GARDNER v NEW ZEALAND POLICE [2020] NZHC 2169

GARDNER v NEW ZEALAND POLICE [2020] NZHC 2169 [25 August 2020]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2020-454-14[2020] NZHC 2169MATTHEW LANCE GARDNERvNEW ZEALAND POLICEHearing: 25 August 2020Appearances: G M Stone for the AppellantD R Davies and T Bagnall for the RespondentJudgment: 25 August 2020JUDGMENT OF COOKE J[1] Mr Gardner was sentenced to two years and three and a half months'imprisonment in respect of a range of violent offences:1(a) Two charges of assault on a person in a family relationship,2(b) Assault on a child,3(c) Three charges of wilful damage,4 and1 New Zealand Police v Gardner [2020] NZDC 11639.2 Crimes Act 1961, s 194A, maximum penalty two years' imprisonment.3 Section 194(a), maximum penalty two years' imprisonment.4 Summary Offences Act 1981, s 11(1)(a), maximum penalty three months' imprisonment or $2,000fine.(d) One charge of intimidation.5[2] Mr Gardner appeals his sentence on the grounds the starting point was too high,and that credit should have been given for remorse and time spent on electronicallymonitored bail.Factual background[3] The primary victim is the appellant's ex-partner. The two had been in arelationship for approximately one year and had lived together at an address inPalmerston North along with the victim's three children aged 4, 7 and 9. The victimwas pregnant at the time of the offending.[4] The first set of offending occurred in October 2019. At around 7.30 pm onSaturday 5 October 2019 Mr Gardner was an address in Palmerston North. Alsopresent was the victim and her three young children. Mr Gardner and the victim beganarguing over relationship issues and the use of a vehicle at the address. The victimtook the keys for the vehicle and hid them in an attempt to prevent Mr Gardner fromdriving after consuming alcohol.[5] Mr Gardner became upset that the victim had hidden the keys and followed heraround the house. He snatched her phone from her hands and smashed the phoneagainst a wall. The victim attempted to pick up the phone but Mr Gardner pushed heronto a bed. She repeatedly attempted to stand up but he continually pushed her backonto the bed. Mr Gardner pinned her arms down and yelled at her to return the keys.She told him to let her go and attempted to push him off her. As he did this he punchedher in the left thigh.[6] Mr Gardner then proceeded to repeatedly kick the victim's daughter's bedroomdoor. This caused the child the wake up and begin crying. The victim went into thebedroom to console her daughter but was followed by Mr Gardner, who continued toyell at her to give her back her keys. He told her to leave and shortly after she left onfoot with her children and notified police after arriving at a family member's address.5 Section 21(1)(a), maximum penalty three months' imprisonment or $2,000 fine.[7] As a result of the assault the victim suffered swelling, bruising and scratchesto her arms and legs and bruising to her toe.[8] The second set of offending occurred the following month. At around 8 pm onFriday 8 November 2019 Mr Gardner was at the victim's home address. Mr Gardnerwas intoxicated and began talking about harming himself. He spoke about trying tocut himself with a piece of broken oil wax burner. He punched the kitchen cupboarddoor, leaving a hole.[9] At around 1 pm the next day Mr Gardner was drinking at the victim's addresswhile she was out. She returned to the home address and confronted him about hisdrinking. Mr Gardner yelled at the victim about it being her fault that he was drunk.The victim then tried to retrieve her belongings from the bedroom so she could leavethe address. He then shut her bedroom door, preventing her from leaving. She askedhim to move but he refused. She attempted to climb out the window but Mr Gardnercame up behind her and closed it. She succeeded in pushing out the window, climbedout and ran to the back of the address. In response Mr Gardner kicked the bedroomwindow causing it to smash.[10] The victim returned to the house to get her belongings. He grabbed her by thearms and walked to her bedroom, despite her wrestling with him to stop. A neighbourthen came to the address and took the victim away. Mr Gardner continued to smashitems at the address, creating a hole in a kitchen cupboard and smashing the side doorwindow.[11] The victim received two small grazes from the incident.[12] The third, and most serious, set of offending occurred in January 2020 whileMr Gardner was on bail. At around 8 pm on Wednesday 29 January 2020 Mr Gardnerwent to the victim's address in Palmerston North, despite having active bail conditionsnot to be there. Her three children were present in the house at the time. By this timethe victim was 38 weeks' pregnant.[13] An argument started between Mr Gardner and the victim. Mr Gardner thenpushed the victim into a hot water closet. The argument escalated and he punched thevictim three times in the chest and head with a closed fist. He pushed her to the floorand held her there with an arm across her throat with enough pressure for her tobecome frightened that he would choke her. He then got up off the floor and kickedher in the stomach.[14] The argument continued, with both parties yelling at each other. Mr Gardneragain approached the victim and held her with a hand around his throat. The argumentwoke the children who came out of their rooms. Mr Gardner started to yell at the nineyear old victim, telling him to go back to his room. Mr Gardner followed him into thebedroom and placed a blanket over the child's head, punching him three times aroundthe head area with a closed fist.[15] As a result the victim received bruising and minor lacerations to her neck areaas well as bruising to her arms and chest. She was required to go to hospital to checkon the condition of her pregnancy. The nine year old victim received a minorlaceration to the inside of his lower lip.Decision under appeal[16] The Judge noted she had taken into account the pre-sentence report, summaryof facts and the victim impact statements.6 The Judge determined the lead charge wasthe offending in January against the victim and her son. She considered the assault onthe child was very serious and called for a cumulative sentence as it was separate fromthe offence on the primary victim.7[17] The Judge adopted a starting point of 14 months' imprisonment on the leadcharge of assault against the primary victim. She did so as there were a number ofaggravating factors: intimidation, punches to the head, and the fact that Mr Gardnerwas on bail at the time. The assault on the child also had a number of aggravatingfeatures given his age, and the abuse of trust. For that assault a starting point of 12months' imprisonment was taken, cumulative on the first assault charge. The Judgethen uplifted by two months to recognise there was a breach of bail twice in a shortperiod and offending against the same victim. Whilst the Judge said she was uplifting6 New Zealand Police v Gardner, above n 1, at [2].7 At [6].by two months for offending on bail, the actual uplift she gave was four months.Whilst that might have involved two months for each offence, that is not the uplift sheexplained. After 25 per cent discount for guilty plea, that amounted to an end sentenceof one year, 11 months' imprisonment.[18] Turning to the other charges, the Judge determined a total of six monthsimprisonment cumulative on the assault charges was appropriate, but after 25 per centdiscount that amounted to an effective three and a half month uplift. Added to the leadcharge that resulted in an end sentence of two years and three and a half months'imprisonment.[19] Finally, the Judge noted that home detention was unavailable but even if it hadbeen, Mr Gardner was not an appropriate candidate for home detention and the totalityof the offending required a full time custodial sentence.Approach to appeal[20] This is a first appeal against sentence under s 244 of the Criminal ProcedureAct 2011. Under s 250, the appeal court must allow the appeal if satisfied that:(a) For any reason, there is an error in the sentence imposed on conviction;and(b) A different sentence should be imposed.[21] A sentence appeal is an appeal against a discretion and only if there is an errorof principle should the appellate court re-exercise the discretion.8 The focus is on thefinal sentence and whether that was in the available range, rather than the exact processby which it was reached.9 An appeal court should not engage in mere "tinkering".10The Court of Appeal has accepted, however that there may be cases where "what has8 B v R [2011] NZCA 331 at [9]; and Lawrence v R [2011] NZCA 272 at [11].9 Ripia v R [2011] NZCA 101 at [15].10 Bull v Police [2019] NZHC 1720 at [21]; Ripia v R [2011] NZCA 101 at [15]; Knedler vCommissioner of Inland Revenue [2017] NZHC 2888; (2017) 28 NZTC 23-044 at [16];and Larkin v Ministry of Social Development [2015] NZHC 680 at [26].gone wrong as such as to require correction albeit the sentence imposed is withinrange".11Analysis[22] Mr Stone for the appellant submits the total effective starting point of 26months' imprisonment was out of step with similar authorities. Mr Stone submits thetotal starting point on the lead charges should have been in the range of 15 to 18months' imprisonment, with an uplift of no more than three months to recognise thebreach of bail.[23] Mr Stone further submits the lead charge of assault on a person should attracta starting point of twelve months' imprisonment. There were no lasting injuries andthe references to the harm caused to the victim's unborn child should carry little weightwhere there is no expert evidence of the harm referred to.[24] In my view the Judge's assessment of the starting point on this charge waswithin range. The offending was prolonged and involved a number of aggravatingfactors:(a) The offending involved violence in the home, a place where the victimand her family should have been safe. As the Court of Appeal recentlyemphasised, violence in the home in itself is an aggravating factor dueto the inherent vulnerability of the victim and breach of intangibletrust.12(b) The victim was also made particularly vulnerable due to the late stagesof her pregnancy. Her other young children were also present at thehome at the time of the offending — realistically there was no way thevictim could run or escape.(c) While the attack did not result in lasting injuries, the mental distresswould have been significant. In the course of the assault Mr Gardner11 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].12 Solicitor-General v Hutchison [2018] NZCA 162, [2018] 1 NZLR 420 at [27].held his arm across her throat with enough pressure to make her thinkhe would choke her — I agree with the District Court Judge that thistype of assault is designed to inflict fear and intimidation. There wasno serious injury but there was the potential for it given the assaultinvolved several punches to the chest and head. The kick to thestomach can be regarded as having particular potential to cause seriousharm given the victim was in the late stages of pregnancy.[25] I accept that there is a potential difficulty with taking into account actual harmto the unborn child in the absence of any medical or other expert evidence.13 TheJudge was concerned that the mother's adrenaline rush could have harmed the brainof the unborn child. That may well be a valid concern, but it does not arise specificallyfrom the kick to the stomach, and may well arise for all offending against pregnantmothers. But it is nevertheless relevant that the defendant assaulted the victim in thisway knowing that she was pregnant.[26] There is no tariff for assault offending. The starting point of 14 months'imprisonment appears to be at the upper end, but in line with the authorities referredto by counsel:(a) Waitai v R:14 The appellant was sentenced to one charge of maleassaults female. The victim was Mr Waitai's pregnant partner and theoffending took place at his home while he was on bail. An argumenthad ensued and Mr Waitai had told her to leave, but then prevented herfrom leaving. He threw an object at her back with force. He then placedher in a choke hold on three separate times in quick succession, eachtime squeezing her neck so she could not breathe for several seconds.After he placed her in a headlock and pushed her to the ground. TheDistrict Court Judge adopted a starting point of 18 months'imprisonment. On appeal to the High Court the Judge reduced thestarting point to 12 months' imprisonment to "achieve relativity" withthe existing case law.1513 New Zealand Police v Gardner, above n 1, at [4].14 Waitai v R [2014] NZHC 2116.15 At [27].(b) Wilson v New Zealand Police:16 The appellant in that case pleadedguilty to charges of male assaults female, assault with intent to injure,threatening to kill and breach of protection order. Mr Wilson punchedhis pregnant partner in the face. A week or so later Mr Wilson invitedhis partner over to where he was staying. An argument broke out andMr Wilson struck her face and grabbed her around the throat to the pointshe was unable to breathe. Later in custody Mr Wilson threatened tokill his partner and himself. The sentencing Judge had grouped thecharges together but taken the assault with intent as the lead charge. Aglobal starting point of 15 months' imprisonment was taken. Afterdiscounts the end sentence was 11 months. On appeal the High CourtJudge noted the appellant's record did not display a propensity forviolence and his more recent history was relatively clean. The Judgedetermined it was appropriate to not uplift the starting point forpropensity and take a starting point of 12 months' imprisonment.(c) R v Richardson:17 The 19 year old appellant was sentenced on chargesof male assaults female, assault with intent to injure and threatening tokill. The victim was the accused's pregnant partner and the offendingtook place in front of their 10 month old child. The appellant punchedthe victim in the stomach and flew into a rage, smashing items. Hethreatened to kill her and punched her multiple times in the side of herstomach and continued to attack her arms and legs. There were noserious injuries. The Judge adopted a starting point of 12 months'imprisonment.[27] By itself I consider the starting point of 14 months was reasonably open to theJudge given the comparable cases, even if stern.[28] The Judge then imposed a further 12 months' imprisonment for the assault ona child charge, cumulative on the 14 month starting point. Mr Stone submits theassault on a child charge should have justified an uplift of no more than six months'16 Wilson v New Zealand Police:17 R v Richardson [2012] NZHC 1465.imprisonment, citing Kawhena v New Zealand Police.18 Mr Bagnall for the Policesubmits that the 12 month uplift, while stern, must be viewed in context. It was not areaction to an argument with a child, but callous physical abuse of a vulnerable victimwith an element of detention given he covered him with the blanket before deliveringthe blows.[29] It was available to the Judge to treat this further assault upon the child asseparate offending and impose a cumulative sentence under s 84 of the Sentencing Act2002. It is an understandable reaction to the distinct feature of the offending,notwithstanding that it took place in the same course of events. But when doing so itwould also be appropriate for the Judge to consider totality. That is not something theJudge did. The failure to mention it is not an error in itself, but the fact that there werea series of uplifts without considering totality means that a stern sentence has thecapacity to be manifestly excessive.19[30] It is also relevant that the Judge appears to have possibly made an arithmeticalerror in the calculation of the sentence. The 14 months for the assault, the 12 monthsfor the assault on a child, the six month uplift for the other offences, and the two monthuplift for offending on bail calculate to 34 months. The 25 per cent discount (8.5months) then comes down to 25.5 months rather than 27.5 months.20[31] If the approach adopted by the Judge was followed and the 12 month sentencewas imposed as a cumulative sentence, it seems to me a discount of six months fortotality would have been appropriate. I am satisfied that dealing with the offencescumulatively without taking into account totality, and then adding further uplifts forfurther offending and for offending while on bail, including what appears to be a twomonth error, has led to an ultimate end sentence that is above the available range.[32] The particular sentencing methodology adopted by the Judge is largelyimmaterial given the focus on the end sentence. In the present case adopting a startingpoint on the lead offence, and then applying uplifts for the other offending would havebeen an alternative approach even though one of those offences involved a different18 Kawhena v New Zealand Police [2014] NZHC 908.19 See Kite v R [2018] NZCA 485 at [20]–[21].20 If the Judge intended to impose two sets of two months for offending on bail the calculations stilldo not quite add up.victim. It was still offending that either involved the same course of events, or thesame victim. It is a simpler approach, and it is the approach I will adopt below whendetermining the appropriate sentence.[33] Before dealing with the consequences in terms of the sentence that should beimposed I deal first with two other discrete points that have been raised.Remorse[34] Mr Stone submits Mr Gardner was entitled to a further discount for remorse ofapproximately 10 per cent.[35] Where there is tangible evidence of genuine remorse a discount of around fiveto eight per cent may be appropriate.21 The pre-sentence report noted Mr Gardnerexpressed deep remorse for the offending and sought to enrol in rehabilitativeprogrammes. The District Court Judge considered a discount for remorse but did notaccept Mr Gardner's remorse was genuine. I consider she was entitled to draw thatconclusion and it was open to her to not give a discount for remorse.Credit for EM bail[36] The Crown accept that the District Court Judge failed to give credit for timeserved on EM bail and didn't appear to consider that. Time spent on EM bail must betaken into account as a mitigating factor but any discount is not an arithmetic exercise— it depends on the restrictiveness of the conditions.22 Counsel have now madeinquiries and say that approximately six weeks was spent on EM bail. I do not thinkthat any specific reduction is needed for this given the short period.Result[37] I consider the appeal ought to be allowed and the sentence of two years, threemonths' imprisonment substituted with a sentence of one year, nine months'imprisonment calculated as follows:21 See for example McArthur v R [2013] NZCA 600 at [13]–[14] and Rowles v R [2016] NZCA 208at [18]22 Sentencing Act 2002, s 9(2)(h) and 9(3A). See also Longman v New Zealand Police [2017] NZHC2928.(a) 14 month starting point imposed for the offence of assault on a personin a family relationship,(b) A separate uplift of six months for the second lead offence of assault ona child (which could have involved a separate cumulative sentence of12 months for this office, but only if accompanied by a discount of sixmonths for totality)(c) Uplift of six months for the other five charges of wilful damage,intimidation and the other assault charge,(d) An uplift of two months to reflect the fact that the offending wascommitted while on bail.(e) A discount of 25 per cent for the guilty pleas.[38] In terms of the formal sentences for the offences the outcome is:(a) On the charge of assault on a person in a family relationship (CRN20054000509), one year and nine months' imprisonment.(b) On the charge of assault on a child, nine months' imprisonment to beserved concurrently.(c) On the other charge of assault on a person in a family relationship (CRN19054004013), six months' imprisonment to be served concurrently.(d) On the charges of intimidation and wilful damage, the appellant isconvicted and discharged.Home detention?[39] Mr Stone submits the Court ought to consider the possibility of home detentionas the end sentence is under two years.[40] There was a potential for home detention given it was recommended in thePAC report on the basis it "would enable the seamless continuity of the rehabilitativeprogrammes Mr Gardner has started, and taking into account Mr Gardner's ability tocomply with a community based sentence". The Judge thought, however, that shewould not have imposed home detention even if it had been available because thetotality of the offending required a full time custodial sentence.[41] I am not prepared to interfere with the Judge's assessment on this point. Anycontinuity has also now been intercepted by the amount of time Mr Gardner hasalready spent in custody. It seems to me that the correct step is to now specify releaseconditions that will assist rehabilitation on his release from the short term sentence. Iaccordingly impose the special release conditions recommended in the PAC report.Result[42] The appeal is allowed and a sentence of one year nine months' imprisonmentis substituted as specified in [38] above. The following special release conditions willapply until the sentence expiry date:(a) To attend and complete an appropriate family violence programme tothe satisfaction of a Probation Officer. This specific details of theappropriate programme shall be determined by a Probation Officer.(b) To attend and complete an appropriate alcohol and drug programme tothe satisfaction of a Probation Officer. This specific details of theappropriate programme shall be determined by a Probation Officer.(c) To attend and complete such counselling/treatment/programmes asdirected by a Probation Officer. The specific details of the appropriateprogramme shall be determined by a Probation Officer.Cooke J