FAITH v NEW ZEALAND POLICE [2018] NZHC 1576

FAITH v NEW ZEALAND POLICE [2018] NZHC 1576 [28 June 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-27[2018] NZHC 1576BETWEEN MICHAEL SCOTT FAITHAppellantAND NEW ZEALAND POLICERespondentHearing: 21 June 2018Appearances: P B McMenamin for AppellantS L Dayal for RespondentJudgment: 28 June 2018JUDGMENT OF NICHOLAS DAVIDSON JIntroduction[1] Mr Faith pleaded guilty to charges of burglary, theft, dishonestly interferingwith a vehicle, wilful damage, possession of instruments for conversion, two breachesof a protection order, two counts of male assaults female and two counts of intentionaldamage. On 14 November 2017, he was sentenced to a total of two years andfour months imprisonment.1 He appeals this sentence, saying it is manifestlyexcessive.1 Police v Faith [2017] NZDC 29768.Facts[2] On 7 August 2017, in daylight hours, Mr Faith went to a property in suburbanChristchurch. He entered a shed and stole vehicle batteries valued at $1,500.[3] On 13 August 2017, he entered a vehicle parked on a suburban street and stoleloyalty and fuel cards. He used a screwdriver to break the ignition barrel but fledwhen disturbed. He was subsequently apprehended by police with a backpackcontaining the stolen cards and numerous tools.[4] On 15 September 2017, a protection order was served on him relating to hisformer partner.[5] On 21 September 2017, while on bail, Mr Faith went to the address of hisformer partner's step-mother. His former partner and her step-mother were there. Hefound his former partner in a bedroom. He verbally abused her and struck her twicein the head. He put a pillow over her face for approximately two minutes whilecontinuing to abuse her, and punched her in the head twice more. He was asked bythe step-mother to leave, but refused. Instead, Mr Faith followed his former partnerinto the kitchen, continuing to abuse her. He attacked her again, punching her on theleft cheek. She was knocked unconscious and fell to the floor.[6] He returned in the early hours of 22 September 2017 and broke a window togain entry. He smashed the step-mother's cell phone and punched his former partnerin the arm and body. When pushed out, he threw a bucket of paint over the side of thehouse. He went to the rear of the property and smashed the windows ofthe step-mother's car. He returned later in the morning and was arrested.District Court sentencing[7] The Judge took a starting point of two years for the offending on 21 and22 September 2017, for repeated violence, the blows to the head and suffocation.These acts were in breach of the protection order and aggravated by spiteful damageto the house, cell phone and car.[8] An uplift of ten months for the burglary and six months for the vehicle relatedoffending on 13 August 2017 applied, as distinctly separate offending. The Judgefound that Mr Faith intended to take the car, and would likely have done so, if notdisturbed.[9] The Judge considered aggravating factors, and applied a two month uplift foroffending while on bail and while subject to sentences of supervision and communitywork, and a further uplift of two months because the offending in the early hoursof 22 September 2017 involved unlawful presence in the house. A third uplift oftwo months applied for the fact that much of the offending was premeditated.Mr Faith has 27 previous dishonesty convictions, four convictions for male assaultsfemale and a conviction for breaching a protection order, and the Judge applied anuplift of four months for this.[10] Mr Faith pleaded guilty to all charges, although his pleas were delayed inrespect of the earlier charges. He was willing to participate in restorative justice,although the victims were not. For those matters, the Judge reduced the sentence by12 months to just over three years and two months imprisonment. Looking at thetotality of the sentence, the Judge further reduced the sentence by three months. Theoverall sentence was therefore two years and 11 months imprisonment imposed asfollows:(a) Two years imprisonment for breaches of the protection order;(b) 12 months imprisonment for the charges of male assaults female, to beserved concurrently;(c) Eight months imprisonment for the charge of burglary, to be servedcumulatively,(d) Three months imprisonment for the charge of interfering with a motorvehicle, to be served cumulatively;(e) One months imprisonment for the other charges, to be servedconcurrently.Leave to appeal out of time[11] The notice of appeal was filed outside the 20 working day window required bys 248(2) Criminal Procedure Act 2011. Mr Faith completed an application which didnot reach his counsel.[12] The overriding consideration for an extension of time is whether the interestsof justice support that. Weight will be given to the merits of the appeal.2 It may berelevant that the respondent does not oppose leave.3 Leave to appeal out of time ishere granted as the respondent is not disadvantaged and the interests of justice supportthe appeal being heard. There appears to have been a break in the link with counselwhich explains the late filing.Principles on appeal[13] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act and are determined in accordance with s 250 of that Act. An appealwill only be allowed by this Court if there has been an error in the imposition of thesentence and that a different sentence should be imposed.4 This Court will interveneand substitute its own views if the sentence is "manifestly excessive" and not justifiedby the relevant sentencing principles.5SubmissionsAppellant's submissions[14] Mr McMenamin submits that the two year starting point and the final sentencefor domestic violence offending was too high. Mr Faith was bailed to the addresswhere the offending occurred. He had been living there for about two months withthe knowledge and approval of the victims and the bail conditions included a curfew.2 Mikus v R [2011] NZCA 298 at [26].3 Tekira v Police [2014] NZHC 700.4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Ripia v R [2011] NZCA 101 at [15].[15] The protection order was obtained a week before these events, when Mr Faith'spartner was not at the address and his living there was not then a concern.Mr McMenamin says that his partner came to stay there a couple of days before theoffending, this put Mr Faith in a difficult position, as that was his bail address. Hesubmits that Mr Faith was entitled to be at the address and no breach of the protectionorder could arise from that fact. He submits breach of the protection order by hisabusive conduct is an aggravating feature of the assault but otherwise adds little to thegravity of the overall offending.[16] He also submits that breach of the protection order falls far short of warrantinga sentence of imprisonment of two years imprisonment and says a sentence in theregion of six months would be adequate. He also submits that, while it may be arguedthat the two year sentence was intended to reflect the totality of this offending, that isby no means apparent. That would require an increase in the sentence for the assaultsto compensate for any reduction in sentence for the protection order charges. This, hesubmits, is not available. He argues that the two sets of assaults should be seen aspart of "one transaction" and the second was relatively minor, as were the injuriescaused, and that an end sentence of 12 months imprisonment for these sets of offendingwas appropriate.[17] Mr McMenamin also submits that the ten month uplift for the burglary was toohigh, given it was not at a dwelling house or place where people might be encountered,or where personal or privacy rights must be infringed. It was a shed on an industrialsite which does not appear to have been secured or closed. He submits that previousdishonesty convictions should not be taken into account at this stage in the sentencingcalculation, as an uplift was applied later.[18] He also argues that the total uplift of ten months for aggravating factors wasdisproportionate to the substantive sentence and there should have been no uplift forbeing unlawfully at the property to amplify the domestic violence offending becauseit was already a factor in the second breach of the protection order. A charge ofburglary of the dwelling house was laid but withdrawn as part of a plea deal and it wasnot appropriate for the Judge to penalise the appellant for that aspect.[19] Mr Faith's partner has made a statement in which she asks the Court not tosentence Mr Faith to imprisonment because she relies on him, and they were gettingcounselling to improve their relationship. She had not sought the protection order andwanted it withdrawn. The wishes of a victim are not determinative, butMr McMenamin submits they should be taken into account by the Court.Respondent's submissions[20] Ms Dayal submits that the sentence imposed was not manifestly excessive. Forthe offending on 21 and 22 September, Ms Dayal compares the two year starting pointto Enoka v R,6 Goodman v R,7 and Areaiti v Police.8 All involved charges of maleassaults female but the first two cases involved assault with intent to injure andinjuring with intent to injure, which carry a higher penalty.[21] Enoka v R involved two sets of offending, and during the first, the defendantput his hands around the victim's neck and squeezed, causing her difficulty breathing.The second involved his pushing the victim to the floor and punching her. Sheattempted to walk away and he lifted her up by putting his arm under her chin. Hepulled the cord out of the wall when she tried to call the police. He put her in a chairthen pushed it away with such force she fell over. The Court of Appeal found that astarting point of three years and six months imprisonment was slightly too high.[22] In Goodman v R, the defendant grabbed the victim by the throat and threw herover a wooden basket. She got to her feet and he pushed her down and head-buttedher. He then pushed and kicked her. The Court of Appeal found that a starting pointof 28 months was within the available range. A single charge of male assaults femaletends to carry a term of imprisonment between two and 12 months and sentencesbetween two and three years imprisonment for domestic violence offending are notuncommon.96 Enoka v R [2012] NZCA 435.7 Goodman v R [2016] NZCA 64.8 Areaiti v Police [2014] NZHC 2150.9 Goodman v R, above n7, at [12].[23] In Areaiti v Police, the appellant threw a glass bottle at the victim, grabbed herby the throat and pinned her against the wall, such that she struggled to breathe. Twodays later he picked up a bicycle to head height and threatened her. When she lockedherself inside a vehicle, he kicked the vehicle and struck the window, yelling that hewas going to kill her and her family. A starting point of 18 months imprisonment wasadopted.[24] Ms Dayal submits that while Mr Faith may have been residing at the address,the protection order meant he needed his partner's permission to be at the addressonce she moved in and there is no indication her consent was sought by Mr Faith onany of the three occasions he went to the property on 21-22 September.[25] She also submits that a ten months uplift was well within range for the burglary.The fact the shed was unsecured does not diminish the seriousness of the offending.She compares this case to Craigie v R where the appellant and an associate burgled acommercial property at night.10 They stole three radiators, some scrap metal anda small welder. The total value of items taken was about $600. A starting point of12 months imprisonment was upheld on appeal.[26] Ms Dayal argues that the other uplifts were within range, and two months forunlawful presence in the house was an aggravating feature the Judge was required totake into account under s 9(1) of the Sentencing Act 2002.[27] She submits that the Judge would have considered the victim impact statementwhich sought leniency, even if he did not expressly refer to it. The fact the victimrescinded her statement is consistent with that of a vulnerable person who has enduredcontrolling and manipulate behaviour from a domestic partner, referred to by the Courtof Appeal in R v EF.11Analysis[28] Viewed in the round, a starting point of two years for the totality of theoffending on 21 and 22 September was entirely appropriate. There were two quite10 Craigie v R [2009] NZCA 190.11 R v EF [2012] NZCA 402.separate assaults, one of which involved multiple attacks to the head and attemptedsuffocation. The second was compounding in its flagrant disregard for the protectionorder and doubled down on the first. One attack was sufficient to render thecomplainant unconscious. The assault charges warranted a starting point of at least15 months in my judgment. The two breaches of a protection order cannot be setaside. Mr McMenamin agreed they warranted an end sentence of six months, and forthe two charges of intentional damage, an uplift of around 3 months imprisonment.The starting point of two years for the totality of this offending was well within range,as indicated by the cases referred to by Ms Dayal.[29] Mr McMenamin is right that the Judge applied a two year end sentence to thebreach of protection order charges when much of the weight of the offending lay inthe assault charges. This reasoning of the Judge was I think an administrativeconvenience and does not negate the starting points appropriately reached for eachcharge.[30] I agree with Mr McMenamin that an uplift for Mr Faith being unlawfully at theproperty on 22 September would be out of place. Mr Faith was required to be therebecause of his bail conditions. When he came back, having been told to leave this"excuse" falls away. However, given the totality adjustment made by the Judge, theremoval of this uplift does not affect the end result.[31] I do not consider that the statement made by the victim requires adjustment tothe sentence. It is common in domestic violence cases for victims to change theirminds and then express support, even affection, for the offender but this is a sadreflection of the nature of a relationship which includes violence.[32] The ten month starting point for burglary is within range for a burglaryinvolving a commercial shed. Dwelling house burglaries attract starting points ofeighteen months and above. The substantially lower starting point reflects the fact thatthere was little risk Mr Faith would encounter other people, and the lower level ofinvasion of privacy during daytime. This starting point may be reached without takingaccount of Mr Faith's previous burglary convictions so there has been no doublecounting of that factor.Conclusion[33] The sentence reached by the Judge was not manifestly excessive, and theappeal is dismissed. Mr McMenamin was as usual persuasive in his approach butstanding back this is, in total, a cluster of serious offending and the violence in themale assaults female charges is the directive element of the sentence. If anything,the overall sentence is lenient.[34] The appeal is dismissed...Nicholas Davidson JSolicitors:K J McMenamin & Sons, ChristchurchRaymond Donnelly & Co., Christchurch