Duff v New Zealand Police [2019] NZHC 3118

Duff v New Zealand Police [2019] NZHC 3118 [28 November 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2019-463-86[2019] NZHC 3118IN THE MATTER of an appeal against conviction and sentenceBETWEEN NEVILLE MARK DUFFAppellantAND NEW ZEALAND POLICERespondentHearing: 1 November 2019Counsel: EJ Forster for appellantG Banuelos for respondentJudgment: 28 November 2019JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 28 November 2019 at 3:00 pm.Registrar/Deputy RegistrarDateSolicitors: Gordon Pilditch, RotoruaTo: E Forster, Hastings[1] Mr Duff pleaded guilty to the following charges:(a) Burglary in February 2019;(b) Disorderly behaviour and contravening a protection order on 17 May2019;(c) Trespass and assault on a person in a family relationship on 16 June2019;(d) Male assaults female and contravening a protection order on 17 June2019;(e) Driving dangerously, male assaults female, possession of an offensiveweapon, speaking threateningly, wilful damage, and contravening aprotection order on 23 June 2019.[2] He was sentenced by Judge Hollister-Jones to two years nine months'imprisonment in relation to all the above charges.1 He now appeals that sentence asmanifestly excessive.[3] I first summarise the facts concerning Mr Duff's offending.OffendingBurglary[4] Mr Duff went to a local counselling office, broke the rear door to gain access,and took a 40-inch television from the wall. It was valued at approximately $1,000.While Mr Duff was there he made himself something to eat.17 May 2019[5] Mr Duff's partner and the two children he has with her have a protection orderagainst him. On 16 May 2019, he went to the childcare centre where one of his1 Police v Duff [2019] NZDC 1727.children was being cared for and attempted to uplift his child, but was unsuccessful.The next day he returned. One of the staff members told him he was not permitted onthe premises and asked him to leave. He then charged at the staff member yelling "Iwill come over there and smash your fucking face", and lunged at her (although didnot hit her). Mr Duff left after members of the public intervened, but returned brieflylater that day to pace up and down the footpath outside.16 June 2019[6] Mr Duff had been previously trespassed from his sister's address. Henonetheless went to her address on 16 June 2019. Although she asked him to leave,he ignored her. Mr Duff became aggressive towards his sister, pushing her, thenpunching her in the ear and then the nose. He proceeded to punch her three to fourmore times to the head area with closed fists. She suffered minor injuries, including ableeding nose.17 June 2019[7] As noted above, Mr Duff's partner has a protection order against him.[8] Notwithstanding this, on 17 June 2019, he arrived unannounced at her address,took leftover food off the table, picked up their one-year old child, and walked out thefront door. Mr Duff's partner was upset by this and ran after him asking for the childto be returned. Mr Duff then turned towards her, threw the food at her, then punchedher once to the left side of the head. The victim's mother took the child from Mr Duffand asked him to leave. He became verbally abusive to members of the family buteventually left the address.23 June 2019[9] Mr Duff's partner was staying with a family member. Mr Duff arrived at theaddress and entered the room where his partner was sleeping with their children. Hetold his three-year old son he was "wasted". When Mr Duff's partner told him toleave, he punched her once to the left side of her head. She screamed for help andattempted to call the Police, but Mr Duff pushed her against the wall, grabbed thephone, and smashed it. She ran next door to her aunt's property for safety.[10] Mr Duff then pulled panels of the fence between the two properties and threwthem at the aunt's property. He also threw an empty bottle at the property, breaking awindow. He then kicked the front door, causing damage to the lock.[11] Mr Duff then put his three-year old son in his vehicle and drove around doingskids and donuts. The aunt went to seek help and upon arriving back at the address,she was spotted by Mr Duff who drove straight at her. The car got stuck on the curband stopped about five feet away from her. Mr Duff got out of the car, and asked her"where's your partner I will waste him". He then grabbed a knife from his car,threatened "I'll fuck you up bitch" and spat in her face, before driving off.District Court judgment[12] The District Court Judge acknowledged that given the number of incidents,"the sentencing exercise is not straightforward".2 He referred to the multiple victims,and considered it particularly aggravating that there had been family violenceoffending in front of Mr Duff's children.3 The Judge started with the burglary charge,imposing a start point of 12 months.[13] He considered the 16/17 May offending (the incident at the childcare centre)involved serious threats to the staff member, and "would have affected the whole day-care" as well as Mr Duff's son.4 He considered a start point of six months wasappropriate. Turning to the offending against Mr Duff's sister on 16 June, he took astart point of eight months. He also took a start point of eight months for the offendingagainst Mr Duff's partner on 17 June, noting that while it was not of a serious natureit involved Mr Duff's child and a breach of a protection order.2 Police v Duff [2019] NZDC 1727 at [15].3 At [11].4 At [16].[14] The Judge then turned to the 23 June offending.5 He considered it wasaggravated by the presence of multiple victims, the danger to Mr Duff's child, and theserious potential harm involved in the use of a knife while Mr Duff was agitated. Herecorded "there was a high potential for violence either from the motor vehicle or fromthe knife" and took a start point of 14 months.[15] The Judge considered the burglary, the day-care offending, and the 16 Juneoffending against Mr Duff's sister, were not connected, so sentencing for these shouldbe on a cumulative basis. He considered the final two incidents, both involving hispartner as a primary victim, and "a day apart",6 should be considered on a concurrentbasis. The Judge substituted the eight and 14 month sentences he otherwise wouldhave imposed with a combined start point for 16 months, which he described as "asignificant reduction, and effectively is the totality reduction".7 This produced a totalstart point across all offending of 42 months, or three years six months' imprisonment.[16] The Judge then uplifted this by four months to take into account Mr Duff'sprevious offending. He noted in particular that Mr Duff had four prior convictions forassaulting his partner between 2015 and 2018, as well as an earlier history of violentoffending and breach of protection orders.[17] The Judge nonetheless acknowledged Mr Duff's letter of remorse, andprovided a two-month discount, as well as a 25 per cent discount for guilty plea. Thisproduced an end sentence of two years, nine months' imprisonment.Personal circumstances[18] Mr Duff is 41 years of age. He has over 50 previous convictions, involving amixture of violence (including family violence), breaching protection orders anddishonesty offending. He has offended relatively consistently over the years and hasreceived a number of previous sentences of imprisonment. Where there are gaps in5 Although I note the Judge records this offending happened "the next day", the summaries of factsrecord it was in fact about a week after the 17 June assault against his partner.6 Again, it appears this was a misconception.7 Police v Duff, above n 2, at [21].the offending, at least some of that time will have been when Mr Duff has been inprison.[19] The summary of facts in relation to the 17 June 2019 offending notes therehave been 23 previous family harm incidents between Mr Duff and his partner, theprimary victim on that occasion.[20] Mr Duff denied aspects of the offending when interviewed by the Provision ofAdvice to Courts (PAC) report writer, in particular driving straight at his partner'saunt. He also told the report writer he was under the influence of substances at thetime of the offence.[21] The report records Mr Duff is involved in gangs (although had previouslydenied a gang affiliation), and opined his violence was driven by an impulsive natureand sense of entitlement. The report considers his risk of reoffending and harm is highgiven his extensive history of violent offending, including a propensity for violenceagainst intimate partners.Appellant submissions[22] The primary issue Mr Forster, counsel for Mr Duff, takes on appeal is the lackof an adequate reduction to consider the totality of the offending. The Judge onlyconsidered totality as between the two sets of offences against Mr Duff's partner. MrForster submits that there should also have been a consideration of totality moregenerally.[23] Mr Forster suggests that all the offending, other than the burglary, warranted astart point of around 12 to 18 months' imprisonment. He submits had the Judgeconsidered totality, he likely would have uplifted only 12 months from the 12-monthstart point for the burglary charge, and applied only a three-month uplift for priorconvictions. Applying a guilty plea discount, this would result in a sentence of 20months' imprisonment; significantly lower than the sentence the Judge arrived at.Respondent submissions[24] Ms Banuelos for the Crown responds that whether the end sentence ismanifestly excessive, rather than how it was constructed, is the crucial question onappeal. She submits a totality adjustment is not an automatic exercise and is onlyneeded where the sum of the individual sentences is wholly out of proportion to theoffending. Here, she accepts that the Judge did not (expressly) address totality overall,but says the Judge in fact adopted relatively generous start points for each set ofoffending, such that no adjustment beyond that already allowed for by the Judge wasneeded.[25] She highlights that the Judge effectively imposed a two year, six monthsentence for the entirety of the offending other than the burglary, which considering ittook place over four episodes, involved multiple victims, and a large number ofcharges, was justified. Ms Banuelos cites cases such as Hamilton v Police, where astart point of 12 months' imprisonment was adopted for a single episode involvingmale assaults female and breach of a protection order offending. There, Mr Hamiltonhad pushed the victim into a wall.8 Ms Banuelos suggests the punching involved inthe present case makes each of Mr Duff's assaults more serious than in that case.[26] She further notes the four-month uplift for previous offending was relativelylenient in light of Mr Duff's parlous criminal history, which includes 12 male assaultsfemale convictions and 10 previous convictions for breaching protection orders.Approach on appeal[27] Appeals against sentence are governed by s 250 of the Criminal Procedure Act2011:8 Hamilton v Police [2014] NZHC 2698. In this case, the appellant refused to leave the victim'saddress, pulled apart her cell phone when she tried to call Police, and pushed her against the wall.The 12 months start point was arrived at through an eight month start point for the breach ofprotection order, then a four-month uplift for the assault.250 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.(3) The first appeal court must dismiss the appeal in any other case.[28] An appeal will be successful only if the appellant can point to an error, eitherintrinsic to the Judge's reasoning, or because of additional material submitted on theappeal which vitiates the sentencing decision of the Court below.9 Unless there is amaterial error in sentence, for example, leading to a sentence that is manifestlyexcessive, manifestly inadequate, or wrong in principle, an appellate court will notintervene.10Evaluation[29] I start by noting that when adopting an aggregate start point for the offendingon 17 and 23 June 2019 of 16 months, rather than start points of eight and 14 monthson each charge respectively, the Judge stated this is "effectively the totality reduction".It is not clear whether the Judge meant this to be an assessment of totality across allthe offending, or only as between the last two charges. For present purposes, I willproceed on the basis that it related to those two charges only, though this is perhapssomewhat generous to the appellant.[30] I now turn to consider whether the end sentence arrived at is manifestlyexcessive. I do so by assessing what sentences could properly have been imposed forthe offending, to consider whether, even without assessing totality, the end sentencewas outside the range available to the Judge.9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [29]-[31].10 At [32]-[35].[31] I have preferred to adopt the offending on 23 June 2019 as the "lead" offending,it being the most serious in nature, despite the burglary charge attracting a longermaximum penalty.[32] The following cases provide some assistance in setting the start point for thatoffending:(a) Goodman v R:11 Mr Goodman was convicted of assault with intent toinjure and male assaults female. He had grabbed his partner around thethroat and threw her across the room (the assault with intent). He thenpushed her outside. On the porch he pushed her, then kicked her withsuch force she fell to the ground. The victim had a cut to the forehead,redness, and soreness. The District Court Judge took a start point of twoyears on the assault with intent, with an uplift of 12 months for the maleassaults female charge. After adjustments for totality, the start point was28 months. The Court of Appeal upheld the start point, agreeing it wasa serious assault involving attacks to the head and neck and would havebeen frightening.(b) Bolton v Police:12 This case involved two incidents of violence againstthe appellant's partner (both male assaults female), several weeks apart.On the first, the appellant threw her against wall, held her by her throat,and punched her twice in the face. On the second, the appellant kickedthe victim four times and smashed her property. The District CourtJudge took a starting point of 15 months on first incident (after priorconvictions and guilty plea, 14 months). On the second incident, theJudge took a starting point of 18 months (an aggravating feature of thesecond was the proximity to the first). Overall, the Judge opted for acumulative sentence of 29 months, reduced by three months for totality.Gendall J upheld the sentence on appeal.11 Goodman v R [2016] NZCA 64.12 Bolton v Police [2016] NZHC 1297.(c) Soper v Police:13 Mr Soper had just been released from prison foroffending against same victim, his partner. He was convicted ofcommon assault and male assaults female. During the first assault, MrSoper straddled the victim, and pushed on her chest (she was injured attime). During the second assault, two days later, he straddled the victimand punched her in the face three times. The District Court adoptedstart points of 4 months on the common assault and 15 months on themale assaults female charge. The High Court allowed the appeal. TheCourt considered a start point of 12 months on the male assaults femalecharge was more appropriate, with a three-month uplift to reflecttotality.(d) Brewer J summarised the Court's approach to male assaults femaleoffending in Wati v R:14[18] As to the male assaults female charges, I note there is notariff for this offence. For single offences, a sentence ofimprisonment can range from two months to 12 months'imprisonment. It is never easy to fix a starting point in casesinvolving domestic violence because the circumstances ofcases vary so widely and sentencing Judges must work withina range available to them for multiple offences. In general,Courts have imposed sentences of around two to three years'imprisonment on charges involving domestic violence. Oneof the factors taken into account when fixing a starting pointis the period over which the violence was inflicted.[33] Given the above, I consider a start point of around 16 months, if not more,would have been appropriate – this case is more serious than the assaults in Soper. Iaccept there is less violence than Goodman (as reflected in the fact Mr Duff's mostserious assault charge is male assaults female rather than assault with intent), and thisoffending relates to only one episode rather than the multiple episodes in Bolton.Nonetheless, Mr Duff punched his partner to the head, pushed her against a wall, andthe offending gave rise to a greater potential for more serious harm, given Mr Duffdrove a car directly at his partner's aunt and had a knife. Also, the offending isaggravated by children being present, with one of them placed at particular risk by13 Soper v Police [2014] NZHC 2536.14 Wati v R [2015] NZHC 2064.being in the vehicle during Mr Duff's dangerous driving. It also occurred in thecontext of breaching a protection order. Viewed in this context, I consider the startpoint adopted by the Judge for the 23 June offending was, if anything, somewhatgenerous.[34] From a 16 month available start point, an uplift is warranted for the otherepisodes of domestic violence/protection order type offending. Although it is notnecessarily wrong to impose cumulative sentences for each episode, I consider theoffending is of a similar kind and part of a connected series of offences so as to warrantan uplift rather than separate cumulative sentences.15 In other words, it is part of acontinued pattern of violence/intimidation against family members – although thereare multiple victims, there is some crossover between the incidents (for example, apattern of offending against his children on 17 May, 17 June, 23 June; similarly boththe 17 June and 23 June offending involved Mr Duff's partner and her extendedfamily).[35] An uplift of 12 months is appropriate to cover the remainder of the violenceoffending. While this may seem stern, I note all the offending occurred in breach of aCourt order (whether a protection order or a trespass order). The 16 June offending(against Mr Duff's sister) involved repeated punches to the head.[36] There is no issue taken on the appeal with the 12 month cumulative sentencefor the burglary.[37] Taking a start point of 16 months on the 23 June offending, uplifting by12 months for the other violence offending, then adding a 12 month cumulativesentence for burglary, produces a start point of 40 months, or three years four months'imprisonment.[38] Turning then to consider totality, a small reduction may be warranted to ensurethat the cumulative burglary sentence does not produce a total period of imprisonmentout of all proportion to the gravity of the overall offending.16 In my view, any such15 Sentencing Act 2002, s 84.16 Section 85(2).reduction should be relatively limited, because in fixing a 12 month uplift for thebalance of the offending (i.e. other than that on 23 June), some allowance for totalityhas already been made. A reduction of three months would have been appropriate.This brings the sentence to three years, one month.[39] Once he had fixed the start point, the Judge uplifted the sentence by fourmonths to reflect previous convictions, and then discounted by two months forremorse. I do not consider these inappropriate (particularly given Mr Duff's extensivehistory of similar offending), and a separate discount for remorse could be argued tobe generous. By applying this uplift and discount, a sentence of three years, threemonths' imprisonment is reached. Applying a 25 per cent guilty plea discount(rounded up to 10 months) produces an end sentence of 29 months' imprisonment, ortwo years, five months.[40] Standing back and looking at this sentence against the overall offending, Iconsider this appropriate. A much lesser sentence (approaching the territory in whichhome detention could be considered), as argued for by Mr Forster, would in my view,be inadequate. Putting aside the burglary, the remaining offending demonstrates adisturbing pattern of offending by Mr Duff against family members, and in particularhis partner, a willingness to involve his children in that offending, and a disregard forcourt orders.[41] I nonetheless record the comments by Mr Duff recorded in the PAC report thathe wants to try to address the causes of his offending, which appears to includesubstance abuse, gives some hope for his rehabilitative prospects. Presumably MrDuff will be willing and able to attend any relevant programmes while he is servinghis sentence.Result[42] While the end sentence I have arrived at is not very significantly less than thatadopted by the Judge, it is more than what might be considered "tinkering".[43] The appeal is accordingly allowed. The sentence of two years, nine months'imprisonment is quashed, and replaced with a sentence of two years, five months'imprisonment. This is to be allocated across the various charges as follows:(a) On the 23 June offending:(i) On the breach of protection order charge, one year, nine months'imprisonment;(ii) On the male assaults female charge, eight months'imprisonment, to be served concurrently;(iii) On the possession of an offensive weapon charge, six months'imprisonment, to be served concurrently;(iv) On the wilful damage charge, one month imprisonment, to beserved concurrently; and(v) On the driving dangerously charge, one month imprisonment,to be served concurrently. Mr Duff is disqualified from holdingor obtaining a driver license for 6 months.(b) On the 17 June offending:(i) On the breach of protection order charge, eight months'imprisonment, to be served concurrently; and(ii) On the male assaults female charge, six months' imprisonment,to be served concurrently.(c) On the 16 June offending:(i) On the assault on a person in a family relationship charge, eightmonths' imprisonment, to be served concurrently; and(ii) On the wilful trespass charge, one month imprisonment, to beserved concurrently.(d) On the 17 May breach of protection order charge, six months'imprisonment, to be served concurrently.(e) On the burglary charge, eight months' imprisonment, to be servedcumulatively.____________________Fitzgerald J