JACKSON v NEW ZEALAND POLICE [2022] NZHC 3300

JACKSON v NEW ZEALAND POLICE [2022] NZHC 3300 [8 December 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-178[2022] NZHC 3300BETWEEN OWEN ANTHONY JACKSONAppellantAND NEW ZEALAND POLICE ANDDEPARTMENT OF CORRECTIONSRespondentsHearing: 7 December 2022Appearances: K J May for AppellantG E R Alloway for RespondentsJudgment: 8 December 2022JUDGMENT OF MANDER JThis judgment was delivered by me on 8 December 2022 at 2.15 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Owen Jackson was sentenced in the Christchurch District Court1 to 15 months'imprisonment on charges of conversion of a motor vehicle,2 assault on a person in afamily relationship,3 threatening to kill,4 possession of a pipe for methamphetamineuse,5 and breach of release conditions.6[2] Mr Jackson appeals his sentence on the grounds the Judge failed to recognisethe different charges faced at sentencing compared to those upon which he wasprovided with a sentence indication, and that credit should have been afforded to himto reflect his disadvantaged background.Facts[3] Mr Jackson was released from prison in April 2022. He failed to report to hisprobation officer on 20 May of that year. This gave rise to the breach of releaseconditions charge.[4] Shortly after being released from prison, Mr Jackson was allowed to borrow avehicle. In mid-July, he was asked to return this vehicle but did not do so. That failureled to the conversion charge.[5] On 29 July 2022, Mr Jackson visited his mother's workplace and found hersitting in her car. He opened the vehicle's passenger door and leaned inside. He beganarguing with his mother and spat in her face. When she said she was calling the Police,Mr Jackson threatened to kill her and her boyfriend, before snatching her phone awayand grabbing her by the clothing around her neck. During this incident the victim'sglasses were damaged, and she suffered bruising and swelling to her eye.[6] When Mr Jackson was arrested a day later, Police found a glassmethamphetamine pipe in his vehicle.1 New Zealand Police v Jackson [2022] NZDC 22058.2 Crimes Act 1961, s 226; maximum penalty seven years' imprisonment.3 Crimes Act, s 194A(1); maximum penalty two years' imprisonment.4 Crimes Act, s 306; maximum penalty seven years' imprisonment.5 Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one year imprisonment and/or afine not exceeding $500.6 Parole Act 2002, s 71(1); maximum penalty one year imprisonment and/or a fine not exceeding$2,000.Principles on appeal[7] An appeal against sentence may only be allowed by this Court if it is satisfiedthere has been an error in the imposition of the sentence and that a different sentenceshould be imposed.7 The focus is not on the process by which the sentence wasreached but on the correctness of the end result.8District Court sentencing[8] Mr Jackson received a brief sentence indication of an end sentence of15 months' imprisonment. The indication was relatively impromptu and informal, theJudge recognising that it would otherwise be some months before a sentence indicationcould be provided to Mr Jackson. In the period between being provided thisindication, and the sentencing decision, charges of breaching release conditions andintimidation were withdrawn.[9] At sentencing, Judge Couch set a starting point of eight months' imprisonmentfor the charges relating to the assault and threatening of Mr Jackson's mother. Thevehicle charge attracted a five-month starting point, and the breach of releaseconditions a four-month starting point. This resulted in a global starting point of17 months' imprisonment, which the Judge considered was appropriate on a totalitybasis.[10] To reflect Mr Jackson's history of family violence and property offending, theJudge imposed a 10 per cent uplift, about which no complaint is made on appeal. Thedelayed guilty pleas attracted a 20 per cent discount. This resulted in an end sentenceof 15 months' imprisonment. Reparation of $400 was also ordered in respect of themotor vehicle.The appeal[11] On behalf of Mr Jackson, Mrs May submitted the sentencing Judge hadoverlooked that two charges had been withdrawn after the sentence indication had7 Criminal Procedure Act, ss 250(2) and 250(3).8 Ripia v R [2011] NZCA 101 at [15].been provided, which reduced the seriousness of the overall offending and should havebeen reflected in the sentence ultimately imposed. It was also suggested that edits tothe summary of facts had resulted in some particulars relating to the assault being lessserious. However, the main focus of the appeal centred on additional information,contained in letters provided by Mr Jackson, his lawyer for his abuse in state careclaim, and a psychological treatment report which it was submitted had justified anadditional discount. This information had not been made available to the Court for thepurpose of the sentence indication but was before the Court at sentencing. Mrs Maysubmitted the Judge did not address this material and may have inadvertentlyoverlooked its relevance and mitigatory effect.[12] Mr Jackson suffered physical, sexual and psychological abuse while in the careof both his family and the state. This abuse was submitted by Mrs May to have a clearcausal nexus with the offending against Mr Jackson's mother, such that a discount waswarranted.Analysis[13] The issues on the appeal are relatively confined. While Mrs May did submitthe charges that had been withdrawn ought to have reduced the seriousness of theoffending for the purposes of sentencing, no material issue was taken with any of thestarting points adopted by the sentencing Judge. Because of the range ofcircumstances in which family relationship assault can occur, making comparisonswith other cases is not straightforward. The exercise is further complicated in thecircumstances of this case by Mr Jackson's additional offending. However, it is notapparent that the Judge's starting point was otherwise but well within range whencompared with the approach taken in some cases.9 Having regard to the very informalsentence indication exercise and the relatively minor nature of the two charges thatwere subsequently dropped, I do not consider their withdrawal materially affected thecorrectness of the starting points adopted by the Judge. No complaint is made thatMr Jackson was misled nor any suggestion that he wished to revisit his pleas.9 Woods v Police [2019] NZHC 335; Barlao v New Zealand Police [2021] NZHC 1828; and R vWerahiko [2008] NZCA 24.[14] The primary issue on the appeal was whether greater recognition should havebeen given to the information concerning Mr Jackson's abuse while in family and statecare as a youth. This information is sourced from Mr Jackson himself in a letterprovided to the sentencing Judge, a letter of Ms Sonja Cooper who acts for Mr Jacksonin his abuse claim against the Ministry of Social Development, and a psychologicaltreatment report prepared by Dr Heather Gordon.[15] Ms Cooper's letter is the most informative. It references CYFS records, anddetails how Mr Jackson suffered neglect and regular physical assaults as well as otherbullying behaviours such as verbal humiliation at the hands of his parents. WhenMr Jackson left home at 15, it was recommended he be placed in a youth programmebased on Great Barrier Island. Ms Cooper refers to serious physical, psychologicaland sexual abuse that occurred when Mr Jackson participated in this programme. Shecontends this traumatic experience caused Mr Jackson anxiety, depression,post-traumatic stress disorder , and caused him to self-medicate with substances andto have intense trust issues.[16] Mr Jackson's letter outlines maltreatment during his childhood and a variety ofemotional challenges. Further, Dr Gordon's report makes note of childhood abuse andcorroborates the information around the effects of this abuse as it relates to anxiety,trust issues (particularly in relation to authority figures), and triggers that give rise toaggressive behaviour.[17] An offender's background may justify a reduction in sentence where there is acausal nexus between relevant elements of the background and the offending. It is notnecessary for the Court to be satisfied these features of an offender's pastcircumstances are a proximate cause of the offending.10 What is required is a broad,holistic approach.11 The assessment should involve an overall examination of howthose personal circumstances may have contributed to an offender's culpability or totheir offending.1210 Carr v R [2020] NZCA 357 at [64].11 Waikato-Tuhega v R [2021] NZCA 503.12 At [51].[18] Discounts for an offender's upbringing and personal background are highlyfact-specific.13 Here, Mr Jackson's letter indicates the offending in relation to hismother was precipitated by a wish to confront her about the abuse he suffered as achild. Mr Jackson reported that his father had died only months beforehand. He sayshe had been deceived by his mother and sister concerning funeral arrangements, andwas motivated on the spur of the moment to confront his mother about childhoodabuse. Because of the self-reported nature of this account and lack of corroborativeevidence, care is required before placing too much weight on this account.Nevertheless, there appears to be a causal link between Mr Jackson's abuse at thehands of his parents, consequences of this abuse, such as his PTSD and his struggle toregulate his emotions when triggered, and the assault on his mother and theaccompanying threats.[19] Arguably, there is an element of impairment of choice giving rise to reducedculpability. Mr Jackson is reported to have suffered extensive trauma, with which hecontinues to struggle. This appears to be linked to the violence he used on thisoccasion. There is obviously less of a nexus evident in relation to the other offending.[20] The Crown accepts there is a causal connection between the childhood abusesuffered by Mr Jackson and the family violence offending and that his personalbackground should have been taken into account and acknowledged with anappropriate discount. However, it was argued the starting point adopted by thesentencing Judge for both the assault and the threatening to kill charges, and theunlawful taking of vehicle charge, were generous.14 It was submitted the sentence asa whole was not manifestly excessive.Decision[21] The starting points for family violence and charges involving the conversionof vehicles will vary greatly depending on the individual circumstances of theparticular case and care is required before reliance can be placed on one ortwo particular sentencing decisions. In this instance, the Crown relied on sentencing13 Whittaker v R [2020] NZCA 241 at [51].14 Auckram v Police [2022] NZHC 1446; O'Sullivan v Police [2015] NZHC 2032; andShufflebotham v Police [2015] NZHC 3114.decisions that involved considerably more serious episodes of family violence thatwere more prolonged and involved greater danger. As I have earlier found, the startingpoints for the unlawful use of a vehicle and the family violence appear unimpeachable,but I am not confident they could necessarily be categorised as generous.[22] I consider it was an error not to take into account the mitigating effect ofMr Jackson's traumatic upbringing, given the accepted linkage with his use ofviolence. I hasten to add that Mr Jackson's personal background does not excuse hisconduct, but, as properly acknowledged by Mr Alloway on behalf of the Crown, it isa factor which ought to have been taken into account in assessing Mr Jackson's overallculpability for that particular offending. In the circumstances, a 15 per cent discountwould have been appropriate. That results in a sentence of 13 months' imprisonment.The adjustment of two months is relatively small, but it represents a reduction greaterthan 10 per cent of the overall sentence and does not therefore amount to tinkering.[23] Despite the short-term sentence imposed, it is not apparent that a sentence ofhome detention was available to Mr Jackson, and there is no basis upon which toexplore that possibility in the absence of information regarding the technicalrequirements of such a sentence.15Result[24] The appeal is allowed. The sentence of 15 months' imprisonment imposed inrespect of the unlawfully taking a motor vehicle, and threatening to kill charge isquashed and substituted with a sentence of 13 months' imprisonment. All othersentences and orders imposed in respect of the other charges remain unaltered as dothe release conditions imposed by the District Court Judge.Solicitors:Crown Solicitor, ChristchurchCopy To:K May, Barrister, Christchurch15 Sentencing Act 2002, s 80A.