PRIDAY v NEW ZEALAND POLICE [2023] NZHC 3107

PRIDAY v NEW ZEALAND POLICE [2023] NZHC 3107 [3 November 2023]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2023-454-18[2023] NZHC 3107BETWEEN PAUL PRIDAYAppellantAND NEW ZEALAND POLICERespondentHearing: 18 October 2023Appearances: J A Younger for the AppellantG M Stone for the RespondentJudgment: 3 November 2023JUDGMENT OF PALMER JSolicitorsJ A Younger, Palmerston NorthBVA The Practice, Palmerston NorthWhat happened?[1] Mr Paul Priday, aged 48, and the complainant have had a 13-year on and offrelationship. They have a child together. There have been 32 family harm incidentsrecorded between the two of them before January 2023. Family protection orders wereissued against Mr Priday in favour of the complainant in 2012 and 2020.[2] In the early hours of 1 January 2023, Mr Paul Priday returned to the tent hewas sharing with the complainant, at a campground. He was intoxicated. Thecomplainant decided to leave. Mr Priday got upset with her, grabbed her, and theystruggled and fell onto a bed with Mr Priday on top of her. She screamed. He pinnedher down. He punched her in the face and body and held his hand over her nose andmouth to stop her yelling. She sustained cuts and bruises to her face and swelling toher lower jaw. For this, Mr Priday has pleaded guilty to assault on a person in a familyrelationship and breach of a protection order.1 Afterwards, he told her he thought heshould kill her this time. She managed to get out of the tent and away from Mr Priday.[3] The next day the complainant ended her relationship with Mr Priday. Thecomplainant received texts from Mr Priday and, on 6 January 2023, blocked hisnumber. But he continued to contact her, in breach of the protection order:(a) On 28 and 29 January 2023 he left voice messages for her, whichincluded messages such as "[y]our fucken dead slut " and " [y]ourdead mother fucker". For this he has pleaded guilty to a second breachof a protection order.(b) On 10 February 2023, he left two messages threatening to 'get her' andthat she's "fucken dead". For this, he has pleaded guilty to a thirdbreach of a protection order.(c) On 12 February 2023, Mr Priday texted the complainant three times,calling her a slut and saying she will die. For this, he has pleaded guiltyto a fourth breach of a protection order.1 Crimes Act 1961, s 194A; and Family Violence Act 2018, ss 9, 90(a) and 112(1)(a). Maximumpenalties of two years' imprisonment and three years' imprisonment respectively.(d) On 13 February 2023, Mr Priday went to the complainant's home at2.45 am and stood in her backyard. A couple of hours later he left avoice message saying, "you're dead cunt and I mean it". For this, hehas pleaded guilty to a fifth breach of a protection order.(e) All of the threats Mr Priday made to the complainant about killing herfrom 1 January to 13 February 2023 gave rise to a representative chargeof threatening to kill, to which he has pleaded guilty.2[4] On 24 July 2023, in the District Court at Palmerston North, Judge J F Mosssentenced Mr Priday to 25 and a half months' imprisonment:3(a) The Judge set a global starting point for all the offending of three years'imprisonment, referring to: the seriousness of the assault and threats tokill; the high risk to the complainant; the number of breaches of theprotection order; the detention of the complainant in a tent; and punchesto the head.(b) The Judge uplifted the starting point by six months for Mr Priday'sprevious offending, including nine convictions for breaching protectionorders, four male assaults female offences, one assault with a weapon,one threat to kill, and one wilful damage, as well as the fact that thethreat to kill occurred while he was on, or just after he was on, bail.4(c) The Judge discounted the sentence by 25 per cent for an early guiltyplea and by a further 20 per cent for Mr Priday's deprived and abusiveupbringing, his drug and alcohol abuse, his neurological impairments,his participation in restorative justice, and for showing genuine remorsefor his offending.5 Much of this was based on the report received unders 27 of the Sentencing Act 2002.2 Crimes Act, s 306. Maximum penalty of seven years' imprisonment.3 New Zealand Police v Priday [2023] NZDC 15438 at [11].4 At [7].5 At [8] and [11].[5] Mr Priday appeals. Ms Younger, for Mr Priday, submits the end sentence wasmanifestly excessive for five specified reasons. Mr Stone, for the Police, submits itwas not and disputes four of the reasons. I deal with each of the points in turn.Should the appeal be allowed?[6] Under s 250(2) of the Criminal Procedure Act 2011, I must allow the appeal ifI am satisfied that there is an error in the sentence imposed on conviction and adifferent sentence should be imposed. I must be satisfied that the sentence ismanifestly excessive.6 The focus is on whether the end sentence imposed by the Judgewas within range.71 Starting point[7] First, Ms Younger submits the starting point was too high, based on comparablecases,8 and taking into account Mr Priday's intoxication, mental state, and background.Similar cases should be dealt with in a similar way. She submits the 1 Januaryoffending deserves a starting point of 12 to 18 months, and the other four breaches ofprotection orders justify an uplift of 12 months, leading to a global starting point oftwo to two and a half years.[8] Mr Stone submits three years is within range as an appropriate starting pointhaving regard to the circumstances here and in comparison with other cases. A startingpoint of 18 months is justified by the 1 January offending alone. The breaches of theprotection order contain seriously aggravating features, including going to thecomplainant's house at night which is psychological abuse.[9] I agree with the Crown's submissions. The offences in the cases cited by MsYounger were less serious than those here. The assault here involved attacks to thehead, physical injuries, and an attempt to detain the complainant. Looking at thefeatures of the assault, and the comparable cases cited by both parties, I agree with theCrown that the assault alone would have justified an 18-month starting point. I also6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], and [35].7 Ripia v R [2011] NZCA 101 at [15].8 Smart v Police [2016] NZHC 3092; and Mitchell v R [2016] NZCA 299.agree a 12-month starting point would have been well justified for threatening to killgiven the pre-meditation, the link to actual violence, and the frequency of the threats.9A 12-month starting point would also have been justified for the breaches of protectionorder, which involved violence or threatened violence.10 Intoxication is not amitigating factor.11 And background is examined later in the sentencing process. Theglobal starting point of three years was within the range available to the Judge.2 Double-counting[10] Second, Ms Younger says the Judge double-counted the previous convictionsin setting the starting point and then applying the uplift.[11] Mr Stone submits that, as she should, the Judge considered previous breachesin assessing the starting point for the new breaches of protection order. She identifiedthose offences separately from the violent offending.[12] The Judge's reasoning was sequenced as follows:(a) She noted there had been a number of threats to kill, over a few weeks.12(b) She considered the threat to kill contained in the breach of protectionorder was extremely serious.13(c) She noted that Mr Priday had faced nine breaches of protection ordersand now faced five additional breaches. She said the five breaches, thesingle threat to kill, and the nasty hiding "up the starting point".14(d) She stated, "before I consider the previous offending, I consider thestarting point is three years".159 Haynes v Police [2022] NZHC 950.10 Morris-Stewart v Police [2016] NZHC 1030.11 Sentencing Act 2002, s 9(3).12 New Zealand Police v Priday, above n 3, at [3].13 At [4].14 At [5].15 At [6].(e) She then considered the previous offending.16[13] Understood in this context, I do not consider the Judge double-counted thebreaches of protection order. She referred to the previous breaches as a way ofintroducing, and assessing, the current breaches. But she set a starting point for thecurrent breaches before considering the previous offending.3 There was no offending on bail[14] Third, Ms Younger submits there was no offending while on bail. Mr Stonerecognises this was an error, as do I. But he submits the uplift of six months, for thisand Mr Priday's previous convictions, while stern, was not manifestly excessive. Iagree with that too. An uplift is warranted for previous offending which indicatessome tendency to commit the particular type of offence which is before the court.17An uplift is a way to deter an offender from continuing the pattern of offending.18 Theuplift must not be disproportionate, taking into account such factors as the number ofoffences, their seriousness, the sentences previously imposed, and the time since thelast conviction. Here, the most recent sentence for Mr Priday's family violence wastwo and a half years' imprisonment in January 2020. While stern, I do not considerthe uplift of six months, or 16 per cent, is outside the range available to the Judge.4 Discounts[15] Fourth, Ms Younger submits the Judge did not allow a sufficient discount forMr Priday's mental health, rehabilitation efforts, remorse, restorative justice, andcultural factors. She submits the following discrete discounts should have been given:20 per cent for his many background and cultural factors; and 10 per cent for his stepstowards rehabilitation, mental health, remorse, and restorative justice. She submitsthe Judge did not take the s 27 report into account. She relies on Pene v R, where therewas insight, rehabilitation efforts, an attempted restorative justice conference, andRadich J increased the discount from 15 per cent to 20 per cent for background factors.and discounted a further five per cent for efforts at rehabilitation and remorse.1916 At [7].17 Jones v R [2021] NZCA 402 at [33] citing Beckham v R [2012] NZCA 290 at [84]–[85].18 Beckham v R, above n 17, at [84].19 Pene v R [2023] NZHC 1234 at [31]–[32].Ms Younger also relies on Kolofale v R, where a 20 per cent discount for backgroundand cultural factors was upheld and there was an additional seven per cent discount.20[16] Mr Stone submits that Kolofale v R and Pene v R can be distinguished fromthis case. While Mr Priday's reflection is commendable, he took no concrete stepstowards rehabilitation other than requesting recommencement of ACC counselling,which he has not commenced. The s 27 report was comprehensive, the Courtconsidered it, and the 20 per cent discount is appropriate.[17] I agree that giving discrete discounts for different factors is best practice, in theinterests of transparency and in acknowledging the importance of remorse andrehabilitation. But Ms Younger's real point is that the amount of the overall discountis wrong. The Judge considered all the relevant factors, with reference to the reportsbefore her.21 Rehabilitative steps taken after sentencing were not before the Judge.The 20 per cent total discount was within the range available to the Judge. Forexample, that was the total discount given by the Supreme Court to Mr Berkland for adeprived background, addiction, and efforts at rehabilitation.22 There is a limit towhich other cases of discounts are helpful because of the different personalcircumstances in each case. I do not consider the discounts given for differentcircumstances in Kolofale v R or Pene v R cast doubt on this sentence.5 Period on EM bail[18] Fifth, Ms Younger submits the Judge erred in not making any adjustment forthe period from 12 June 2023 to 19 July 2023 which Mr Priday spent onelectronically-monitored (EM) bail at his father's house who was rapidly decliningafter a stroke. Mr Priday complied with the conditions. However, the occupantswithdrew their consent due to a strained relationship with his stepmother, and MrPriday voluntarily returned to prison.20 R v Kolofale [2022] NZCA 74.21 New Zealand Police v Priday, above n 3, at [8]–[9] and [11].22 See Berkland v R [2022] NZSC 143 at [162]–[163].[19] Mr Stone submits that he could not take issue with some credit being given forthe four and half weeks spent on EM bail. But it is up to the Court to assess and doesnot make a material difference.[20] I do not consider the Judge erred in not giving a discount for this period. Adiscount is not always given for time on EM bail.23 The Court considered it. It waswithin the Judge's discretion not to give a discount for such a short time.Result[21] Overall, while there was an error in the District Court sentencing in respect ofoffending while on bail, its effect was not material. The starting points, uplifts, anddiscounts were all available to the Judge. The sentence was consistent with the overalltotality of the offending. The sentence was not manifestly excessive. I dismiss theappeal.Palmer J23 Sentencing Act, ss 9(2)(h) and 9(3A); and Longman v Police [2017] NZHC 2928 at [7] and[12]-[13]; and Paora v R [2021] NZCA 559 at [50]–[52].