PAHULU v NEW ZEALAND POLICE [2020] NZHC 153

PAHULU v NEW ZEALAND POLICE [2020] NZHC 153 [13 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000550[2020] NZHC 153BETWEEN MONU TANIELA PAHULUAppellantAND NEW ZEALAND POLICERespondentHearing: 10 February 2020Appearances: S Walker for the AppellantK Fitzgibbon for the RespondentJudgment: 13 February 2020JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 13 February 2020 at 2:00 pm.Registrar/ Deputy RegistrarDate:Introduction[1] On 22 November 2019 Judge E Paul, in the District Court at Auckland,sentenced Mr Pahulu to 17 months' imprisonment following his pleas of guilty on thenine following charges:(a) breach of a protection order (x 2);1(b) breach of release conditions (x 2);2(c) breach of community work;3 and(d) failing to answer District Court bail (x 4).4[2] Mr Pahulu appeals his sentence on the basis that both the starting point and theuplift for previous convictions resulted in a manifestly excessive sentence. He alsoclaims the Judge erred by failing to grant him leave to apply for home detention.The offendingBreaches of protection order[3] The victim is Mr Pahulu's ex-partner. The couple have two children together.On 18 December 2016, the victim was granted a final protection order againstMr Pahulu.[4] The first breach occurred on 5 February 2019 at the family home. Althoughthe summary of facts is silent on the point, it seems that the couple were residingtogether at the time. The conditions to the protection order permitted this if the1 Family Violence Act 2018, ss 90(a)(iv) and 112(1)(a): Maximum penalty three years'imprisonment. The first breach took place in February 2019, so it is governed by the DomesticViolence Act 1995 (repealed on 1 July 2019 by the Family Violence Act 2018), ss 49(1)(b) and49(3). The second is governed by the Family Violence Act 2018. The maximum penalty is threeyears' imprisonment under both Acts.2 Sentencing Act 2002, s 96(1): Maximum penalty one year imprisonment.3 Sentencing Act 2002, s 71(1)(a): Maximum penalty one year imprisonment.4 Bail Act 2000, s 38(a): Maximum penalty one year imprisonment.protected person expressly consented. Consent could be revoked by the protectedperson at any time.[5] Mr Pahulu attempted to initiate an argument with the victim following whichshe told him to leave. He refused and remained inside the house. Further requeststhat he leave were ignored. In the face of these refusals, the victim left the addressand flagged down a passing Police patrol. The Police found Mr Pahulu hiding undera bed in one of the bedrooms.[6] The second breach occurred some seven months later on 27 September 2019.Mr Pahulu arrived at the victim's home while she was hanging up the washing. Itseems that by this time Mr Pahulu was no longer residing at the address. As he walkedpast her, the victim asked Mr Pahulu what he was doing there. He ignored her andwent inside. The victim followed. She told him he was not welcome and asked himto leave. An argument followed. Unable to get Mr Pahulu to leave, the victim leftand, it seems, called the Police and waited down the street for them to arrive.Breach of community work[7] This charge relates to Mr Pahulu's failure on 24 November 2018 to report forwork after he had been sentenced to community work.Breach of release conditions[8] On 10 January 2017 Mr Pahulu was sentenced to 22 months' imprisonment oncharges including male assaults female, speaking threateningly, contravening aprotection order, failing to answer bail and breach of community work. On13 January 2017 he was released subject to conditions. One of those conditions wasthat he attend a departmental programme. He was expelled from the programme justa week or so later as a consequence of multiple breaches. Another condition of releasewas that he not associate with the victim. He breached that condition on an occasiondifferent from those which are the subject of the current appeal.Failure to answer District Court bail[9] Four charges reflected this offending. Neither counsel was able to assist withany specifics or detail around the offending nor is that level of specificity necessary todispose of this appeal.Previous criminal history[10] Mr Pahulu, at the age of 35, has a very extensive criminal history. This includesseven convictions for family violence. He has 23 convictions for breaching variousCourt orders and three convictions for breaching a protection order (in 2012 and 2016).In 2017 he was sentenced to 22 months' imprisonment for a variety of offencescommitted during 2016 and 2017. These included charges of male assaults female,failing to answer District Court bail, breaching community work and breaching releaseconditions.[11] It is understood that the domestic violence offences and the breaching of aprotection order related to the same victim as the later charges which are the subjectof this appeal.Victim impact statement[12] In respect of the breach in February 2019 the victim stated:I feel extremely unsafe as my protection order has not done anything to stopMonu from coming over. He lets himself in or lock me in the house so I can'tleave. He's good with the kids so I don't understand why he is like this andhe comes from a good family.District Court decision[13] The breaches of the protection order were taken as the lead offences. Thesentence of 17 months' imprisonment was constructed in the following way:(a) a starting point of nine months' imprisonment for breaching theprotection order in February 2019;(b) a three month uplift for breaching the protection order in September2019;(c) a three month uplift on account of the other charges;(d) a one month uplift on review to account for the uncompletedcommunity work; and(e) a six month uplift for the history of offending against the victim, andprevious convictions.[14] This led to a total of 22 months before the guilty plea discount. The Judgemade a five-month reduction, resulting in aa final sentence of 17 months'imprisonment.[15] The Judge noted that Mr Pahulu's counsel had attempted to secure an EMaddress but that had not proved possible.[16] The Judge concluded by imposing standard and special release conditions sixmonths past Mr Pahulu's sentence end date.[17] All sentences were ordered to be served concurrently.Approach to appeal[18] Section 250 of the Criminal Procedure Act 2011 applies. Pursuant to thatprovision the Court must allow the appeal if it is satisfied that:(a) for any reason there was an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[19] In any other case the Court must dismiss the appeal.5 This section confirmsthe approach taken by the Courts under the Summary Proceedings Act 1957 where theCourt said: 6(a) there must be an error vitiating the lower Court's original sentencingdiscretion: the appeal must proceed on an "error principle";(b) to establish an error in sentencing it must be shown that the Judge inthe lower Court made an error whether intrinsically or as a result ofadditional material submitted to the appeal Court; and(c) it is only if an error of that character is involved that the appeal Courtshould re-exercise the sentencing discretion.[20] This Court will not intervene where the sentence is within the range that canbe properly justified.7SubmissionsAppellant[21] Mr Walker, for Mr Pahulu, first submits that the combined starting point of12 months' imprisonment for the two breaches of the protection order was excessive.He describes the breaches as lower end and suggests more moderate, albeit still stern,sentences should have been imposed; six months' imprisonment for the first breachwith an uplift of two months to take into account the second breach, a total of eightmonths' imprisonment.[22] He submits that in setting a 12 month starting point the Judge must havefactored in Mr Pahulu's relevant previous convictions. By adding a six month upliftfor previous convictions the Judge must have double counted and thus erred.5 Criminal Procedure Act 2011, s 250(3).6 Yorston v Police HC Auckland, CRI-2010-404-164, 14 September 2010 at [13]-[15].7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].[23] Mr Walker submits that the appropriate final sentence would have been touplift the eight months by three months for the other charges, one month for theuncompleted community work, and three months on account of Mr Pahulu's previousconvictions. With aa discount for the guilty plea of three months, this would lead to afinal end sentence of 12 months' imprisonment.[24] Mr Walker also takes issue with the six month standard and special releaseconditions from the sentence end date. Assuming the Judge was referring to thesentence expiry date, calculated to be 23 February 2021, his standard and specialrelease conditions would expire on 23 August 2021. Given Mr Pahulu's release datewill be 10 June 2020 the release conditions will endure for a further 14 months afterMr Pahulu's release.[25] Finally, Mr Walker points out that the Judge gave no consideration to whethera sentence of home detention should be imposed. He submits that under s 80I(2) ofthe Sentencing Act 2002 ("the Act") the Judge should have made an order grantingMr Pahulu leave to apply for cancellation of the sentence of imprisonment and thesubstitution of a sentence of home detention if a suitable residence was identified.Crown[26] Ms Fitzgibbon, for the Crown, submits that the 12 month starting point, whileplainly at the upper available limit, were nonetheless within range. She describes thebreaches as "moderately serious". She submits that the six month uplift forMr Pahulu's extensive criminal history was also appropriate.[27] As for the release conditions, Ms Fitzgibbon submits that Mr Pahulu's chronichistory of non-compliance with Court orders and the continuing risk he poses to thevictim made the imposition of a maximum period of release conditions necessary.[28] On the issue of whether leave to apply for home detention ought to have beengranted, Ms Fitzgibbon submits that although the Judge did not explicitly address thisissue in his sentencing notes it can be taken that he was not prepared to make such anorder for the same reasons.Analysis[29] In Jackson v Police Hinton J undertook a helpful analysis of sentencing levelsinvolving breaches of protection orders.8 She concluded, and I agree, that sentencesfor breaching protection orders vary to a large extent. For that reason, a case-by-casecomparison is difficult because the offending is so variable and is always highlycontextual.9[30] However, having regard to the cases referred to in Jackson, as well as thoserelied on by counsel in the present case, I cannot but conclude that a starting point ofnine months' imprisonment for the first breach uplifted by three months for the secondwas manifestly excessive.[31] I do not regard Mr Pahulu's breaches as "moderately serious". There was nophysical violence, threats of violence, harassment or psychological abuse, as iscommon with this type of offending. On the 5 February 2019 breach the parties werearguing, leading the victim to extricate herself from the disagreement and flag down apassing Police patrol. This does not seem to be a case where the offender's presencewith the victim was prohibited by the order. Instead, Mr Pahulu was lawfully in thevictim's company but refused to leave when asked and persisted in that refusal. In myview that conduct places the offending towards the lower end of culpability. On thesecond breach on 27 September 2019 it would appear that Mr Pahulu did not engagewith the victim at all. But, again, he refused to leave when asked to do so. Again, thisis relatively low level offending of its type.[32] Mr Pahulu's conduct is in stark conduct to the authorities cited by the Crown.For example, in Irving v Police a 10 month starting point was upheld for two breachesof a protection order where the offender called the victim 23 times over approximately48 hours, then went to her address and banged on her windows at night.10Dunningham J described the 10 month starting point as being at the upper limit of theappropriate range.8 Jackson v Police [2019] NZHC 281.9 At [41].10 Irving v Police [2017] NZHC 3085.[33] In Mataiti v Police a 16 month starting point was upheld for two breaches of aprotection order.11 On the first occasion the appellant, enraged when the victim wouldnot give him a cigarette, became verbally abusive, refused to leave the property andsmashed a hole in a door. He left the property with the couple's three-year-old childwhen he realised the victim was calling the Police. On the second breach the appellantand the victim became engaged in a heated argument. He refused to leave the propertydespite her repeated requests. There was some pushing and shoving between theparties which was sufficiently evident to lead the neighbours to call the Police. HealthJ observed that while the starting point was stern there was no basis to interfere withit on the grounds of manifest excess. Again, the offending in Mataiti is a good dealmore serious than the present.[34] In Carlyon v Police the appellant was sentenced on two breaches of aprotection order.12 He twice entered the victim's house without her invitation andrefused to leave while verbally abusing her. The sentencing Judge took a starting pointof 18 months with an uplift of six months on account of the appellant's history.Venning J found that the starting point was appropriate, noting that prior convictionsfor breaches of protection orders are integral to the assessment of the gravity of theoffending. He noted, however, that when applying an uplift for previous offending asentencing Judge must be careful not to double count the defendant's convictions forbreaching protection orders. Venning J described the appellant's criminal history as"an appalling record of 56 convictions for assault and trespass". Notwithstanding, heconsidered the uplift of six months was excessive when taken together with the startingpoint. He reduced the uplift to three months.[35] Mr Pahulu's past breaches of the protection order must affect my assessmentof the gravity of his offending.13 Even so, I am satisfied that the starting point of12 months was too high because of the relatively low level culpability of the indexoffending. In my view, having regard to maximum penalty of three years'imprisonment, a sentence of six months' imprisonment for the first breach, uplifted bythree months for the second appropriately reflects the totality.11 Mataiti v Police [2014] NZHC 1675.12 Carlyon v Police [2017] NZHC 2526.13 Mitchell v R [2013] NZCA 583 at [12].[36] The sentencing Judge's uplift of three months' imprisonment for the remainingcharges cannot be criticised. Indeed, Mr Walker responsibly accepts as much. He alsoaccepts that the one month term of imprisonment imposed on Mr Pahulu for his failureto complete the community work as ordered was appropriate.[37] However, in contrast, the uplift of six months' imprisonment for Mr Pahulu'sprevious convictions is, in my view, excessive. While the Judge rightly described thathistory as "bad", particularly in relation to the offending against this particular victim,such an uplift, from a starting point of 16 months is unsustainable. On this topic theCourt of Appeal observed in Tamihana v R:14"Previous convictions can be relevant, particularly where the previousconvictions indicate a tendency to commit the type of offending for which theoffender is being sentenced. Issues of deterrence and, in some cases protectionof the public may require an uplift for previous offending. Similarly, previousconvictions may bear on the issue of character. Nevertheless, the Court mustbe careful to see that a sentence for a person who has been previouslyconvicted is not increased merely by reason of those previous convictions. Aprisoner shall not be sentenced again for an offence which he has alreadyexpiated."[38] In Tamihana the six month uplift for prior convictions from a starting point of18 months represented 33 per cent of the starting point. The Court of Appeal regardedsuch an uplift as excessive and substituted a three month uplift.15[39] In the present case the uplift is even greater, equating to a 38 per cent increaseon the 16 month starting point. In my view a three month uplift would have beenappropriate to recognise Mr Pahulu's history of other types of family violenceoffending.[40] Unsurprisingly Mr Walker takes no issue with the Judge's discount of fivemonths on account of Mr Pahulu's plea of guilty. On a 22 month provisional sentencethis represents a discount of nearly 23 per cent in the context of pleas which were notentered at the first practical opportunity.14 Tamihana v R CA672/2014, [2015] NZCA 169 at [27].15 Referring to Beckham v R [2012] NZCA 290 at [84] and Tiplady-Koroheke v R [2012] NZCA 477at [23]-[25].[41] This leaves the question of whether the Judge should have granted leave unders 80I of the Act for Mr Pahulu to apply for home detention. In this context it isnecessary to take into account what the Judge was confronted with at the time ofsentencing. He expressly acknowledged Mr Walker's attempts to obtain a suitableaddress for an electronically-monitored community-based sentence. He recorded thatit had not proved possible. At no stage did Mr Walker ask the Judge to grant leave toapply. In those circumstances it is difficult to criticise the Judge. At the hearing Iasked counsel to address me on whether it is mandatory for a sentencing Judge toconsider leave to apply for home detention when imposing a short sentence ofimprisonment, that is a sentence of less than two years.[42] I record my gratitude to Ms Fitzgibbon for her helpful supplementary, writtensubmissions on the point. She has drawn my attention to a recent judgment of thisCourt in Papa v Police.16 There Palmer J held that the failure to consider leave toapply for home detention was a material error. The issue of whether to grant leave interms of s 80I of the Act must be addressed and reasons given.[43] Given my finding that the sentence was manifestly excessive, it is necessaryfor me to set a different sentence and turn my mind to whether leave to apply for homedetention should be granted. I am not prepared to make an order under s 80I(2) of theAct. Since sentencing and the filing of this appeal Mr Walker has attempted to identifyan appropriate and suitable home detention address. He tells me that the only availableoption is Mr Pahulu's ex-partner. Plainly that is not appropriate. On the question ofwhether Mr Pahulu would be a suitable candidate for home detention I accept that hehas not previously been sentenced to home detention and thus his compliance withsuch a sentence is more difficult to evaluate. I also accept Mr Walker's submissionthat there are examples of offenders who have a history of poor compliance with Courtorders who, nonetheless, succeed in completing a sentence of home detention withoutbreach.[44] However, in this case, Mr Pahulu's previous convictions are so extensive, bothin time and in type that no Court could have confidence that he would comply with16 Papa v Police [2019] NZHC 1309.any conditions imposed. This pessimism is supported by the comments of the authorof the pre-sentence report. As already noted, Mr Pahulu's previous history from 2002to the present is peppered with numerous breaches of various Court orders andsentence conditions.[45] Finally, similar observations may be made as to the length of the standard andspecial release conditions. I agree with Ms Fitzgibbon that given Mr Pahulu's historyof non-compliance with Court orders, including special post-release conditions, andthe risk he poses to the victim, the imposition of the maximum period of releaseconditions is appropriate. His post release conditions are not particularly onerous andare aimed to assist Mr Pahulu with his reintegration and to prevent recidivism.Conclusion[46] Thus, in summary, the appeal is allowed and the sentence adjusted in thefollowing ways. The starting point for the protection order breaches is nine monthswith an uplift of three months for the other seven charges, one month on the reviewand three months on account of previous convictions. This totals 16 months to whicha 23 per cent discount is given for the guilty pleas, bringing the final sentence to 12months.Result[47] The appeal is allowed.[48] On each of the charges of contravening a protection order the sentence of17 months' imprisonment is quashed and a sentence of 12 months' imprisonmentsubstituted.[49] All other sentences remain intact including the imposition of the standard andspecial release conditions.[50] No order is made in terms of s 80I of the Act.[51] All sentences are to be served concurrently.Moore JSolicitors:Mr Walker, AucklandCrown Solicitor, Auckland