ABERAHAMA v NZ POLICE [2017] NZHC 1179

ABERAHAMA v NZ POLICE [2017] NZHC 1179 [31 May 2017]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCRI-2017-409-39[2017] NZHC 1179METUA ABERAHAMAvNEW ZEALAND POLICEHearing: 25 May 2017Teleconference on 31 May 2017Appearances: T R Nicholls for AppellantE J Henderson and B Hawes for RespondentJudgment: 31 May 2017JUDGMENT OF NICHOLAS DAVIDSON JIntroduction[1] The appellant, Mr Aberahama, was sentenced to 19 months imprisonment on eleven charges.1 In summary the sentence comprised:(a) eight months imprisonment for eight charges of theft (under $500);2(b) two months imprisonment cumulative for one charge of intimidation;3(c) two months concurrent for one charge of speaking threateningly;4 and1 Police v Aberahama [2017] NZDC 5269.2 Crimes Act 1961, s 219, maximum penalty three months imprisonment.3 Summary Offences Act 1981, s 21(1)(d), maximum penalty three months imprisonment.4 Summary Offences Act 1981, s 21(1)(a), maximum penalty three months imprisonment.(d) nine months cumulative on one charge of contravening a protection order.5[2] He was also disqualified from driving for four months. He appeals the sentence on the ground that it is manifestly excessive.Offending[3] The eight theft charges spanned three months when the appellant filled his vehicle with petrol and drove off without paying.[4] The intimidation and threat charges arise from text messages sent to a former partner with whom, as counsel advised, there is still some relationship. The first set, in respect of which the intimidation charge was brought, involved the appellant telling the victim that he was watching her from outside her home address. In onemessage he said "please say yes or I'll bring the whole house down".[5] The second set of messages was sent the following day, and gave rise to the charge of speaking threateningly. The texts included: "Don't worry, I'm going to do my best to fuck you right over. Watch yourself", and "I loved you and you treat me like this I don't think so what goes around comes back to get you."[6] The breach of protection order charge arose after the appellant had appeared in Court in relation to the above offending and was on bail. He went to his formerpartner's house while she was home and kicked the door. The partner did not openthe door and the appellant left. In her Victim Impact Statement the partner told the Court she was fearful for her safety and the safety of her extended family because ofthe appellant's actions and threats. She was afraid of going outside the house on thenight of breach because the appellant might be there hiding in wait for her.5 Domestic Violence Act 1995 s 49, maximum penalty three years imprisonment.District Court sentence[7] His Honour Judge Saunders referred to the persistent dishonesty offending. Although similar in kind, the offences occurred on separate dates which meant that cumulative sentences of one month for each was appropriate. This is not challenged on appeal.[8] The charges of threats and intimidation were different in kind from the thefts but similar in kind to each other, so the Judge applied two month sentences cumulative to the eight months for theft but concurrent to each other. This is not challenged on appeal.[9] The Judge then reflected the need to take the breach of protection order"seriously". Parliament increased the maximum sentence from two years to three years as of 24 September 2013 in order to protect victims of domestic violence.6 The appellant was on bail at the time of the offending.[10] A starting point of "at least nine months" was, in his Honour's view, needed to "bring home" the seriousness of the offending. An uplift of three months was then applied for a previous conviction of breaching a protection order in respect of a different victim, before a discount of 25 per cent for the guilty plea was discretely applied to that offending. The final sentence for this offending was therefore nine months which, when added to the 10 months imposed on the other convictions, resulted in an overall sentence of 19 months.Approach on appeal[11] The appellant appeals as of right.7 This Court can only allow the appeal if it is satisfied that there is an error in the sentence imposed and that an alternative sentence should be imposed.8 If the sentence under appeal can be properly justified having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge. The sentence must be either manifestly6 Domestic Violence Amendment Act 2013, s 11(1).7 Criminal Procedure Act 2011, s 244.8 Criminal Procedure Act, s 250.excessive or inappropriate if the sentencing Judge's discretion is to be interferedwith. It is not enough that the Judge made an error in his or her reasoning: the focus is on the sentence imposed rather than the process by which the sentence was reached.9SubmissionsAppellant[12] Mr Nicholls, for the appellant says that the Judge erred in adopting a nine month starting point for breach of the protection order. He submits that this breach was less serious than the previous breach and that is a proper consideration as a matter of sentencing principle. On the previous occasion the appellant punched his partner so there was violence involved, whereas here there was not. A six months starting point was adopted for the assault charge, then a six month uplift applied forthe protection order breach and the appellant's prior history.[13] Mr Nicholls says that the sentence under appeal is "disproportionate to what occurred" and "does not equate with the earlier sentence handed down to theappellant for what was in its totality far more serious offending". By adopting a nine months starting point he says the Judge is "suggesting that the offending was three times more serious than the offending in the earlier case." He submits the sentence should have been constructed as follows: a starting point of three to six months, plus an uplift of one to three months, followed by a 25 per cent discount. That would give an overall sentence range of three months to six months three weeks, for the breach of protection order charge.Respondent[14] Ms Henderson referred to the Court of Appeal's observation that breaches of protection orders vary widely in culpability and degrees of threat, and that each case9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].hinges on its own facts.10 Prior convictions for the same offence are integral to the assessment of gravity of the offending.11[15] Ms Henderson accepts that the previous breach was more serious than this, as it involved violence, but submits that that sentence did not deter the appellant in this behaviour, so a starting point higher than the six months in that instance was justified. She thus builds the previous offending for the same charge into the gravity of this offending.[16] Ms Henderson refers to two cases which are submitted to show that a starting point of nine months was within range. In Hunia v Police, the offender had gone to the address of his former partner and her daughter and demanded to be let into the property.12 A starting point of six months was adopted by Lang J, and an uplift of three months applied for a previous breach and because the offending occurred within 24 hours of being released on bail.[17] In Crean v Police the offender was invited to his former partner's house andrefused to leave when she asked him to.13 The same thing happened on another occasion, except this time the victim left the house and the offender followed her, leading her to lock herself in a public toilet until the police arrived. For the two breaches of protection order Brewer J adopted a 15 months starting point, uplifted by four months for previous breaches.[18] Ms Henderson submits that the seriousness of the appellant's offending falls somewhere between these two cases, and a starting point of nine months was appropriate.Discussion[19] A sentencing Judge is under no obligation to reflect the length of previous sentences imposed on an offender as a measure of the offending for sentence, except10 Anderson v R [2016] NZCA 346 at [26].11 Crean v Police [2015] NZHC 3203 at [16].12 Hunia v Police [2014] NZHC 3217.13 Crean v Police, above n 10.to consider the effectiveness or lack of such given repeat offending. As a previous sentence it is one of many, and there is the appellate authority referred to. The role of a sentencing Judge is to impose a suitable sentence taking into account statutory requirements, the features of the offending and the offender, and relevant case law. On appeal, the question is simply whether the sentence imposed by the Judge was manifestly excessive and outside the range available.[20] The first question is whether a nine months starting point was manifestly excessive. The starting point is set based on the gravity of the offending, and will reflect the 2014 statutory increase to the maximum sentence. The previous breach of a protection order must not be taken into consideration twice and the starting point must first be set on the present offending, standing alone. In the same way the threatening text messages should not be taken into account twice.[21] The offending is similar in nature to that in Hunia, and that occurred when the maximum penalty was two, rather than three years imprisonment. It is less serious than that in Crean, when there were two breaches and where the offender intimidated the victim by following her and causing her to lock herself in a public toilet.[22] There are few cases that closely analogise with this since the increase in the maximum penalty. In Reid v Police, the offender went to his former partner'saddress where he stayed for 24 hours.14 They argued and the offender grabbed hispartner's phone and threw it against the wall, breaking it. The partner then ran away. On another occasion he went to her address and stayed for three days. On appeal Lang J agreed that a starting point of four months was appropriate for the first incident, with an uplift of two months for the second. A further uplift of two months was applied for previous relevant convictions.[23] In Beck v Police the offender was charged with two protection order breaches.15 The first involved the offender sending 45 text messages to the victim, some of which were threatening. The second related to an incident where the14 Reid v Police [2015] NZHC 299.15 Beck v Police [2014] NZHC 931.offender sent text messages to the victim over a period of two hours including onesaying "I'll see you soon". The appellant then arrived at the house and unsuccessfully tried to enter using a set of keys. He then left and attempted to telephone the victim 10 times. The sentence, which was upheld on appeal, adjusted a starting point of 10 months for the first breach, to be served concurrently, but with a five month uplift for the second. An uplift of five months was then applied for relevant previous convictions, including a number of protection order breaches.[24] The offending in this case is similar to that in Hunia. The maximum penalty has since been raised. A starting point over the six months imposed in that case was held justified on appeal.[25] Whether the gravity is measured by the previous breach and the offending on bail or those elements apply to uplift, a sentence of 12 months imprisonment before discount for the plea of guilty was well within range. I would adopt a nine months starting point, before uplift for offending while on bail and a second breach of protection order. A starting point of nine months to reflect the gravity of the offending was open to the sentencing Judge.Guilty plea discount[26] Although not raised by counsel, it does not appear from the sentencing notes that the District Court Judge allowed any discount for guilty pleas in relation to the other two sets of offending. Mr Hawes for the Crown accepts a discount of 25 per cent should be applied. It appears to have been missed in the end calculation, as the sentence was split to address the serious breach of protection order for which a discount was allowed.[27] The appellant is entitled to 25 per cent discount to recognise his guilty pleas in relation to the ten months imprisonment imposed for the thefts, and threats and intimidation charges. This part of the sentence will be reduced by 25 per cent to a total of seven months two weeks imprisonment.Disposition[28] The appeal is dismissed insofar as it challenges the starting point adopted by the District Court Judge in relation to the breach of protection order. However, the appeal is allowed to reflect a guilty plea discount in relation to charges for which in total he was sentenced to 10 months imprisonment. The total sentence of 19 months imprisonment is replaced by one of 16 months two weeks..Nicholas Davidson JSolicitors:Raymond Donnelly, ChristchurchPublic Defence Service, Christchurch