SULLIVAN v NZ POLICE [2019] NZHC 284

SULLIVAN v NZ POLICE [2019] NZHC 284 [27 February 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000124[2019] NZHC 284BETWEEN MICHAEL RAMEKA ERU SULLIVANAppellantAND NEW ZEALAND POLICERespondentHearing: 21 February 2019Appearances: A Bailey for AppellantR Harcourt for RespondentJudgment: 27 February 2019JUDGMENT OF OSBORNE JIntroduction[1] The appellant, Michael Sullivan, was found guilty of three charges on 26August 2018, relating to separate incidents:(a) 30 September 2016: injuring with intent to injure and breaching aprotection order;(b) 7 July 2017: male assaults female and breaching a protection order;and(c) 17 July 2017: male assaults female and breaching protection order.[2] Mr Sullivan was sentenced by Judge Garland on 2 November 2018 to aneffective term of imprisonment of two years and three months.1 He appeals thatsentence on the basis it was manifestly excessive and that a period of home detentionshould have been imposed.District Court decision[3] Judge Garland decided to impose cumulative sentences, overlaid by thetotality principle. He explained that this was because there were three separate anddiscrete sets of offending. The reduction for totality was governed by s 85(2)Sentencing Act 2002, which provides:(2) If cumulative sentences of imprisonment are imposed, whetherindividually or in combination with concurrent sentences, they mustnot result in a total period of imprisonment wholly out of proportionto the gravity of the overall offending.30 September 2016[4] Commencing with the offending on 30 September 2016, the Judge noted thatthe tariff case is Nuku v R.2 In Nuku Glazebrook J delivering the judgment of the Courtof Appeal, identified three bands applicable to offending under ss 189(2), 188(2) and191(2) Crimes Act 1961 (where the offending involves intent to injury).3 The bandsare:4(a) Band one – four aggravating factors, relatively low level violence,culpability better related on a less serious charge: sentence less thanimprisonment can be appropriate.(b) Band two – three or fewer of the aggravating factors listed in R vTaueki.5 A starting point of up to three years can be appropriate.1 Police v Sullivan [2018] NZDC 22816.2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.3 At [37].4 At [38].5 R v Taueki [2005] 3 NZLR 372 (CA).(c) Band three – three or more of the Taueki factors, with the combinationof features being particularly serious: a starting point of two years upto the statutory maximum will apply.[5] Judge Garland noted the aggravating features of Mr Sullivan's offending asbeing:(a) serious violence;(b) threats to the victim;(c) attack to the head with punches and stranglehold on neck;(d) use of a weapon (a kettle), albeit one that was unlikely to lead to lethalconsequences;(e) vulnerability of the victim who was reliant on a police safety order andprotection order; and(f) impact on the victim, involving both physical injuries and emotionalharm.[6] Judge Garland placed this offending within band two of Nuku, noting that bandtwo has a starting point of up to three years' imprisonment. His Honour found that astarting point of 18 months would be appropriate on those two charges.7 July 2017[7] For the offending on 7 July 2017, the Judge noted there was no tariff caseavailable. His Honour identified the aggravating features as:(a) serious violence, but acknowledging the victim did not suffer seriousinjury;(b) attack to the face by slamming it with a ceramic plate;(c) stranglehold on throat and applying great force to restrict ability tobreathe;(d) vulnerability of the victim who was reliant on a protection order; and(e) emotional harm to the victim.[8] His Honour adopted a starting point of 12 months' imprisonment for thisoffending.17 July 2017[9] Judge Garland finally considered the offending on 17 July 2017, for whichthere was also no tariff case. The aggravating factors were found to be:(a) serious violence;(b) stranglehold on neck with both hands;(c) vulnerability of the victim who was reliant on a protection order; and(d) emotional harm to the victim.[10] His Honour adopted a starting point of nine months.[11] If taken cumulatively, the starting point for the three sets of offending wouldhave been three years and three months. Judge Garland, having regard to the totalityprinciple, made the sentence one of two years and three months.[12] His Honour then identified as an aggravating feature that Mr Sullivan had threeprevious convictions all related to the same victim, but he had no other convictions.On that basis the Judge did not apply an uplift from two years and three months. HisHonour found no mitigating factors. Judge Garland therefore sentenced Mr Sullivanto two years and three months' imprisonment.Principles on appeal[13] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.6 As the Court of Appeal mentioned in Tutakangahau v R, quoting thelower court's decision, "an [appellate] court will not intervene where the sentence iswithin the range that can be properly be justified by accepted sentencing principles".7It is appropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.8SubmissionsAppellant's submissions[14] Mr Bailey, for the appellant, submits that the starting point adopted by theJudge was too high.[15] In relation to the first charge, Mr Bailey compared the starting point given tothose in several other cases, most notably Hohua v Police.9 In Hohua, the offendingwas described as follows:10Mr Hohua's response was to throw the GPS phone unit related to his EMbracelet at his partner. The phone bounced on her head and hit the stomach ofa second victim, his partner's sister, who was pregnant. Mr Hohua thengrabbed his partner and dragged her by the hair, pulling her hair back violentlyso she was on her knees, and repeatedly punched her in the head. In the courseof this attack, when drawing his arm back he elbowed the second victim in thestomach. He then kicked his partner twice in the head, resulting in a split tothe back of her head. The second victim was referred to and monitored at amaternity ward.6 Criminal Procedure Act 2011, ss 250(2) and 250(3).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].8 Ripia v R [2011] NZCA 101 at [15].9 Hohua v Police [2018] NZHC 3175.10 At [4].[16] The District Court Judge in Hohua adopted a starting point of 18 months'imprisonment with an uplift of one month for the male assaults female charge.11 Onappeal, Dobson J found that a starting point of 16 months' imprisonment "would havebeen sufficient".12 Mr Bailey therefore submits that the starting point for the firstassault in the present case should have been between 12 - 14 months, as it was lessserious than the offending in Hohua.[17] In relation to the male assaults female offending, Mr Bailey relies on the Courtof Appeal's judgment in Wallace v R.13 The appellant in that case had pleaded guiltyto two counts of male assaults female, two counts of common assault and one countof intentional damage which occurred over a period between 28 April and 3 May2011.14 Mr Bailey notes that the District Court Judge had adopted in Wallace a startingpoint of 15 months.15 The Court of Appeal concluded that this starting point waswithin the range albeit "stern".16[18] Mr Bailey further submits that, while the Judge's sentencing approach wasconventional for sentencing for most offending, an alternative approach would havebeen better suited to the situation. He submits that the Judge should have adopted anoverall starting point for the three offences because they involved the samecomplainant and were charged at the same time. Mr Bailey submits had the Judgetaken that approach, a sentence of two years and three months' imprisonment couldonly be viewed as excessive.[19] Finally, Mr Bailey submitted that, if the Court accepts that the sentence wasexcessive and reduces it to two years or less, home detention would be appropriate.He relied in particular on the appellant's age (25 years of age at the time of theoffences) and limited criminal history.Respondent's submissions11 At [8] and [10].12 At [24].13 Wallace v R [2012] NZCA 546.14 Wallace v R, above n 13, at [1].15 Wallace v R, above n 13, at [8].16 Wallace v R, above n 13, at [23].[20] Ms Harcourt, for the Police, submits that the starting points adopted by JudgeGarland were appropriate. The first set of offending clearly fits within band two ofNuku with six aggravating features identified.17 Ms Harcourt submits that theoffending in the present case is more serious than in the cited case of Hohua for tworeasons. First, the direct application of a kettle as a weapon involved more deliberationand preparation, and was potentially more harmful, than is involved where a defendantthrows their phone unit, as in Hopua. Secondly, the appellant in this case strangledthe victim. Ms Harcourt submits that this is a serious form of assault not present inthe case of Hohua. For these reasons she contends that the starting point of 18 monthswas appropriate.[21] Similarly, Ms Harcourt submits that the offending in the present case is moreserious than that in Wallace, the case cited by Mr Bailey in relation to the second andthird sets of offending. Mr Sullivan strangled the victim again in both the second andthird sets of offending and should therefore attract a higher starting point.Furthermore, Ms Harcourt submits it is a second important aggravating feature thatthe appellant in the present case slammed a plate into the victim's face. She submitsthat the respective starting points adopted of 12 months and 9 months were thereforeappropriate.[22] Ms Harcourt contends that the appellant is incorrect in submitting that thesentencing process was flawed because the Judge took cumulative starting points foreach set of offending. His Honour did so "because there are three separate and discretesets of offending", an approach Ms Harcourt submits was entirely open to him.Furthermore, she notes that the Judge then applied a significant reduction for totality.Ms Harcourt submits that this ensured the sentence was not unjustifiably high, andmeant the Judge did approach matters "in the round" as the appellant argued he shouldhave.Analysis[23] The starting point of 18 months taken for the first set of offending waswarranted by this offending, which fell within band two of Nuku. The 18 months17 Nuku v R, above n 2.adopted by the Judge, as compared to the 16 months in Hohua, was within the range(albeit at the top end) given the number and seriousness of aggravating factors.Features which particularly distinguish this case from Hohua include the vulnerabilityof the victim (which had led to the imposition of the protection order and a policesafety order, the latter less than 48 hours old). They also include Mr Sullivan'sstrangulation of his victim. While the violence in Hohua appears to have been moresustained it lacked the range of aggravating features which remain under Nuku animportant aspect of assessment of an appropriate starting point. Furthermore, thisstarting point was the subject of appreciable reduction when the Judge took totalityinto account for all three sets of offending.[24] The starting points of 12 months and 9 months for the second and third setsrespectively were also within range. Mr Bailey relied on the case of Wallace insubmitting that this combined starting point of 21 months was too high, because inWallace a starting point of 15 months was adopted.[25] I do not consider Wallace v R to be of helpful assistance in this case indetermining what was either the appropriate starting point for the second and third setsof offending or in arriving at the appropriate end sentence. The distinct nature of thesecond and third sets of offending here made the Judge's decision to establish a startingpoint for each appropriate. Neither of the starting points, viewed individually, can beviewed as outside an appropriate range. As it happens, the 15 month starting pointupheld by the Court of Appeal in Wallace is marginally above the 14.5 months whichmight be calculated as representing the starting point of the second and third sets ofoffending if they are combined. There are distinguishing, aggravating features in thiscase (as identified by Ms Harcourt above at [21]) which justify the District CourtJudge's starting point.[26] Taking into account the deduction for totality, the combined starting point ofthese two sets of offending amounts to around 14.5 months in the present case. Thisis somewhat lower than the starting point in Wallace, for what Ms Harcourt perhapsrightly submits was more serious offending.[27] Finally, there is no merit in the appellant's claim that the Judge was incorrectto adopt a cumulative approach for each set of offending overlaid by the totalityprinciple. The injuring with intent involved in the first offending was different in kindto the male assaults female of the latter counts. The substantial reduction on the basisof totality accorded with the requirements of s 85(2) Sentencing Act.Conclusion[28] Judge Garland in sentencing Mr Sullivan adopted appropriate starting pointsin regard to each set of offending. His Honour did not err either in imposingcumulative sentences or in the reduction he made from starting points on account ofthe totality of the sentences.[29] The appeal is dismissed.Osborne JSolicitors:Crown Law Office, Christchurch for RespondentHansen Law, ChristchurchCounsel: A Bailey, Barrister, Christchurch