RUSSELL v THE NEW ZEALAND POLICE [2023] NZHC 631

RUSSELL v THE NEW ZEALAND POLICE [2023] NZHC 631 [27 March 2023]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2023-441-2[2023] NZHC 631BETWEEN PHILLIP MARAU GLANVILLERUSSELLAppellantAND THE NEW ZEALAND POLICERespondentHearing: 8 March 2023 (via AVL)Appearances: E J Forster for AppellantF E Cleary for RespondentJudgment: 27 March 2023JUDGMENT OF McQUEEN J[1] On 10 January 2023, Phillip Russell (the appellant) was sentenced byJudge Collins in the Hastings District Court on two charges to which he pleadedguilty.1 These charges were:(a) breach of a protection order;2 and(b) breach of release conditions.3[2] Mr Russell was sentenced to 12 months' imprisonment for the breach of aprotection order charge, and to a concurrent term of four months' imprisonment forthe breach of release conditions. He now appeals on the ground that the sentenceimposed was manifestly excessive by way of the starting point and excessive uplifts.1 Police v Russell [2023] NZDC 250.2 Family Violence Act 2018, ss 90(b) and 112(1)(a); maximum penalty three years' imprisonment.3 Sentencing Act 2002, s 96(1); maximum penalty one year's imprisonment or $2,000 fine.[3] The police oppose the appeal, and say that the end sentence was within rangeand appropriate in the specific circumstances of the case.[4] For the reasons below, I consider that the appeal should be dismissed.BackgroundThe offending[5] Mr Russell and the victim were in a relationship from the late 1990's, butseparated about eleven years ago. They have an adult child together. They have beenthe subject of multiple family harm investigations. On 29 November 2011, a finalprotection order was issued by the Hastings District Court. The respondent wasMr Russell and the protected person the victim in the present case. The protectionorder was served on Mr Russell on 7 December 2011.[6] In July 2022, Mr Russell was sentenced to 18 months' imprisonment forconvictions on five charges of breaching a protection order and one charge ofassaulting a police officer. Upon his release he was subject to release conditions whichwere to apply for a period of 15 months. One of these conditions was that he notcontact the victim.[7] On 15 November 2022, Mr Russell was released from Auckland Men's Prison.He flew to Napier and made his way to Hastings. At approximately 5:20 pm on thesame day, Mr Russell used a phone at a petrol station to make five calls to the victim,who did not answer the phone, as the number was not known to her. The victimcontacted the police as she was scared that it was the defendant trying to call her.Police enquiries traced the phone number back to the petrol station where Mr Russellwas seen on CCTV using the phone to call the victim. He was located a short timelater and arrested.[8] Mr Russell's explanation to the police was that he had called the victim bymistake. His explanation to the writer of the pre-sentence report (PAC report) was thathe tried to contact his son but when that was unsuccessful he tried to call the victim.This was in an attempt to pick up his car so that he could drive to Wellington to seehis sick father.PAC report[9] The PAC report writer recommended a sentence of imprisonment. They notedthat Mr Russell remains adamant that he wants to return to the property where thevictim resides despite there being evidence that the victim bought his share in theproperty. That is opposed by the victim, who has been a victim of violence inflictedby Mr Russell for a period of ten years. The victim wishes to focus on her ownwellbeing and that of her children.[10] The report writer highlighted a positive relationship that Mr Russell has with aforensic court liaison nurse, who has been encouraging him to consider alternativeways of thinking, which is positive as Mr Russell generally refuses to engage withCorrections staff.[11] The report writer stated:Prison sentences have failed to provide any deterrent impact for Mr Russell.If there is to be any hope that Mr Russell's behaviour will moderate on-goingwork needs to be done with Corrections staff to encourage Mr Russell toconsider other release options and a robust release plan needs to be in placeprior to any release. While a custodial sentence appears to be the only optionat this point in time the Court may wish to consider granting Mr Russell leaveto apply for Home Detention.[12] In other advice from the Department of Corrections it was also said that:Mr Russell is assessed as posing a high likelihood of further offending and ahigh risk of harm to others, particularly towards [the victim]. With theextensive history of family harm incidents, it is evident that there is imminentrisk to his victim when he is out in the community without the appropriateconditions to mitigate his risks. Mr Russell has not been deterred from havingcontact with [the victim] despite the non-association and the existence of theProtection Order.Police have stated their concerns for the victim's safety, advising they are "ofthe belief that given his behaviour over the years, his declining mental health,anger for any form of Justice department, Police, Corrections and his fixationon [the victim] and the land, that if we do not do all we can to protect her thatthis sad case will likely end with a murder/suicide type situation".Victim impact statement[13] The victim has provided a statement which confirms that:(a) when she and Mr Russell separated in 2005, she arranged a separationagreement, pursuant to which she made a full and final payment toMr Russell for their assets, including the property which she currentlyresides at;(b) Mr Russell has no legal or ancestral right to the property;(c) since the protection order was made final, Mr Russell has been in andout of prison for offending as a result of breaches of the protectionorder; and(d) she does not want Mr Russell at her address and is extremely concernedfor herself and their son's safety every time he is released.[14] She states:This particular incident will appear relatively minor to the courts, but I cannotstress enough the emotional and psychological pressure these incidents haveon my son and myself.I feel really let down by the courts as nobody ever listens to me and myconcerns and we seem to just be repeating the same process for the last15 years. I do not want any further contact from Phil, [and I] do not want himat my address. I do not know what else can be done but I feel alone andextremely vulnerable and am looking for any help that the courts can offer.District Court decision[15] The District Court Judge highlighted Mr Russell's criminal history, stating:[4] The real difficulty here is that Mr Russell has 32 previous convictionsfor breach of a protection order, however 27 of those relate to this victim. Sothe first five convictions for breach of protection order relate to another victimback in the 1990s or earlier and before that there is a breach of what wasknown then as a breach of a non-molestation order and there are eightconvictions for that. So effectively there are 40 convictions for offending ofthis nature. This offending is now the 28th against this victim.[5] In addition, Mr Russell has 11 convictions of assault or other violencein a family violence context. In relation to this victim, they arise from 2012onwards. On 22 August 2012 he was sentenced to imprisonment forassault[and] assault with a weapon, 4 February 2013 male assaults female,14 March 2013 threatening to kill, together with breaches of protection orderat that time. On 15 January 2015 he was sentenced to assault on a child,injuring with intent to injure as well, for which he received terms ofimprisonment.[6] In addition Mr Russell has 15 convictions for breaches of releaseconditions since that time. So that shows that not only would he not complywith the protection order conditions imposed but he will not comply withrelease conditions either.[16] The Judge considered that Mr Russell holds a "delusional view that his formerpartner wants to reconcile, that is contrary to every indication before the Court".4 Heconsidered that protection of the victim was a particularly important part of thesentencing exercise.5[17] The Judge adopted the approach set out by Brewer J in Crean v Police.6 Thatapproach recognises that while the orthodox sentencing approach factors previousconvictions in at the second step:7the breaching of protection orders is one of the types of offending whereprior convictions are integral to the assessment of the gravity of the indexoffending.8 This is because a history of previous breaches is directly relevantto the assessment of the gravity of the most recent offending and to theculpability of the offender.9[18] The Judge stated:This offending does not call for the orthodox approach. At the heart of theoffending, or the heart of the criminality, in intimate partner violence, orformer intimate partner violence, is the coercion and control brought about byfear. Here the ongoing psychological message to a woman who has been avictim of violence is that that message is: "I know where you are and I canreach you." As I say here, that is obvious. The most serious part, Mr Russell,of your offending is the sheer persistence and that makes it serious, actuallyreally serious. Persistence in both breach of the protection order and breach ofthe release conditions. For the purposes and principles of sentencing that applytoday, holding you accountable and protecting the victim have to be given fullrecognition.4 Police v Russell, above n 1, at [7] and [14].5 At [8].6 Crean v Police [2015] NZHC 3203.7 At [16(b)].8 Tetau v Police [2015] NZHC 1284 at [26].9 Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498 at [12]–[14] and [17].[19] The Judge considered that the appropriate starting point was one of 15 months'imprisonment, and that if another offence were before him in the future, he would haveno hesitation in adopting the maximum.[20] The final sentence was 12 months' imprisonment for the breach of theprotection order, and a further concurrent term of four months' imprisonment for thebreach of release conditions. Although the Judge did not say so explicitly, it is clearthat his Honour applied a guilty plea discount of 20 per cent. Mr Russell was alsomade subject to standard and special release conditions for six months after hissentence expiry date, as recommended in the pre-sentence report.Approach to appeal[21] The appeal is brought under ss 244 and 250 of the Criminal Procedure Act2011. Under s 250 of the Criminal Procedure Act, the appeal court must allow theappeal if satisfied that there is an error in the sentence imposed on conviction and adifferent sentence should be imposed. The Court must dismiss the appeal in any othercase.[22] Section 250(2) was not intended to change the previous approach taken by thecourts under the now repealed Summary Proceedings Act which applied where thesentence was "clearly excessive or inadequate or inappropriate".10 Further, despites 250 making no express reference to a requirement that a sentence be "manifestlyexcessive", this principle is "well-ingrained" in the court's approach to sentenceappeals. An appeal court will not interfere with the end sentence if the end sentence iswithin range.11 The focus is on the end sentence and not the process adopted to reachthat end sentence.Analysis[23] Mr Forster, on behalf of Mr Russell, submits that:10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] and [27].11 Ripia v R [2011] NZCA 101 at [15].(a) the Judge's decision to depart from the approach to sentencing set outin R v Taueki and Moses v R was flawed;12(b) by comparison with other similar cases, the sentence was manifestlyexcessive; and(c) insufficient discount was given for the early guilty plea.Departure from orthodox approach[24] Mr Forster says that the Judge's decision to depart from the orthodoxsentencing approach was flawed as there was no balancing of any countervailingfactual factors in the assessment of the offending. He submits that Mr Russell callingthe victim was not a further episode in the cycle of abuse, but rather Mr Russellattempting to get himself out of a desperate situation. He submits that Mr Russell didnot talk to the victim, left no messages, and had a 'good reason' for contacting her,which makes the present case distinguishable from more serious offending, such as inMitchell v R.13 Mr Forster submits also that the Judge did not balance thecountervailing personal factors reported in the PAC report. Mr Forster submits thatdeparting from orthodox sentencing principles should be strictly guarded againstbecause a departure is a significant step that removes the transparency anddemonstrability of sentencing.[25] Ms Cleary for the police submits that the Judge did not err by utilising what isa standard sentencing approach for protection orders where there are a number ofprevious breaches, which has been repeatedly endorsed by the courts. Ms Cleary saysthat none of the appellate cases which endorse this approach have made it contingenton the index offending reaching a certain level of seriousness. Rather, the prioroffending increases the gravity of the index offending. In addition, Ms Cleary says thatthere was no double counting of the previous convictions, as no uplift was imposedfrom the starting point.12 R v Taueki [2005] 3 NZLR 372 (CA); Moses v R [2020] NZCA 296.13 Mitchell v R [2022] NZCA 159; see also Mitchell v R [2022] NZSC 89.[26] I do not see merit in Mr Forster's submissions. While I accept that whatMr Russell actually did in the present circumstances represents a breach of aprotection order of a typically minor nature, the point is that Mr Russell's actionscannot be viewed in isolation. Regardless of what his intentions may have been,Mr Russell breached the protection order for the twenty-eighth time, mere hours afterbeing released from prison for similar offending. This was clearly a situation where itwas available and appropriate for the Judge to apply the approach set out in Crean vPolice. The Supreme Court has described this sentencing approach (although withoutreferencing Crean) as "largely orthodox".14 The Judge was logically unable toproperly ascertain the gravity of Mr Russell's offending in isolation from the fact ofhis previous convictions. I am not satisfied that the Judge erred in this respect. I acceptMs Cleary's submission that the Judge appropriately applied what is an acceptedsentencing methodology in the present context.[27] Further, as stated by Wylie J:15The Court of Appeal has stated that the Courts should uphold the integrity ofprotection orders and respond sternly to those who flout their force andeffect.16 Orders are intended to ensure that the recipient of the protection orderis secure and inviolate. Repeated breaches of protection orders call for acondign sentencing response. Where there has been repeat offending over abrief period of time, a short term of imprisonment is the proper response.17[28] Mr Russell's offending against his former wife has been repetitive in theextreme. As noted, that is important context in assessing what in this case is the indexoffending. In sum, I do not consider that the Judge erred in departing from the orthodoxsentencing approach, and considering the quantity and nature of Mr Russell's previousoffending against his former wife. To ignore the background history in setting thestarting point "would be artificial and prevent a proper analysis of the gravity of theoffending".1814 Mitchell v R [2022] NZSC 89 at [6].15 Morris-Stewart v Police [2016] NZHC 1030 at [15].16 R v Cartwright CA175/02, 27 August 2002 at [20]–[21].17 R v Nathan CA209/06, 29 November 2006 at [25].18 Mitchell v R, above n 9, at [12].Starting point[29] Mr Forster submits that the starting point was excessive. He makes referenceto other cases in which lesser starting points were adopted, or cases where similarstarting points were adopted, but the offending was more serious. These included:(a) Williams v Police: in which a starting point of seven months'imprisonment was adopted on appeal for one charge of breach of aprotection order and one charge of male assaults female. The appellanthad four convictions for previous breaches of a protection order, threeviolence convictions in respect of the same victim, and a further assaultcharge in respect of another victim.19(b) Smart v Police: in which a starting point of 12 months' imprisonmentwas upheld on appeal where the appellant had sent over 1,400 textmessages over a six-week period, many of which were abusive and/orthreatening.20 The appellant had no convictions for previous breachesof a protection order.(c) Morris-Stewart v Police: in which a starting point of 12 months'imprisonment was adopted on appeal where the appellant had sent thevictim many text messages throughout the day and night, many ofwhich were abusive and threatening.21 The appellant had three previousconvictions for breaching a protection order.(d) Wallace-Joe v Police: in which the High Court upheld a starting pointof 12 months imprisonment for four charges of contravening aprotection order, three charges of male assaults female and one chargeof wilful damage. The appellant had smashed a window to gain entryto a property and pushed the victim to the ground by her throat. He lateralso hit the victim in the head and throat, and pushed her again, after19 Williams v Police [2014] NZHC 3255.20 Smart v Police [2016] NZHC 3092.21 Morris-Stewart v Police, above n 15.putting his fingers round her throat.22 The appellant had one previousconviction for breaching a protection order from 2015.(e) Robinson v Police: in which a starting point of six months'imprisonment was upheld on appeal, with an uplift of six months foreight previous convictions for breaches of the same protection order.The appellant had gone to the victim's house, abused one of theirfriends and then refused to leave.23(f) Coory v Police: where a starting point of 18 months' imprisonment wasadopted and uplifted by six months to reflect the appellant's sevenprevious breaches of the same protection order. The appellant had sent13 text messages to the victim over five days, entered her house,verbally abused her, and refused to leave. The final starting point wastwo years' imprisonment, which was upheld on appeal.24 I note thatCoory is of little assistance to the sentencing exercise—given it wasdecided prior to the passage of the Domestic Violence Amendment Act2013.25(g) Mitchell v R: in which a starting point of two years and six months'imprisonment was approved by the Court of Appeal, whereMs Mitchell had sent three tranches of letters to the victim fromArohata Women's Prison. She had 80 prior convictions for breachingor attempting to breach the protection order.26[30] Mr Forster says that in this case, a 15 month starting point was higher than incases where there had been associated physical violence, a large number of messages,and remaining despite having been told to leave. He says that in this case, there wasno violence, no messages left, no unlawful entry, and little harm caused. He submitsthat "[w]ithout prior convictions and or it being a continuation of a prior pattern of22 Wallace-Joe v Police [2016] NZHC 3060.23 Robinson v Police [2019] NZHC 1412.24 Coory v Police HC Dunedin CRI-2010-412-037, 25 November 2010.25 Crean v Police, above n 6, at [16(c)].26 Mitchell v R [2022] NZCA 159.abuse it was a de [minimis] breach of a protection order justifying an order to comeup for sentence [if called upon]". He says that Mr Russell's starting point should bebelow the eight months starting point identified by the Court of Appeal as the top ofthe range for protection order breaches involving the sending of voicemail messages.27[31] Ms Cleary submits instead that in light of Mr Russell's conflictingexplanations, and previous convictions, it was entirely open to the Judge to construethe offending in the manner that he did. Ms Cleary says that "Any submission that [thecalls] did not have an impact on [the victim] because the calls were not answeredmisunderstands the psychological pressure occasioned by such contact". Ms Clearysubmits that the "sophisticated release plan" and Mr Russell's engagement with theliaison nurse while in custody are unrelated to setting the starting point, given thatMr Russell did not accept that release plan, remaining adamant that he would returnto the victim's address.[32] The difficulty for Mr Russell on this point is that none of the other cases citedby Mr Forster concerned offenders with a similarly extensive background, and as Ihave noted above, that background was distinctly relevant to the consideration of thegravity of Mr Russell's most recent offending. The only exception to that isMs Mitchell, who had 80 previous convictions for the breaching of a protection order.Mr Russell has 40 previous convictions of a nature as are concerned in the presentcase. As a result of my conclusion above, the case law cited by Mr Forster is largelyirrelevant, because in all cases except Ms Mitchell's (and to a much lesser extent,Mr Robinson's), the index offending did not need to be and was not assessed within abroader context of a long-established pattern of abuse.[33] It is well-established that there is no guideline or tariff judgment for breachinga protection order, and that such offending varies greatly in both culpability and levelsof harm. However, the psychological and emotional impact of consistent and ongoingbreaches of protection orders should not be understated. Protection orders are intendedto be inviolate. While I accept that the index offending in this case was relativelyminor, the relevance of Mr Russell's previous convictions in setting the starting point,27 Mitchell v R [2015] NZCA 442 at [25].particularly the fact that he had committed a further breach within hours of beingreleased following similar offending, means that I am unconvinced that the Judge erredin setting a starting point of 15 months. That starting point was undoubtedly withinrange. I accept Ms Cleary's submissions regarding the gravity of the offending and thesetting of the starting point.Adjustment[34] Mr Forster submits that Mr Russell only received a 20 per cent guilty pleadiscount, when he should have received a 25 per cent discount for his early guilty pleato both charges. He says that no reasons were given by the Judge for departing fromthe guidance in Hessell v R.28 He says that this was an error, and that Mr Russell'ssentence should be reduced by one month in recognition of this error.[35] Ms Cleary accepts that there was no explanation from the Judge as to why20 per cent was the appropriate guilty plea discount, but submits that it was open tothe Judge to impose slightly less than the maximum in the circumstances. Ms Clearysays also that the end sentence remains within range. She further notes that theprovision of a guilty plea discount must take into account all the circumstances inwhich the plea is entered, and that the maximum discount is not guaranteed solely bythe virtue of a plea being entered at an early stage. Ms Cleary says that given thestrength of the Crown case, a guilty plea was inevitable and a full discount was notmandated.[36] I do not accept that the Judge erred in relation to the guilty plea discount.Ultimately, I am of the view that the end sentence was within range. Notwithstandingthe guidance in Hessell, discounts for guilty pleas and/or other mitigating factors werea discretionary matter for the Judge, and I can see no appropriate basis for tinkeringwith the end sentence by one month, particularly where the police case in this instancewas strong.2928 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.29 At [57], [60], [62], and [65].Conclusion[37] In sum:(a) the Judge appropriately determined that this is a case in which theapproach set out in Crean v Police may apply, in that Mr Russell'sprevious convictions were relevant to assessing the gravity of theoffending and therefore the starting point;(b) the starting point was appropriately calculated, notwithstanding therelatively minor nature of the index offending—because thecircumstances in which the index offending occurred indicate acontinued disregard for the debilitating effect of Mr Russell's campaignof abuse against his former wife; and(c) it would not be appropriate for this Court to tinker with the guilty pleadiscount awarded to Mr Russell, in the absence of a clearly identifiableerror, or a sentence that was clearly out of range.[38] I consider that Mr Russell's appeal should be dismissed. His sentence cannotbe described in any way as manifestly excessive.Result[39] Appeal dismissed.McQueen JSolicitors:Crown Solicitor, Napier for Respondent