ANDERSON v R [2016] NZCA 346

ANDERSON v R [2016] NZCA 346 [20 July 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA174/2016[2016] NZCA 346BETWEEN MICHAEL LESLIE ANDERSONAppellantAND THE QUEENRespondentHearing: 11 July 2016Court: French, Fogarty and Collins JJCounsel: N M Dutch for AppellantK E Hogan and H D Benson-Pope for RespondentJudgment: 20 July 2016 at 11.00 amJUDGMENT OF THE COURTThe appeal against conviction and sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 8 March 2016 Mr Anderson was convicted after trial beforeJudge Harding and a jury in the Tauranga District Court of three charges ofbreaching a protection order.1 He was sentenced by Judge Harding to 18 months'imprisonment and ordered to pay $1,000 reparation.2 Mr Anderson appeals only thethird of his convictions and his sentence.1 Domestic Violence Act 1995, s 49(1)(a).2 R v Anderson [2016] NZDC 6650.[2] We are dismissing Mr Anderson's appeal against conviction because nomiscarriage of justice occurred when he was convicted.3 We are also dismissingMr Anderson's appeal against sentence because it was not manifestly excessive.4Background[3] Mr Anderson and Ms V commenced a relationship in 2011. Ms V describedtheir relationship as one that was "off and on". In August 2013 Ms V obtained aprotection order against Mr Anderson. Their relationship continued, however, untilaround May 2015.[4] In June and July 2015 three incidents occurred that resulted in Mr Andersonbeing convicted of three charges of breaching the protection order.[5] The first of these incidents occurred on 15 June when Ms V was parked in asupermarket car park. She was sitting in her car with her new boyfriend with the cardoor open. Mr Anderson drove into the car park in his SUV. He drove his vehicle towhere Ms V's car was parked. Mr Anderson's vehicle made contact with the opendoor of Ms V's car.[6] The second incident also occurred on 15 June when Mr Anderson broke intothe shed at Ms V's property and took a lawnmower.[7] The third charge arose from events that occurred from 20–23 July 2015. Thisis the matter to which Mr Anderson's appeal relates.[8] According to Ms V's evidence, on the evening of 20 July she began receivingunsolicited sexually explicit text messages from men asking to meet with her. Ms Vreceived approximately a dozen messages of this kind. She eventually asked one ofthe men texting her to telephone her. He did so. During the course of thatconversation, Ms V learnt the man had obtained her details from a Facebook page3 Criminal Procedure Act 2011, s 232(2)(c) and 232(4).4 Criminal Procedure Act, s 250(2); Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at[35].that was linked to a dating website and that the man believed he had been inFacebook communication with Ms V.[9] Ms V knew she had not created the Facebook page and explained to theunknown man that her former partner was responsible and that she had not beencommunicating via Facebook with the man she was speaking to.[10] The following day a friend of Ms V took a screenshot of the Facebook page.It included Ms V's contact details and an intimate profile photo that had been takenby Mr Anderson when he and Ms V were still in their relationship. A copy of thatscreenshot was produced as an exhibit.[11] On 27 July Ms V received a text from Mr Anderson saying he hopedeverything was well with her and her son. A copy of that text was kept by Ms V andproduced as an exhibit. Ms V told the jury she replied along the following lines:Do you really think that texting me something like that after putting me on aFacebook dating site and trying to send random men to my house is okay?[12] Ms V did not keep a copy of the text she sent Mr Anderson, but she gaveevidence about its content. Mr Anderson responded on 28 July saying "Yea I'msorry for that. It's been deleted. Just wanted to make piece [sic] with you. Sorry forthe harm caused". A copy of that text was produced in evidence.[13] Ms V went to the police on 28 July. Subsequently, Mr Anderson was chargedwith breaching the protection order on the occasions we have summarised.Mr Anderson denied offending in the way alleged. At trial propensity evidence wasadduced relating to Mr Anderson's four previous convictions for breaching theprotection order.[14] In sentencing Mr Anderson Judge Harding adopted a starting point of15 months' imprisonment for all three convictions, which he increased to 18 months'imprisonment to take account of Mr Anderson's previous convictions for breachingthe protection order.[15] Judge Harding decided a sentence of home detention was not appropriatebecause of concerns in the pre-sentence report about Mr Anderson's low prospect ofrehabilitation. An end sentence of 18 months' imprisonment was imposedconcurrently in relation to all three charges alongside an order to pay $1,000reparation.5Grounds on appeal[16] There are two limbs to Mr Anderson's appeal against conviction:(a) First, it is said Judge Harding erred when he allowed the Crown toadduce evidence of the conversation Ms V had with the unknownmale caller on the evening of 20 July, in particular the evidence thatMs V gave about the caller telling her of the details of the fakeFacebook page and its link to the dating website.(b) Second, it is said Judge Harding erred by allowing Ms V to giveevidence that she knew it was Mr Anderson who had created the fakeFacebook page when she first learnt of it.[17] Mr Anderson also appeals against the length of the prison sentence imposedand the decision not to grant him home detention.AnalysisAppeal against conviction[18] Mr Dutch, counsel for Mr Anderson, submits the evidence Ms V gave aboutwhat the unknown male caller told her on the evening of 20 July about the Facebookpage and dating website was adduced to prove the truth of the contents of the caller'sstatement and, as such, it was inadmissible hearsay evidence.65 The sentence included a concurrent sentence of one month's imprisonment for failing to complywith a supervision condition. The appellant had pleaded guilty to this charge separately.6 Evidence Act 2006, s 4(1).[19] There is merit in the Crown submission that the statements in question werenot adduced to prove the truth of their contents but to provide context for Ms V'ssubsequent actions.[20] We do not find it necessary, however, to determine if the evidence in questionwas hearsay evidence. This is because even if the statements were hearsay evidencethey would have been admissible under s 18 of the Evidence Act 2006 if the Crownhad relied upon that section. There are two reasons for this conclusion:(a) the circumstances relating to the statement provided reasonableassurance that the statement was reliable; and(b) the unknown male caller was not available as a witness.[21] In addition, even if the evidence in question was inadmissible, it had minimalimpact on the trial. What was important was whether the jury accepted Ms V'sevidence about Mr Anderson's admission to her that he had created the fakeFacebook dating site page in Ms V's name to cause men to contact her for sexualpurposes. Once the jury accepted Ms V's evidence on this point, the third chargewas proven beyond reasonable doubt.[22] Similarly, we find no basis to allow the second ground of appeal againstconviction. Ms V gave evidence about her immediate conclusion Mr Anderson wasresponsible for the fake Facebook page. She said in relation to the unsolicited textmessages: "I knew straight away it was him, that Michael Anderson would do that tome".[23] Her evidence was opinion evidence as defined in s 4 of the Evidence Act.Ms V's opinion was, however, admissible in order to enable her to explain why shechallenged Mr Anderson about him having set up the Facebook page when shecommunicated with him on 27 July. Ms V's opinion evidence was admissible unders 24 of the Evidence Act.77 Evidence Act, s 24: "A witness may state an opinion in evidence in a proceeding if that opinionis necessary to enable the witness to communicate, or the fact-finder to understand, what thewitness saw, heard, or otherwise perceived".[24] Even if Ms V's opinion evidence was inadmissible, it had minimal impact onthe trial. The fact Mr Anderson was responsible for creating the fake Facebook pagewas clearly established through other means, including his admission to Ms V on28 July and the fact that he was the only person who could have placed her profilephoto on the Facebook page.Appeal against sentenceLength of sentence[25] We have carefully examined comparable cases and have concluded thesentence of 18 months' imprisonment was not manifestly excessive.[26] Breaches of protection orders vary enormously in culpability and in degreesof threat and psychological or physical harm to the protected person.8 Each casehinges on its own facts. We have noted, however, cases of a similar nature toMr Anderson's in which the range of sentences was 12–24 months' imprisonment.9[27] We conclude the sentence of 18 months' imprisonment was within the rangeavailable for the following reasons:(a) Mr Anderson had four previous convictions for breaching theprotection order. The previous incidents included occasions whenMr Anderson telephoned and sent text messages to Ms V, and oneoccasion on which he visited her home and physically abused her;(b) the third of the convictions for which Mr Anderson was sentenced byJudge Harding was a sinister event and involved him engaging in ahigh level of psychological bullying of Ms V;(c) the pattern of Mr Anderson's breaches of the protection orderdemonstrate an escalating level of seriousness; and8 Woods v Police [2015] NZHC 305 at [37] and Mam v Department of Corrections HCChristchurch CRI-2011-409-111, 1 December 2011 at [4].9 Mataiti v Police [2014] NZHC 1675; Woods v Police, above n 8; Apineru v Police [2014] NZHC1969; Palmer v Police [2015] NZHC 143; Kumar v Police [2015] NZHC 1575; and Bartlett vPolice [2016] NZHC 850.(d) Mr Anderson showed no remorse or appreciation of the seriousness ofhis behaviour.Home detention[28] We also accept that Judge Harding properly exercised his discretion when hedecided not to grant Mr Anderson home detention.[29] The pre-sentence report demonstrates Mr Anderson's poor prospect ofrehabilitation, and refers to his "struggles with not being able to exert power andcontrol" and his obsessiveness about his relationship with Ms V. It is also a matter ofconcern Mr Anderson's three recent offences occurred when he was subject to asentence of supervision relating to his earlier breaches of a protection order.[30] In upholding the sentence, we record that we have not overlooked a challengeto Judge Harding's finding of premeditation in relation to the supermarket incident.Mr Anderson argues there was no evidence to support that finding. We reject thatargument. Judge Harding was the trial Judge and was entitled to draw that inferencefrom Mr Anderson's conduct after the incident and from his knowledge of Ms V'sroutines.Conclusion[31] The appeal against conviction and sentence is dismissed.Solicitors:Crown Solicitor, Manukau for Respondent