YOUNG v NEW ZEALAND POLICE [2022] NZHC 1009

YOUNG v NEW ZEALAND POLICE [2022] NZHC 1009 [12 May 2022]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2022-463-000040[2022] NZHC 1009BETWEEN MARCUS CONRAD YOUNGAppellantAND NEW ZEALAND POLICERespondentHearing: 4 May 2022(Heard at Hamilton)Appearances: D M Johnston for the AppellantA A Maino for the RespondentJudgment: 12 May 2022JUDGMENT OF HINTON JThis judgment was delivered by me on Thursday 12 May 2022 at 9.30 amRegistrar/Deputy RegistrarDate:Counsel/Solicitors:D M Johnston, Barrister, TaupoGordon Pilditch, Crown Solicitor, Rotorua[1] Mr Young appeals his sentence of 20 months' imprisonment imposed on15 February 2022 by Judge Hollister-Jones for the offences of breaching a protectionorder,1 demands to steal2 and wilful damage.3[2] Mr Young was granted leave to apply for home detention should a place at aresidential rehabilitation facility become available. He applied to the Salvation Armybut was advised he was not eligible while under electronic monitoring.[3] Mr Young says that the sentence was manifestly excessive because:(a) the starting points for both the lead charge of demands to steal andbreach of protection order were too high;(b) the Judge failed to take the totality principle into consideration;(c) the Judge awarded a full discount for guilty plea but applied a discountof only 23 per cent; and(d) there should have been further discounts for personal mitigating factorssuch as remorse, ill-health, alcoholism and prospects for rehabilitation.Summary of factsFern Café incident[4] Mr Young went to the Fern Café in Taupō on 1 September 2021 operating underthe belief that the owner had victimised a whanau member of his. When he enteredthe café he picked up a steak knife from the cutlery shelf and said, "Wow, this is asharp knife".[5] The victim asked a witness, Mr Thompson, to get the knife back fromMr Young, which Mr Thompson did.1 Family Violence Act 2018, ss 9, 90(a) and 112(1)(a); maximum penalty 3 years' imprisonment.2 Crimes Act 1961, s 239(2); maximum penalty 7 years' imprisonment.3 Summary Offences Act 1981, s 11(1)(a); maximum penalty 3 months' imprisonment or a$2,000.00 fine.[6] Mr Young then said to the victim words to the effect: "We are not here to harmyou. If we want, we can take money from the tills. But we don't need money. Weneed the owner".[7] Mr Young told the victim he wanted money from the till which was in front ofhim. Mr Young's reasoning was that the owner of Fern Café would see via CCTV thathe had taken money from the till and would come to the store to get the money back.Mr Young said he would sit on the couch inside the café and once the owner arrivedhe would give the money back.[8] Mr Young picked up two more steak knives from the shelf, walked towards thevictim and said: "Since there are no cameras, open the fucking tills". Mr Young washolding a steak knife at chest height and pointing it towards the victim. The knife wasapproximately 20 to 30 cm away from the victim's neck.[9] The victim opened the till and Mr Young ushered him into the kitchen area ofthe café. He told the victim to call the owner on his cellphone.[10] Mr Young then told the owner: "Come up right here with $2,500, otherwisethey're going to get stabbed". The owner hung up on Mr Young, who slammed thevictim's cellphone on the ground causing the back of the phone to smash. Mr Youngcould be heard by the victim on his way out of the Fern Café.[11] In explanation, Mr Young stated he took money from the till and sat on thecouch at the Fern Café "waiting for Garrie".Family violence[12] About two hours later Mr Young was at the Tauhara shops in Taupō. He sawhis ex-partner at the shops with their children and asked her if he could look after thechildren for the day. She saw he was intoxicated and told him he could not look afterthe children. She left the shops and walked home with the children.[13] Mr Young followed his ex-partner, at a distance, back to their residence. Hewas not given permission to enter but he did so and a verbal argument ensued.Mr Young picked up a large L&P bottle and emptied the contents all over the kitchenfloor while yelling obscenities at his ex-partner. She told him on multiple occasionsto leave. He eventually did so and walked back to his own house.Victim impact statements[14] There are no formal victim impact statements. There is an unsigned statementfrom the café worker who says he feared for his life during the incident and was leftfeeling scared. He says if he tells his family of the incident they will tell him to leaveNew Zealand and he will be culturally obligated to do so.District Court sentence[15] Judge Hollister-Jones identified the lead charge as demands to steal for theFern Café offending.4 He noted aggravating factors were use of a steak knife tothreaten the victim and proximity of the knife to the victim's face. The Judge said itwas a highly threatening and intimidating event and adopted a starting point of16 months' imprisonment.[16] In regard to the family violence offending, Judge Hollister-Jones noted theoffending was aggravated by the significant level of psychological abuse of the victimand the fact it occurred in front of the three children. He said the incident would havebeen very unsettling for the children and could have had a significant psychologicalimpact. He noted the offending was aggravated by being the second breach of aprotection order and that it occurred while subject to sentence on the first breach. TheJudge adopted a cumulative eight month starting point for this charge.[17] The Judge treated the two sets of offending as distinct in nature and thereforetreated the starting points as cumulative. He also uplifted by two months'imprisonment for Mr Young's dishonesty offending history and awarded "a fulldiscount for guilty plea".5 This brought the final sentence to 20 months'imprisonment: 12 months on the demanding with menaces charge, eight months4 New Zealand Police v Young [2022] NZDC 2541.5 At [10].cumulative on the breach of a protection order and one month concurrent on the wilfuldamage charge.Starting point – Fern Café offending[18] The Judge did not refer to case law in setting his starting point of 16 months'imprisonment. Ms Johnston for Mr Young refers to Isaako v Police where there wasa starting point of one year's imprisonment.6 The offender had parked outside a dairyand entered wielding a knife approximately 15 cm long. He approached the counterand asked for money. The shop owner screamed and the offender ran away. WhileMs Johnston says this case is slightly more serious than Isaako, I consider it clearlymore serious. The threat subsisted for a longer period and the knife was close to thevictim's face. I note that in Isaako the starting point was not in issue before the HighCourt. Ellis J commented that, at the time of that judgment:7Any assessment of consistency in this respect is, in any event, problematic,due to the paucity of other cases in which a conviction under s 239(2) has beenthe lead offence for sentencing purposes.[19] Ms Maino for the Crown refers to a number of previous cases, including Reganv R.8 Mr Regan entered bank premises while intoxicated and demanded money fromthe till. The bank teller, who was 18 years old, was intimidated and shocked and took$905.00 cash, handing it to Mr Regan. Winkelmann J considered the offending wasless serious than Opetaia v R, where the aggravating factors of the offending were thatit involved an intended extortion by gang members, two associates were involved, andthreats were delivered.9 These features were not present in Regan and there wasCCTV and a counter separating Mr Regan and the teller. However, Mr Regan intendedto obtain and did in fact obtain a large amount of money. The Judge considered astarting point of 18 months' imprisonment was appropriate.[20] I agree with Ms Johnston that the Crown has somewhat over-analysed thepresent summary of facts to suggest further aggravating factors. The aggravatingfactors are limited to the two the Judge found. There is no evidence Mr Young had an6 Isaako v Police HC Auckland CRI-2010-404-000221, 3 August 2010.7 At [13].8 Regan v R [2012] NZCA 227.9 Opetaia v R [2011] NZCA 621. In this case the starting point was two years.associate. It would also be hard to premeditate conduct of the kind engaged in and theJudge made no such finding.[21] However, the use of a weapon to threaten the victim is significant. On the otherhand, there was no actual violence and no money was taken. Comparing the two casesI have noted with the present, the starting point here will fall somewhere closer toRegan, bearing in mind that Ellis J did not consider comparator cases in IsaakoClearly the offending is not as serious as Opetaia. Considering also the other casesprovided by Ms Maino, the starting point allowed for by the Judge is within theappropriate range.Starting point – family violence offending[22] Ms Johnston relies on Prince v New Zealand Police where on appeal a sentenceof seven months' imprisonment was reduced to four months' imprisonment for twobreaches of failing to leave or being on a property uninvited. 10 One of the chargeswas representative due to an admission the offender had been going to the propertyevery day for the last 14 weeks. In Prince, Cooke J said:11The offence potentially involves a wide range of conduct. For non-violentbreaches of a protection order in circumstances where the offender has ahistory of breaching orders the starting point generally begins from aroundfour months imprisonment, with the starting point increasing depending onthe circumstances such as the threat of violence..[23] Cooke J also referred to Irvine v Police where the High Court considered astarting point of 10 months was "at the upper limit of the appropriate range" and R vMitchell where the Court of Appeal considered an eight month starting point was"towards the top of the range".12 In Prince, a starting point of six months'imprisonment was set.[24] Here there was no threat of violence but it was a second breach. Ms Mainoaccepts that the family violence offending starting point is a bit on the high side butsays this case would be above Prince. In this case children were present, which they10 Prince v New Zealand Police [2019] NZHC 1742.11 At [14].12 At [14]. See Irvine v Police [2017] NZHC 3085; and Mitchell v R [2015] NZCA 442, (2015) 30FRNZ 534.were not in Prince. I take into account that there is a history here of police call-outsbut there was apparently no information before the Court, and there is none before me,as to what they involved. That information should ideally always be available forsentencing in family violence cases. The callouts obviously provide context.[25] In the circumstances of this case and noting that Mr Young was also swearingat the victim, I consider that an appropriate starting point should have been fivemonths' imprisonment.[26] That would bring the final starting point to 21 months' imprisonment.Totality/uplift[27] The Judge made no discount for totality and uplifted for dishonesty offendingas noted earlier.[28] I agree that it is not necessary to reduce the starting point for totality. Whilethe starting point was higher than it should have been, I have accounted for itsadjustment above.[29] However, correspondingly I would make no uplift to the starting point of 21months. It reflects the overall level of criminality. Also, while Mr Young was chargedwith dishonesty offending and pleaded guilty, that is not the real character of theoffending in this case. His intention was to engage in attention-seeking behaviour tomake communication with the café's owner. The significance of his previousdishonesty offending to the present offending is therefore limited and does not warrantan uplift.Guilty plea[30] The Judge allowed a full discount for guilty plea, which was appropriate.Other personal mitigating circumstances[31] I agree with Ms Johnston's submission that there should have been a furtherdiscount for remorse, Mr Young's history of seizures, the causative nature of hisalcoholism, and his prospects for rehabilitation. Mr Young wrote a remorse letterwhich was clearly composed by him. He also clearly suffers from alcoholism, whichwas substantially causative of his offending on the day. Ms Maino initially said sucha determination would properly require a s 27 report but accepted my proposition thatMr Young's problems with alcohol, and the linkage with the offending, are clear fromthe PAC reports and the summary of facts.[32] There are two insightful probation reports, both written by the same person,who also supervised Mr Young on the sentence of intensive supervision he was servingat the time of the current offending. It seems that the seizures suffered by Mr Younghave led to his no longer being able to hold onto his job in the construction industrywhich in turn has exacerbated the slide in his behaviour. The probation officer sayshe needs a residential treatment programme. While the Judge made provision for that,admission is difficult for someone like Mr Young to achieve, particularly from prison.[33] I also consider it relevant that Mr Young has an authorised care arrangement inplace for the children and sees them on a regular basis. It is not in their interests thathe be in prison any longer than necessary. For their sake and his he needs to get thebest help he can to straighten himself out before it is too late.[34] Weighing up these matters I consider there should have been a discount ofapproximately eight per cent. The total discount from the starting point wouldtherefore be 33 per cent.Result[35] The above steps would lead to a sentence of 14 months' imprisonment. Onthat basis the end sentence imposed by the Judge of 20 months' imprisonment wasmanifestly excessive.[36] The appeal is allowed.[37] The sentence of 20 months' imprisonment is quashed and replaced with asentence of 14 months' imprisonment, being 11 months' imprisonment on thedemanding with menaces charge and three months' cumulative on the breach ofprotection order. The concurrent sentence on the charge of intentional damage stands,as do the orders allowing cancellation of intensive supervision and leave to apply forhome detention.[38] Finally, I was greatly assisted in this judgment by the excellent and balancedsubmissions of both counsel.Hinton J