was sentenced by Judge Turner to nine months' imprisonment on3 November 2020.1 Mr Tuwairua appeals that sentence on the basis it was manifestlyexcessive.1 Police v Tuwairua [2020] NZDC 22867.Facts[2] Mr Tuwairua and the victim were previously in a relationship, and haveone child together. In February 2013 a final protection order was issued againstMr Tuwairua in favour of the victim.[3] On 1 October 2020, Mr Tuwairua contacted the victim on Facebook Messengerabout their child. The victim told him to stop messaging her. Mr Tuwairua continuedto message the victim frequently over the next two days in increasingly derogatoryterms, despite her repeatedly telling him to stop.District Court decision[4] Judge Turner considered the communications were unwarranted, abusive anddistressing to the victim and her family. He noted this was Mr Tuwairua's 13th breachof the protection order since it was issued in 2013. Mr Tuwairua was sentenced tointensive supervision for the most recent breach in September 2019, then a very shorttime later was sentenced to imprisonment for behaving threateningly towards hismother. He had numerous other convictions for violence between 2004 and 2020,including family harm violence against the same victim.[5] The Judge disagreed with the assessment in the pre-sentence report thatMr Tuwairua posed a moderate risk of re-offending and a moderate risk of harmingothers. He considered Mr Tuwairua acts out of a sense of entitlement, and becomesabusive when he does not get his way. He found it was necessary to impose a deterrentsentence.[6] Judge Turner adopted a starting point of six months for the breach of protectionorder. He uplifted that by six months for the previous breaches of the order, notingsuch was necessary for deterrence purposes. For Mr Tuwairua's guilty plea, the Judgeallowed a full 25 per cent discount. He then noted:22 At [12].You have expressed some remorse and insight into your behaviour. It isdifficult to know whether that it is [sic] genuine, difficult because over aperiod of seven years you have continued to breach the sentence. I take thatinto account.[7] The end sentence imposed was nine months' imprisonment. The Judge did notallow leave to apply for a substituted sentence because he considered such a sentencewould not meet the relevant purposes and principles of sentencing, and becauseMr Tuwairua had shown a propensity to persistently offend against the victim.Principles on appeal[8] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower Court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".4 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.5 The focus on appeal is the end sentence, rather than the process by whichthe sentence was reached.6SubmissionsAppellant's submissions[9] Mr McCaskill, for Mr Tuwairua, submits the starting point of six months'imprisonment was too high. He recognises the messages sent by Mr Tuwairua wererepetitive but submits their content was not threatening, and that an appropriatestarting point would be up to three months.3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].5 Ripia v R [2011] NZCA 101 at [15].6 Islam v R [2020] NZCA 140 at [32].[10] Mr McCaskill accepts that Mr Tuwairua has numerous previous convictions,including 12 for previous breaches of the protection order, but submits the uplift of100 per cent was clearly excessive. He suggests the uplift should be no more than50 per cent. He further argues that if the starting point included recognition of thevulnerability of the victim, then that vulnerability may have been double counted inthe uplift for the previous breaches.[11] Mr McCaskill submits the Judge should have allowed a further discount forremorse, insight and prospects of rehabilitation. He says that Mr Tuwairua has a newpartner and a genuine desire to change. The Judge stated that remorse and insight hadbeen taken into account, but did not specify how; Mr McCaskill submits there shouldbe an additional discount of 10 per cent for those matters.[12] Finally, Mr McCaskill notes the recommendation in the pre-sentence reportwas for a sentence of intensive supervision. He submits Mr Tuwairua is motivated toundergo such a sentence and has benefitted from his recent intensive supervisionsentence. Mr McCaskill contends intensive supervision would help Mr Tuwairua tocontinue to abstain from drug use, ameliorate the effects of his anti-social personalitydisorder and assist in his rehabilitation and reintegration.Respondent's submissions[13] Mr Bernhardt, for the Police, submits the starting point was generous. He refersto a number of cases in support of that submission, the most relevant of which is Cooryv Police.7 In that case the appellant sent 13 unwanted messages to the victim and onone occasion entered her home, verbally abusing her and refusing to leave. He hadsix convictions for breaching a protection order, as well as other convictions forviolence or property damage against the victim. He was assessed as presenting amedium to high risk of reoffending. On appeal, Chisholm J held the starting point of18 months was "probably at the top of the range that was available [but] not outsidethat range".8 His Honour also did not disturb the uplift of six months for previous7 Coory v Police HC Dunedin CRI-2010-412-37, 25 November 2010.8 At [19].convictions. Mr Bernhardt submits that in light of Coory, the starting point ofsix months could well have been higher.[14] Mr Bernhardt adds that the uplift of six months was also generous in light ofMr Tuwairua's history of breaching the protection order, as well as his multipleconvictions for assault and threatening behaviour, many of which occurred in a familycontext. Mr Bernhardt accepts that an uplift must be proportionate to the starting pointbut, given his submission that the starting point was inadequate, he argues the resultwas not manifestly excessive.[15] Mr Bernhardt does not accept that Mr Tuwairua should have received adiscount for remorse, saying there is no tangible evidence of remorse. Indeed,Mr Tuwairua's continued non-compliance is indicative of a lack of insight into hisoffending.[16] In response to the submission that intensive supervision should have beenimposed, Mr Bernhardt submits the Court can have no confidence Mr Tuwairua wouldcomply with a community-based sentence, pointing to his 22 convictions for breachingsentences or failing to answer bail, and the 51 offences he has committed whilst subjectto bail.[17] He also cites R v Nathan, in which the appellant sent a number of messagesand a letter to the victim in breach of his protection order.9 He had five convictionsfor breaching the same order. The Court of Appeal held the sentencing Judge shouldhave imposed a custodial sentence but decided on the facts of the case not to substitutethe sentence of community work and supervision. However, the Court noted thatrepeat breaches of protection orders ought normally to be met by short terms ofimprisonment.10 Mr Bernhardt also notes that case was decided before Parliamentraised the maximum penalty from two to three years' imprisonment, indicating thatbreaches of protection orders should be treated seriously.119 R v Nathan CA209/06, 29 November 2006.10 At [28].11 Iyer v Police [2017] NZHC 353 at [11].Analysis[18] I have read the screenshots of the messages sent between Mr Tuwairua and thevictim. Though Mr Tuwairua's initial motivation appeared to be a desire to speak tothe victim, it is clear from the victim's replies that she did not want that contact. Herfirst recorded text message says "stop fuking txtn me". Mr Tuwairua continued to textthe victim frequently over the next two days, as well as attempting to video call hermultiple times and leaving her about 30 recorded voice messages.[19] As the victim continued to tell him to leave her alone, Mr Tuwairua becameangry, threatening to kill himself and becoming increasingly abusive towards thevictim. Throughout the messages that can be read he calls her a "bitch", "cunt", "drugdealer mutt", "slut" and "horse".12 He does not appear to make any direct threats tothe victim but the tone and content of the messages are abusive and insulting, and thevictim made it very clear they were unwanted.[20] In addition to the cases cited by Mr Bernhardt, the following cases are relevantin assessing the appropriate starting point:(a) Mitchell v R: the appellant left four messages on the victim's voicemailwhich were abusive and threatening.13 The Court of Appeal held thestarting point of eight months was "towards the top of the range".14(b) Morris-Stewart v Police: the appellant sent numerous text messages tothe victim over one day and night.15 They included abusive content andthreats to come to the victim's house, "rearrange [her] fat face" and stabher. Wylie J considered the appropriate starting point was 12 months'imprisonment.[21] In light of those authorities I agree with Mr Bernhardt that a six month startingpoint was generous. Mr Tuwairua sent the victim a high volume of abusive messages12 I was not provided with a transcript of the voice messages.13 Mitchell v R [2015] NZCA 442, (2015) 30 FRNZ 534.14 At [25].15 Morris-Stewart v Police [2016] NZHC 1030.over a period of two days, despite her consistent responses that she did not want tocommunicate with him. He was well aware that his behaviour was unwanted andunlawful, demonstrated by his previous convictions for breaching the same protectionorder. The starting point adopted by the Judge could well be seen as lenient.[22] In that context, I am not satisfied the uplift for previous convictions has led toa manifestly excessive result. Mr Tuwairua's 12 previous breaches of the protectionorder, as well as a number of other family violence convictions, warranted a significantuplift to meet the principles of accountability, denunciation and deterrence.Ordinarily, an uplift of 100 per cent of the starting point would be difficult to squarewith the principle of proportionality.16 An uplift of 50 per cent would normally beample. However, given the low starting point, and the significant history of bothfamily violence and breaches of the protection order,17 I am satisfied the resultingsentence is still within range.[23] I do not accept the submission that the Judge may have double-countedvulnerability of the victim. There is no evidence in his sentencing notes that thatoccurred, and in any event, the uplifted starting point was appropriate.[24] The pre-sentence report makes the following comments about Mr Tuwairua'sremorse:Mr Tuwairua is accepting of his offending history and takes responsibility forhis actions. During his pre-sentence interview he expressed deep remorse forhow his behaviour impacted his victim. He accepts that having officialoversight in the Community would be beneficial for him. As he spoke aboutthe support from his now partner, it was apparent that his desire to change isgenuine.[25] Although the pre-sentence report suggests that Mr Tuwairua was remorseful,and was motivated to change, the Judge expressed doubt about the genuineness of hisremorse given his repeated breaches of the protection order over a period ofseven years.16 See Tiplady-Koroheke v R [2012] NZCA 477 at [24].17 In addition to the breaches of protection orders there have been 19 family violence incidents inthe preceding 10 years, some of which involved weapons.[26] I am similarly sceptical about the genuineness of Mr Tuwairua's remorse andwillingness to change. There were also other statements in the pre-sentence report thatsuggested he showed less insight, including reference to his "sense of entitlement" andhis failure to complete drug and alcohol counselling despite much of his offendingbeing linked to his drug use. Furthermore, he has had many opportunities to changein the past but has continued to offend against the same victim. It may be thatMr Tuwairua's new relationship has indeed prompted him to feel genuinely remorsefuland willing to better himself, but there is insufficient evidence of that before the Courtto convince me to adjust the District Court Judge's sentence.[27] I do not believe the end sentence of nine months' imprisonment is manifestlyexcessive when regard is had to the strong need for deterrence, denunciation,accountability and protection of the victim in this case.[28] For the same reason, I do not consider the Judge was wrong to decline asentence of intensive supervision. Mr Tuwairua's repeated breaches of the protectionorder show that a more deterrent sentence is required, particularly when Mr Tuwairuahas previously been sentenced to intensive supervision for breaching his protectionorder and that was insufficient to deter him from reoffending. In this regard I note theCourt of Appeal's statement that, for repeated breaches of protection orders, a shortterm of imprisonment will generally be appropriate, and I consider it is appropriate inthis case.18Conclusion[29] The sentence of nine months' imprisonment was not manifestly excessive, andthe appeal is dismissed.Solicitors:Crown Solicitor, DunedinCopy To:D C McCaskill, Barrister, Dunedin18 Nathan, above n 9, at [28].