JUDSON v POLICE [2018] NZHC 110

JUDSON v POLICE [2018] NZHC 110 [13 February 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2017-419-80[2018] NZHC 110BETWEEN MICHAEL JAMES JUDSONAppellantAND NEW ZEALAND POLICERespondentHearing: 8 February 2018Counsel: L Walkington for AppellantT Needham for RespondentJudgment: 13 February 2018JUDGMENT OF WHATA JThis judgment was delivered by me on 13 February 2018 at 2.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Crown Solicitors, Hamilton[1] Mr Judson was sentenced to 3 years six months' imprisonment on charges ofcruelty to an animal, wilful damage, male assaults female (x2), assault with intent toinjure, wilfully attempting to pervert the course of justice and threatening to kill. Henow appeals against this sentence.Background[2] I adopt the description of the offending made by Judge M L S F Burnett whichis not challenged:[2] The defendant, you Mr Judson, and the victim are in a relationshipand the first offence in time relates to 21 May 2017. You and the victim wereat home. You have young children. Your six-year-old was present. Youpunched the victim in the back of the head four or five times with enoughforce that your left hand broke. The victim suffered a large lump on the backof her head and a swollen ear so that is the damage you inflicted on her on thatoccasion.[3] The next charge is cruelty to an animal and male assaults female on 5June 2017. You again were at home with the victim and a puppy was alsopresent. You placed your hands around the puppy's throat to pick it up and youcarried it this way to the back door where you threw the puppy out. When thevictim confronted you about this, you then punched her numerous times onthe arm and you inflicted bruising to her arm as a result.[4] The next occasion is male assaults female and the wilful damagecharge. On 12 June, you punched the victim twice in the back as she was lyingin bed. When she tried to get up and get away, you kicked her in the leg andthis caused her to fall over. When she put some clothes into her car to leave,you went out to the car and hit it with a broom which left a dent in the car.[5] Between 8 and 14 July you spoke to the complainant, coaching her togive an alternative version as to what had occurred so that when she was togive evidence in Court she would not be telling the truth and the accuracyabout what you had done to her, but rather give an innocent version aboutthese charges. Also, you thought that she would sign a letter to a Justice of thePeace.[6] On 26 July finally you had been remanded in custody and you madea call to the victim which you were not authorised to do. You got anotherprisoner to call an approved number and then transferred the call to the victimand then you spoke to the victim, telling her that you would kill her and thedog if she let anyone touch her.[3] In fixing sentence for this offending, Judge Burnett adopted a 20 month startpoint for the male assaults female/intent to injure charges. She added 18 months forthe perverting the course of justice charge and a further combined 12-month uplift forthe cruelty to animal and wilful damage offending, for previous convictions fordomestic violence, and for offending while on release conditions for similar offending.This resulted in a cumulative start point of 50 months. The Judge discounted this startpoint by 20 per cent for guilty pleas. In the result an end sentence of 3 years six monthswas imposed.Jurisdiction[4] Section 250(2) of the Criminal Procedure Act 2011 states that I may allow anappeal if for any reason there was an error in sentence imposed on conviction and adifferent sentence should be imposed. A sentence that is manifestly excessive may beset aside pursuant to this jurisdiction. Whether it is manifestly excessive is to beexamined in terms of the sentence given, rather than by the process it is reached.1Grounds of Appeal[5] The grounds of appeal set out in Mr Sutcliffe's written argument weresuccinctly stated:(a) The Judge effectively double counted the significance of the fact thatMr Judson offended while subject to release conditions and, in the caseof the perverting charge, while on bail;(b) The Judge failed to acknowledge the totality principle; and(c) A 50-month sentence over reaches the culpability of the offending,having regard to R v Richardson2 and Sharma v R,3 which involvedmore serious offending. The sentences imposed in those cases were 12months (which became 6 months' home detention) and 30 monthsrespectively.1 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [31]-[33].2 R v Richardson [2012] NZHC 1465.3 Sharma v R [2017] NZHC 2925.[6] Ms Walkington, counsel acting on instructions, substantially expanded on thesegrounds, referring to argument and authorities4 raised in the District Court and furtherCourt of Appeal authority not previously cited in written submissions. In substance,Ms Walkington submits the start points were individually and cumulatively manifestlyexcessive by reference to these authorities.[7] Ms Needham responds:(a) The starting point in the range of 2 years three months and 2 years sixmonths could have been adopted, rendering moot the complaint aboutthe uplift of 18 months for the perverting the course of justice.(b) The Judge was wrong to assume Mr Judson was on bail, but it makesno material difference, because he was in custody at the time.(c) The approach taken by the Courts in Sharma and Coombs withcomparable, though not identical offending, vindicates the presentuplifts. In those cases, start points of 2 years six months were adoptedfor the perverting the course of justice offending.5(d) As to prior offending, given Mr Judson has 34 previous convictions andbreaches of protection orders, a substantial uplift for this factor alonewould have been appropriate.(e) The totality principle must have been considered and given the numberand nature of the offenses, a stern response was appropriate.4 Kohu v Police [2013] NZHC 944; R v Richardson, above n 2, Tenakore v Police [2012] NZHC405; R v McLean HC Gisborne CRI-2003-016-006769, 8 November 2004; R v GemmellCA257/96, 2 November 1996; R v Hillman CA14/92, 14 May 1992; R v Bishop HC GisborneCRI-2010-016-2882, 29 July 2011; R v Tamati [2012] NZHC 221; Stevens v Police [2012] NZHC871; R v Robinson [2007] NZCA 336.5 I note for completeness that on my reading a start point of 21 and half months was adopted by theDistrict Court Judge in Sharma, but it appears the Judge mixed it in with an uplift for otheroffending, resulting in a cumulative uplift of 30 months which was approved on appeal.Assessment[8] Given the wide-ranging challenge to the sentence made by Ms Walkington, Iwill re-examine the sentence as a whole.[9] This appeal concerns a combination of serious offending, including severalseparate acts of domestic violence, cruelty to animals, a threat to kill and an attemptto pervert the course of justice. The intolerance of the Courts to domestic violenceshould by now, be well known. The approach recently adopted by Court of Appeal inGoodman is illustrative. The Court stated:[12] In our view, a starting point of 28 months was within the availablerange. We agree with the Judge this was a serious assault involving, as it did,attacks to the head and neck, and, while the victim did not lose consciousness,there was a strong evidential foundation from which the Judge could draw theinference that this would have been a very frightening and alarming incidentfor her. As submitted by the Crown, generally sentences of between two tothree years' imprisonment for domestic violence offending are not uncommonand a single charge of male assaults female tends to carry a term ofimprisonment of between two and 12 months. An effective uplift of fourmonths for the male assaults female charge was not excessive.[10] If anything, the facts of the present domestic violent offending are materiallymore serious overall. While in that case, the offending involved grabbing thecomplainant by the throat, the totality of the offending was substantially less: a singlecontinuing incident of violence.[11] There are, as to be expected, other cases where the facts lend themselves toshorter starting points.6 But the measuring stick is whether the start point wasmanifestly excessive. In my view, the starting point for the totality of the domesticviolence offending adopted by the Judge was, in fact, generous to Mr Judson. A startpoint in the order of 24 months for the multiple acts of violence, including attacks tothe head and three separate incidents of offending, would not have been out of range.6 See Kohu v Police [2013] NZHC 944 at [16], R v Richardson, above n 2, at [10]-[11].[12] The intolerance of the Courts to perverting the course of justice is similarlywell known. Churchman J, with respect, aptly summarised the position in Sharma:7[26] It is commonly accepted that attempting to pervert the course of justicewarrants "moderately lengthy terms of imprisonment". The Court have heldthat lower-level offending of this kind warrants a sentence or starting point ofbetween 18 months and 24 months. At the upper end of the scale the Courtshave decided that three years is indicative of the severity of the offence.[13] As stated by the Court of Appeal in H v R:8There is a requirement to place the relative seriousness of a particularconviction on a continuum between the least serious (warranting no prisonsentence at all) and the most serious (attracting a sentence at or near themaximum of seven years' imprisonment).[14] But I do not apprehend the Court was there suggesting the range identified inSharma was wrong in principle. Indeed, the Court endorsed a starting point of at least18 months in H, a case involving gestures by a defendant at trial directed to a witnesswho then did not come up to brief. The offending was described by the District Courtas opportunistic and unsophisticated offending, destructive of the trial process, withno verbal or direct physical contact and a complainant that was not vulnerable at thetime. While the present offending was not destructive of the trial process, it involvedpremeditated, bald attempts to pervert the course of justice, directed to a complainantwho had been subjected to moderately serious domestic violence.9 An 18-monthstarting point for the present offending was therefore, in my view, within range.[15] As Ms Walkington emphasised, there have been lesser sentences handed downfor perverting the course of justice.10 Notably, none of these cases cited to the DistrictCourt Judge, and now relied upon by Ms Walkington, involved an attempt atperverting the course of justice by getting the complainant to change his or heraccount.11 In any event, and at the risk of repetition, the threshold issue is whether thestart point was manifestly excessive in this case. And, to be clear, in my view, an7 Sharma v R, above n 3 at [26]; see also R v Hillman, above n 4, at 4; R v Rakeke HC AucklandCRI-2009-404-179, 21 August 2009 at [25].8 H v R [2016] NZCA 101 at [19].9 Premeditation, as opposed to a spontaneous outburst, has long be recognised as an aggravatingfactor – see R v Bishop, above n 4, at [11]-[13], [18].10 R v Bishop, above n 4, at [19]-[20]; R v Tamati, above n 4, at [25]; R v Robinson , above n 4, at[37]; Stevens v New Zealand Police [2010] NZHC 871 at [12]-[13], [29].11 Above.invitation to a victim of domestic violence to pervert the course of justice by adefendant with multiple prior convictions for domestic violent abuse and breach ofprotection orders, is a serious matter, warranting a clear deterrent sentence. 18 monthswas justified.[16] That leaves the uplifts for the cruelty, wilful damage, the threat to killoffending, breach of release conditions and for Mr Judson's parlous prior domesticviolence history. The cruelty and wilful damage offending forms part of the domesticviolence offending. A further uplift for this offending is not necessary. However, thethreat to kill is a distinct act of threatened violence warranting a specific response fromthe Court. It was also a serious, aggravating feature of the assault offending as it formspart of an overall pattern of violence meted out by Mr Judson toward the complainant.A three-month sentence for this was warranted.12[17] Finally, Mr Judson's propensity to act violently toward women, together withhis disregard for Court orders (accepting there was no offending while on bail), neededdenunciation in clear terms. He has 34 prior convictions, including 4 male assaultsfemale convictions and 10 breaches of protection orders in the period 2014-2016. Hislast sentence for breach of protection order, one year and two months, failed to deterhim. A four to five month sentence (or about 10% of the cumulative start point) forthese matters would not have been unreasonable.13[18] It can be seen therefore that the 50-month starting point adopted by the Judgefor the combined offending, while harsh, was not manifestly excessive. I also seenothing in the totality point. The sum of the parts in this case does not exceed thetotality of the offending. A stern message was clearly needed, particularly givenMr Judson's very recent history of domestic violence offending.14[19] The appeal is dismissed.12 See Toko v R [2017] NZCA 460, at [26].13 Ripia v R, [2011] NZCA 101 at [10].14 See R v Hoy CA 63/02, 23 July 2002 at [7].