CAVE v NEW ZEALAND POLICE [2023] NZHC 361

CAVE v NEW ZEALAND POLICE [2023] NZHC 361 [2 March 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-404[2023] NZHC 361BETWEEN RAWIRI CAVEAppellantAND NEW ZEALAND POLICERespondentHearing: 13 February 2023Counsel: E Butler and S Poulton for AppellantO Southern for Respondent(Via VMR)Judgment: 2 March 2023JUDGMENT OF HINTON JThis judgment was delivered by me on 2 March 2023 at 4.00 pm.Registrar/Deputy RegistrarDate: .Solicitors: Kayes Fletcher Walker, Manukau[1] Mr Cave appeals against a sentence of home detention given by Judge Clarkin the District Court on 20 October 2022. The charges were:(a) Assault on a person in a family relationship (x2);1(b) Assault with a weapon;2 and(c) Threatening behaviour.3Summary of offendingNovember 2021 offending[2] The victim and the appellant, who were in a relationship, were together at anaddress on 16 November 2021. The victim was 20 weeks' pregnant.[3] At around 11:30 am, the victim went outside the address and began cleaningup the garden. The appellant followed her outside and started calling her a "slut" oversomething that happened the night before.[4] The appellant then punched the victim five times in the face, causing her to fallover and become dizzy. The victim tried to get up by pulling herself up on the steprailing, at which point the appellant hit her hands twice with a spade.January 2022 offending[5] The appellant appeared in the Manukau District Court on 16 November 2021.He was granted bail simpliciter, with a standard 7 pm to 7 am curfew, and conditionsnot to offer violence and not to associate with the victim.[6] At around 7:30 am on 9 January 2022, the victim was sleeping at her homeaddress with the appellant (who was in breach of his conditions by associating withthe victim). She was 28 weeks' pregnant.1 Crimes Act 1961, s 194A, maximum penalty 2 years' imprisonment.2 Crimes Act 1961, s 202C, maximum penalty 5 years' imprisonment.3 Summary Offences Act 1981, s 21(1)(a), maximum penalty 3 months' imprisonment.[7] The appellant woke her by slapping her three times to the left side of herforehead with an open palm. He told her, "This is what you get, and this is why I amgoing to slap you all day". He said, "I'm going to rape you, put you in the closet, andtie you up." The victim got up and went to the lounge. The appellant followed her,told her that he would continue to hurt her, and slapped her to the left side of her facewith an open palm.[8] The appellant then picked up a plastic gun and started shooting the victim'slegs and arms with gel bullets. The victim walked to the bedroom. According to thevictim's impact statement, the appellant followed her, saying, "I'll kill you when mybaby is born." The victim feared for her life and started thinking of ways to get out ofthe house. She pretended to have pregnancy pain and was rushed to MiddlemoreHospital by ambulance.Sentencing decision[9] Judge Clark adopted a starting point of 20 months' imprisonment for theNovember 2021 offending. She uplifted that by 6 months' imprisonment for theJanuary 2022 offending, leading to an overall starting point of 26 months'imprisonment.[10] The Judge described the offending as serious and referred to comments by thevictim made in two victim impact statements. In the first statement, which was afterthe November 2021 offending, the victim recorded she was very fearful of more harm.As the Judge said, she was quickly proven right about that. In the second statement,written after the January 2022 offending, the victim said she understood the appellanthad completed programmes and she would like to start afresh with him. The Judgedescribed in detail the injuries sustained by the victim, noting that the appellant hadassaulted her while she was pregnant, and on more than one occasion, in one caseusing a spade as a weapon. She noted that the second assault occurred while theappellant was under bail conditions not to associate with or offend against the victim.[11] From the 26-month starting point, the Judge imposed a 3-month uplift toaccount for the fact that the appellant had offended (against the same victim) while onbail. She also imposed a 4-month uplift for the appellant's previous conviction historyfor violent offending. In 2018, he was convicted of family violence assault chargesand sentenced to eight months' imprisonment. He also had subsequent convictions forlesser family violence charges.[12] The Judge applied a 20 per cent discount for the appellant's guilty plea, notingthat it came quite some time after the November 2021 offending. She calculated thisdiscount at "around six and a half months". The Judge then allowed a 10 per centdiscount for the appellant's efforts at rehabilitation, which she calculated at around 3½months.[13] This brought the sentence to 23 months' imprisonment.[14] Judge Clark then considered whether a sentence other than imprisonmentwould be appropriate. She noted that the appellant's counsel advocated for a sentenceof community detention to allow for his rehabilitation and employment prospects, butdiscounted that option:4Mr Butler has talked about the fact that it would be better for you in terms ofemployment to be on community detention rather than anything more thanthat, but I am of the view, Mr Cave, that this is the last time that the Court willgive you the opportunity to remain in the community. My intention is toconvert or commute your sentence of imprisonment down to home detention,but that is as far as I am willing to go. That is because I need to send a strongsignal to you and anyone else like you, that having been in prison before forviolent offending against females, coming back in front of this Court again fora serious event in November last year, and then another event whilst on bail,means that you are right at the very top of the sentencing hierarchy.[15] The Judge reduced the appellant's sentence from 11 months' home detentionto eight months, to account for the period of time he had spent under electronicmonitoring (240 days) and immediately before that in custody (44 days).Grounds of Appeal[16] The appellant takes no issue with the starting point. He contends that the Judgeerred by:4 New Zealand Police v Rawiri Cave [2022] NZDC 20851 at [32].(a) applying an excessive uplift for the fact that the offending was whileon bail;(b) applying an excessive uplift for his previous criminal history;(c) not discounting enough for time spent on EM bail and in custody; and(d) failing to properly consider whether a sentence less than homedetention was appropriate.[17] The appellant considers that, as a result of these errors, his sentence of eightmonths' home detention is manifestly excessive.Appeal against sentenceApproach to appeal[18] Section 250(2) of the Criminal Procedure Act 2011 states that the Court mustallow an appeal if satisfied that:(a) for any reason, there is 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[20] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2)was not intended to change the previous approach taken by the courts under theSummary Proceedings Act 1957.6 Further, despite s 250 making no express referenceto "manifestly excessive", this principle is "well-engrained" in the Court's approachto sentence appeals.75 Criminal Procedure Act 2011, s 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].7 At [33], [35].[21] The approach taken under the former Summary Proceedings Act was set out inR v Shipton:8(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.(c) It is only if an error of that character is involved that the appeal Courtshould re-exercise the sentencing discretion.[22] The High Court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles. Whether a sentence ismanifestly excessive is to be examined in terms of the sentence given, rather than theprocess by which the sentence is reached.9Appellant's submissionsFirst and second grounds of appeal: imposition of excessive uplifts for offending whileon bail and for previous criminal convictions[23] On the issue of imposing a three-month uplift for offending on bail, Mr Butlersubmits that was conduct already reflected in the six-month uplift in sentence andshould not be counted again. He refers to W v New Zealand Police10 where the HighCourt noted the importance of not double-counting offending on bail when it hasalready been recognised by an uplift to the sentence.[24] As to prior convictions, Mr Butler notes that section 9(1)(j) of the SentencingAct 2002, requires the Court to consider the number, seriousness, date, relevance andnature of any previous convictions of the offender. He asserts that this must bebalanced against s 26(2) of the Bill of Rights Act 1990 which provides that no one8 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].9 Ripia v R [2011] NZCA 101 at [15].10 W v New Zealand Police [2019] NZHC 2933.who has been finally convicted of an offence shall be punished for it again. He citesOrchard v R,11 in which the Court of Appeal noted that previous convictions arerelevant as an indicator of character, culpability, potential recidivism and the need fordeterrence. The Court also noted, with reference to s 26(2) of the Bill of Rights Act,that uplifts for previous convictions must be proportionate to the sentence imposed forthe original offence.12[25] Mr Butler submits that an uplift of four months for previous convictions wasinappropriate, as the appellant was a "much younger man" at 18 years old when hewas imprisoned for those charges. He notes that these were the first family violencecharges he faced, and that the victim in those circumstances was his niece, not hispartner. Mr Butler asserts that this was material and suggests that the appellant's firstconviction was not relevant to the degree Judge Clark believed. He noted that theappellant was sentenced, concurrently, on a charge of escaping police custody,suggesting that his sentence in that matter was not solely related to family violenceoffending.[26] Mr Butler notes that later in 2018 the appellant was sentenced to supervisionon further family violence convictions, with which he complied. Counsel refers toseveral cases in the High Court which imposed lighter uplifts with respect to previousconvictions.13[27] He submits that an uplift of two to three months' imprisonment (instead of fourmonths) for prior convictions would be appropriate and in line with the cases cited.Third and fourth grounds of appeal: insufficient discount for EM bail and custody andfailure to appropriately consider whether a sentence of less than home detention wasappropriate[28] The main point advanced for the appellant is that Judge Clark failed to considerhis involvement with Te Whare Ruruhau when deciding whether to impose homedetention or a community sentence. He notes that the appellant, through that11 Orchard v R [2020] 2 NZLR 37.12 Above, at [41].13 Hemana v R [2022] NZHC 999; Rikihana v R [2013] NZHC 711; and Rawlings v R [2022] NZHC879.programme, had taken steps towards rehabilitation and had not re-offended sinceengaging. While this was taken into account with a 10 per cent discount, Mr Butlersubmits that the appellant's rehabilitation efforts and prospects ought to have beenconsidered in relation to sentence type as well as duration.[29] Mr Butler refers to Douglas v R14 in which the High Court upheld a sentenceof four months' community detention where the defendant was convicted of breachinga protection order and assault on a person in a family relationship. He acknowledgesthat the starting point of 12 months' imprisonment in that case was lower than for theappellant but suggests that the sentencing principles discussed by the Court –accountability, denunciation and rehabilitation – remains applicable. He further notesthat the defendant in that case had a history of offending against the same victim. Inthat case, Jagose J emphasised the need to balance the risk of re-offending against adefendant's rehabilitation prospects.15[30] Counsel further submits that Judge Clark did not take appropriateconsideration of the time the defendant had spent in custody and on electronicallymonitored bail without breach.[31] The appellant spent 44 days in custody and a further 186 days on electronicallymonitored bail without significant breach. Mr Butler notes he missed important familyevents. Short-staffing and delays by the Department of Corrections meant that he wasnot granted variations to attend those events. He says that this resulted in theappellant's time on EM bail being particularly restrictive.[32] While there was one breach of his bail, Mr Butler submits that this was theresult of an address being incorrectly entered into his updated bail bond, such that theappellant was technically in breach when visiting his mother. That visit had beengranted by variation of his bail on 30 August 2022.14 Douglas v R [2012] NZHC 1823.15 Above, at [8].[33] Mr Butler submits that the appellant's restrictive bail conditions and thepunitive nature of that bail meant that he had in substance already served a period ofhome detention at time of sentencing.[34] He refers to R v Walker-Haturini16 in which the Court noted that therestrictiveness of EM bail should be taken into account when sentencing and credited"in the same way as an electronically monitored community-based sentence unlessgood reasons exist for not doing so."17 The Court reasoned that the substance of arestrictive EM bail detention, imposed pre-conviction, is the same as an EM bailcommunity sentence, and should be credited accordingly.[35] While the appellant was effectively afforded a three-month reduction in hissentence of home detention to bring it from 11 months to eight, counsel suggests thatgiven the appellant was in custody for 44 days, and on electronically monitored bailfor six months, a three-month deduction was inadequate.[36] Overall, Mr Butler submits that a total uplift of three-months' imprisonmentfor previous convictions would have been appropriate, and no additional uplift shouldhave been made for offending while on bail. He further submits that an end sentenceof community detention was appropriate considering the defendant's efforts atrehabilitation and the lengthy period he remained on electronically monitored bail withno significant breach.DiscussionIncorrect application of Moses[37] The respondent makes the important preliminary point that the Judge hasincorrectly applied Moses18 in calculating the sentence, in a manner that is favourableto the appellant. She has calculated the percentage discounts for the guilty plea andefforts at rehabilitation, not from the adjusted starting point (26 months' imprisonmentfor the offending overall), but from the adjusted starting point after uplifts for personal16 R v Walker-Haturini [2021] NZHC 1208.17 Above, at [24].18 Moses v R [2020] 3 NZLR 583.aggravating factors (33 months' imprisonment). This has led to the actual discountsbeing greater than the percentages fixed by the Judge. Had the calculation been madecorrectly, the appellant would not have been eligible for home detention. AsMr Southern accepts, the Judge may have increased the percentage awards had sherealised her error, but the point is clearly material as to whether the final sentence canbe considered manifestly excessive.Starting point[38] Although not at issue, I note that Judge Clark's starting point of 20 months'imprisonment was within the available range. In Kihi v Police,19 an 18-month startingpoint was upheld on appeal where the appellant had assaulted the victim with a hairstraightener, and a nine-month uplift was applied for surrounding factors. In Fifita vPolice20 a starting point of 24 months' imprisonment was upheld where the appellantassaulted the victim several times with an axle.[39] As also accepted by both counsel, the six-month uplift for the January 2022offending was well within the range available to Judge Clark. It took account of thetotality principle of sentencing. I agree with the respondent that if the offending inJanuary 2022 were to be assessed alone, it would likely attract a starting point of12 months' imprisonment.21Uplift for offending on bail[40] Judge Clark was entitled to impose an uplift of three-months' imprisonment toaccount for the fact that the appellant had violently offended against the same victimwhile on bail for previous offending against her, in accordance with s 9(1)(c) of theSentencing Act 2002. Such an uplift is not double-counting. It is quite standard. It19 Kihi v Police [2017] NZHC 2883.20 Fifita v Police [2013] NZHC 763.21 In Wawatai v Police [2015] NZHC 406, Mr Wawatai faced a single charge of male assaults female,in relation to an incident where he had drunkenly punched his partner in the face with a closedfirst. On appeal, Courtney J considered that an appropriate starting point was one of 7 months'imprisonment, with a 3-month uplift for Mr Wawatai's previous convictions of a similar nature.Smith v Police:21 Mr Smith was sentenced to a term of 12 months' imprisonment for male assaultfemales and wilful damage. The Judge adopted a starting point of 12 months' imprisonment forthat offending. Mr Smith had struck the victim twice to the face with the back of his hand, kickedher on the upper thigh, and then grabbed her hair and swung her from side to side. The startingpoint was not challenged on appeal.recognises an offender's disregard for court processes and orders.22 The Judgeacknowledged the uplift as discrete in her sentencing notes.23[41] In this case the January 2022 offending occurred soon after the appellant wasgranted bail (on 16 November 2021); the offending was against the same victim; theoffending was in breach of two of the appellant's bail conditions (non-association andnon-offending against the victim); and the appellant had a history of violent offendingwhile on bail.[42] As to duration, a three-month uplift is proportionate and justified, by referenceto a standalone starting point in the region of 12 months' imprisonment for the Januaryoffending. I have already noted that the uplift in the starting point for that offendingwas well within range. While the Judge referred to the fact that the offending was onbail, I do not consider there is any element of double-counting.Uplift for previous convictions[43] I consider Judge Clark was also correct to impose a four-month uplift in respectof the appellant's previous convictions.[44] In Wawatai v Police,24 from a starting point of 7 months' imprisonment for arelatively minor male assaults female charge, Courtney J imposed a 3-month uplift forMr Wawatai's previous convictions. This was not challenged on appeal but the Courtnoted without demur that the Police considered it "generous". In Smith v Police,25from a starting point of 12 months' imprisonment for male assaults female, the Judgeimposed a 4-month uplift for Mr Smith's previous convictions for family violence.Finally, in Bigham-Hill v R,26 from a starting point of 18 months' imprisonment formale assaults female (described as being towards the top end for such offending), theJudge imposed a 6-month uplift for Mr Bigham-Hill's previous convictions. This wasnot disturbed by this Court on appeal, although Mallon J noted that "such an uplift wasat the very top of the available range."22 Clunie v R [2013] NZCA 110.23 Above n 4 at [24].24 Above n 21.25 Smith v Police [2013] NZHC 3406.26 Bigham-Hill v R [2019] NZHC 753.[45] I consider that the four-month uplift was within the available range. I rejectthe appellant's argument that the appellant's previous convictions were irrelevantbecause they related to an assault on his niece. There is no valid distinction. Thesignificance of the previous convictions is they involved violence against females.The Judge's concern and this Court's concern is that the appellant had not beendeterred by his sentence of imprisonment and has continued to violently offend againstwomen.[46] Overall, I consider the uplifts to have been fair and had the Judge calculatedthe sentence in accordance with Moses, the appellant was at risk of not even beingeligible for home detention.Insufficient discount for time spent on EM bail and in custody[47] After discounts for rehabilitation and guilty plea, the appellant's sentence wasconverted from 23 months' imprisonment down to 8 months' home detention (asopposed to the standard 11½ months), by reference to his time spent in custody andon EM bail, and to advance his rehabilitation prospects after sentence. The creditgiven is broadly consistent with other cases. Had these factors been individuallycredited, the 240 days of EM bail would have justified a reduction in the prison termof about three months, taking it to 10½ months' imprisonment. Deducting the periodspent in custody in full would have resulted in home detention of nine months.27 TheJudge fixed a term of eight months, which was favourable to the appellant.Sentence less than eight months' home detentionI consider Judge Clark was correct to then conclude that a sentence of home detention,rather than imprisonment or a community sentence, would appropriately meet therelevant purposes and principles of sentencing. Home detention operates to deter anddenounce the appellant and others from committing family violence offending,particularly where there has been recidivist offending (and in this case, two sets ofoffending against the same victim). Yet it also recognises the need to impose the least27 Longman v Police [2017] NZHC 2928.restrictive sentence that is appropriate in the circumstances, having regard to theappellant's prospects for rehabilitation.[48] Given the gravity of his offending, particularly the risk of further offendingagainst the complainant (part of the present offending being while on bail), I considerthat Judge Clark was clearly correct to reject a sentence of community detention.Result[49] Overall, the sentence is not manifestly unjust. If anything, it is favourable tothe appellant.[50] For the reasons given, the appeal is dismissed.____________________________Hinton J