NEWTON v NEW ZEALAND POLICE [2023] NZHC 3704

NEWTON v NEW ZEALAND POLICE [2023] NZHC 3704IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-220[2023] NZHC 3704BETWEEN MATTHEW ALLEN NEWTONAppellantAND NEW ZEALAND POLICERespondentHearing: 13 December 2023Appearances: R J T George for AppellantW J S Mohammed for RespondentJudgment: 14 December 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 14 December 2023 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] On 12 October 2023, Matthew Newton was sentenced in the District Court1 to21 months' imprisonment in relation to the following offending:(a) contravenes protection order (family violence);2(b) possess methamphetamine;3(c) possess methamphetamine utensils;4(d) possess cannabis;5(e) refused officer's request to give blood;6 and(f) two charges of driving while disqualified (third or subsequent).7[2] He appeals the sentence on the grounds that the starting point applied was toohigh and the uplift for his previous convictions should not have been imposed.Facts[3] Mr Newton was disqualified from driving for six months on 8 March 2023. Hewas discovered driving in breach of this disqualification by police on 27 April 2023.On the same day, Mr Newton arrived at the victim's address, in whose favour aprotection order had been made in respect of Mr Newton. Nothing further happenedthat day after the victim told Mr Newton to leave and never return.1 New Zealand Police v Newton [2023] NZDC 22782.2 Family Violence Act 2018, s 112; maximum penalty 3 years' imprisonment.3 Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty 6 months' imprisonment and/or afine not exceeding $1,000.4 Misuse of Drugs Act, s 13(1)(a) and (3); maximum penalty 1 year imprisonment and/or a fine notexceeding $500.5 Misuse of Drugs Act, s 7(1)(a) and (2); maximum penalty 3 months' imprisonment and/or a finenot exceeding $500.6 Land Transport Act 1998, s 60(1)(a) and (2); maximum penalty 3 months' imprisonment or a finenot exceeding $4,500. The Court must also order the person to be disqualified from holding orobtaining a driver licence for 6 months or more.7 Land Transport Act, s 32(1)(a) and (4); maximum penalty 2 years' imprisonment or a fine notexceeding $6,000. The Court must also order the person to be disqualified from holding orobtaining a driver licence for 1 year or more.[4] However, on 4 May, Mr Newton returned. He stood on the front porch, yellingincoherently. The victim's daughter, frightened by the yelling, told her mother he wasthere. The victim walked outside to tell Mr Newton to leave. He approached andyelled in her face. He raised his fist and held it by the victim's head as he continuedyelling. The victim cowered, believing Mr Newton was going to assault her. Thevictim's daughter began to scream, prompting Mr Newton to leave.[5] On 7 May, Mr Newton was again found driving while disqualified. Whenarrested, he was found to have two small bags containing 0.17 g of methamphetamineand two more bags containing 0.65 g of cannabis. When his vehicle was searched, amethamphetamine utensil was found. Mr Newton refused to provide a blood specimenwhen required.Principles on appeal[6] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011 and must be determined in accordance with s 250 of that Act. An appealagainst sentence may be allowed by this Court only if it is satisfied there has been anerror in the imposition of the sentence and a different sentence should be imposed.8As the Court of Appeal identified in Tutakangahau v R (quoting the lower court'sdecision), a Court "will not intervene where the sentence is within the range that canproperly be justified by accepted sentencing principles".9 It is appropriate for thisCourt to intervene and substitute its own views only if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.10District Court decision[7] The District Court Judge took the breach of the protection order as the leadcharge. He considered the offending to be serious given Mr Newton returned soonafter being told never to come back. While there, he subjected the victim topsychological abuse, while physically proximate, involving a threat of assault. Astarting point of 12 months was adopted having regard to the gravity of the offending8 Criminal Procedure Act 2011, ss 250(2) and 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].10 Ripia v R [2011] NZCA 101 at [15].and without reference to Mr Newton's previous conviction for breaching theprotection order.[8] An uplift of eight months was applied for Mr Newton's fifth and sixth drivingwhile disqualified convictions. The refusing to provide a blood specimen attracted atwo-month uplift with a further one-month uplift for the drug offending.[9] A global starting point of 23 months was reduced to 21 months to reflecttotality.[10] The Judge noted Mr Newton had been released from prison on 12 April 2023with conditions. The lead charge for that sentence was a breach of the protection orderin favour of the victim. A condition of his release was not to contact the victim of theprotection order offending. Another condition was not to possess or consumecontrolled drugs. A 10 per cent uplift was applied for offending while on releaseconditions and in breach of those conditions.[11] In respect of Mr Newton's previous convictions, the Judge noted his drivingwhile disqualified convictions had already been accounted for in the starting point butsaid Mr Newton possessed relevant convictions for breaching the protection order,refusing to provide blood, and drug-related offending. An eight per cent uplift wasapplied.[12] Mr Newton had pleaded not guilty, received a sentence indication, declinedthat, and confirmed his not guilty pleas before eventually pleading guilty. An18 per cent discount was afforded for his guilty plea.[13] Despite reaching a short-term sentence of imprisonment, the Judge did notconsider a community-based sentence was appropriate.SubmissionsAppellant's submissions[14] Mr George, for Mr Newton, says an eight-month starting point would be moreappropriate on the protection order breach. Acknowledging the highly fact-specificnature of such offending, he submits the offending lacks physical violence, anextensive history of similar offending against the same victim, and submits it is similarto the case of Irvine v Police,11 where this Court held a starting point of 10 monthswas stern in light of what he says was more serious offending.[15] Mr George also contends the two-month uplift for refusing to provide aspecimen was too high given the maximum sentence for that offence is three months'imprisonment. He suggests no uplift was necessary.[16] In respect of the uplift for previous convictions, Mr George submits these werealready taken into account in setting the starting point and that any further upliftamounts to double counting. He notes that a 10 per cent uplift was also applied fordeterrence in light of the offending having occurred while on sentence, and an effective18 per cent uplift for deterrence is excessive.[17] Taking all these adjustments into account, Mr George submits an end sentenceof 14 months' imprisonment is appropriate.Respondent's submissions[18] In respect of the lead charge, being the breach of the protection order,Mr Mohammed submits the Judge was right to treat this as serious given the followingaggravating features:(a) the threat of violence was to the head;(b) the threat of violence occurred in front of the victim's children whowere also protected people under the order;11 Irvine v Police [2017] NZHC 3085.(c) the offending occurred at the victim's home, where she and her childrenwere entitled to feel safe;(d) the appellant refused to leave and only did so when the victim'sdaughter started screaming;(e) the offending has had a significant psychological impact on the victimand her children;(f) the offending occurred only days after the appellant was told to leavethe victim's address and never return; and(g) the appellant had previously breached the protection order and beenconvicted for that.[19] Mr Mohammed said the cases cited by Mr George to support a lower startingpoint are generally not as serious as the present case, noting that in Russell v Police,the High Court upheld the starting point of 15 months' imprisonment on one charge ofbreaching a protection order by telephoning the victim five times, although she did notanswer.12 The offending in Robinson v Police was also less serious than in the presentcase as it concerned a refusal to leave in front of a friend, and the target of abuse inthat case was the victim's friend.13 In the present case, the threat of physical violenceto the head was to the victim herself in her home and in front of the victim's children.Similarly, the case in Irvine is less serious as it involved repeated telephone calls andbanging on the lounge window of the victim's house, but not a threat of physicalviolence in front of a child.[20] While Mr Mohammed accepts the case of Wallace-Joe v Police is more serious,the starting point of 12 months' imprisonment was not challenged on appeal and, whencompared with other cases, this starting point appears to be a generous outlier.1412 Russell v Police [2023] NZHC 631.13 Robinson v Police [2019] NZHC 1412.14 Wallace-Joe v Police [2016] NZHC 3060.[21] In respect of the total uplift of 11 months for the other offending,Mr Mohammed submits this was available, particularly when one takes account of thetwo months' reduction for totality. The further offending encompassed otherimprisonable offending including for recidivist driving while disqualified and drugcharges.[22] Mr Mohammed points to Mr Newton's offending having taken place whilesubject to conditions and his extensive criminal history. This includes previous drivingoffending, a recent conviction for breaching the same protection order, and seriousdrug convictions. Mr Mohammed says the history reflects an ongoing refusal orfailure by Mr Newton to rehabilitate and be deterred by sentences.[23] Against this is what Mr Mohammed describes as a generous guilty pleadiscount given the many steps that took place before guilty pleas were entered. Theseinclude three adjournments in May and June 2023 while he considered whether toaccept a sentence indication which he ultimately declined and then seeking a furthersentence indication in August which the Court declined before he entered guilty pleas.AnalysisStarting point[24] I concur with the District Court Judge both in taking the breach of theprotection order as the lead offence and in his identification of the aggravating featuresof the offending. That said, I note that the Judge appears to have reached the startingpoint without reference to Mr Newton's conviction for a breach of the same protectionorder. In Carlyon v Police, prior convictions for breaches of protection orders weresaid to be integral to the assessment of the gravity of the index offending. This isbecause a history of previous breaches is directly relevant to the assessment of thegravity of the most recent offending and the culpability of the offender.15[25] Sentences for breaching protection orders vary greatly, and case-by-casecomparisons are difficult because the offending is so variable and always highly15 Carlyon v Police [2017] NZHC 2526 at [20].contextual.16 The maximum sentence for breach of a protection order is three yearsso, leaving aside for the moment comparable cases, it is difficult to see that, for amoderately serious breach of a protection order such as here, a starting point of12 months is out of range. In any event, I accept Mr Mohammed's analysis of thecases cited by Mr George generally support the starting point adopted by the Judge.In particular, in this case, the threat of violence was more overt than in those cases, itwas preceeded by Mr Newton having technically breached the protection order a fewdays earlier and being told not to return to the address, and was aggravated bythreatening the victim in front of the victim's daughter.Uplift for other offending[26] An eight-month uplift on the two driving while disqualified charges cannot becriticised. Starting points in the vicinity of 10 months are usually applied for those ontheir fifth or sixth convictions.17 Given this uplift encompassed two such charges, itcould be described as lenient.[27] Neither party criticises the one-month uplift for minor drug offending.[28] As to the uplift of two months for the refusal to give a blood specimen, suchoffending is rarely dealt with in detail, and the discrete nature of the charge makes itdifficult to identify what might qualify the lower and higher ends of the range beyondprevious convictions. In Muhinda v R,18 the appellant was sentenced to 18 months'imprisonment on charges of careless driving, driving while disqualified, and refusinga blood specimen. The refusing the blood specimen charge received a two-monthconcurrent sentence. Here, the two month sentence was imposed cumulatively, and Iacknowledge it was high given the maximum penalty is three months' imprisonment.A sentence of one month's imprisonment would be a more proportionate uplift.However, as this would only affect the end sentence by one month, it does notnecessarily mean the end sentence was manifestly excessive.16 Jackson v Police [2019] NZHC 281 at [41]; and Pahulu v Police [2020] NZHC 153 at [29].17 Borell v Police [2014] NZHC 2422 at [42].18 Muhinda v New Zealand Police [2015] NZHC 2024.Adjustments for personal factors[29] In adjusting a sentence upwards for prior convictions, it must be borne in mindthat a sentence should be based primarily on the facts of the offence for which theoffender is being sentenced, and it must not be increased merely because of previousconvictions because doing so would be to effectively increase the sentence imposedon that previous occasion or occasions.19 In considering whether the previousconvictions bear upon character and culpability, an indication of reoffending, and theneed to protect society through a deterrent sentence, the courts will consider thenumber, seriousness, and nature of the convictions, and the time since the lastconviction.[30] Mr Newton's previous convictions have already been accounted for in respectof his driving while disqualified, although it does not appear that the Judge took intoaccount the previous breach of the protection order in setting the starting point for thatoffence, and I consider he should have. In my view, the 12 month sentence reflectedboth the gravity of the offending and the fact he had previously been convicted of thesame offence with the same victim.[31] If I exclude the previous convictions for contravening a protection order andrefusing to give blood when considering the uplift, the only recent relevant convictionsare for speaking threateningly in a family violence context and possessing cannabisand methamphetamine. While he has a significant criminal history prior to this, itlargely comprises dishonesty offending.[32] Given the limited number of the recent convictions for similar offending, Iconsider the uplift of eight per cent was too high. A modest uplift of two tofive per cent was all that was warranted when it is recognised that the starting pointsfor some of the offending did reflect, or should have reflected, the history of similaroffending.[33] However, I also accept Mr Mohammed's submission that the discount of18 per cent for Mr Newton's guilty plea was generous given the delays in entering the19 Wipa v R [2018] NZCA 219 at [25]–[28].plea and, if any aspect of the sentencing was stern, or too high, then this largelyameliorated it.Conclusion[34] While I accept that aspects of the sentencing were, when examined closely, alittle too high, those would have resulted in only modest adjustments to the sentence,and which could have been compensated for by a lesser guilty plea discount. In anyevent, looking at the range of offending, the fact it occurred while on releaseconditions, and the similarity to recent offending for which Mr Newton has beenconvicted, I am satisfied that the end sentence could not be said to be manifestlyexcessive.[35] Accordingly, the appeal is dismissed.Solicitors:Crown Solicitor, ChristchurchCopy to:R J T George, Barrister, Christchurch