BOLTON v NEW ZEALAND POLICE [2016] NZHC 1297

BOLTON v NEW ZEALAND POLICE [2016] NZHC 1297 [15 June 2016]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2016-409-000046[2016] NZHC 1297BETWEEN SHAUN JOHN BOLTONAppellantAND NEW ZEALAND POLICERespondentHearing: 14 June 2016Appearances: D J Matthews for AppellantAMS Williams for RespondentJudgment: 15 June 2016JUDGMENT OF GENDALL JIntroduction[1] The appellant, Shaun Bolton, pleaded guilty in the District Court to two charges of male assaults female1 and one charge of wilful damage.2 On 11 May 2016 Judge Mabey sentenced Mr Bolton to 26 months' imprisonment. The appellantnow appeals on the basis that the sentence imposed was manifestly excessive.BackgroundFactual circumstances[2] On Saturday 13 February 2016 Mr Bolton, in an intoxicated state, arrived at the home of his partner, the victim. Also present at the address was the partner'ssister and her partner. The victim was sitting on the front doorstep when Mr Bolton became verbally aggressive towards her. Things escalated and Mr Bolton picked her up by the hair and clothes and threw her into a brick wall. The victim walked inside1 Crimes Act 1961, s 194(b).2 Summary Offences Act 1981, s 11(1)(a).and tried to shut the front door but the appellant forced the door open, grabbed her by the throat and held her against the wall momentarily. The victim broke free and went to the lounge in order to get away. The appellant followed her, picked her up and threw her down on the couch. He then held her down and punched her twice in the face with a closed fist. The victim suffered a cut to the head.[3] Some weeks later, on Saturday 2 April 2016 Mr Bolton was again at the home of the victim, now his ex-partner, in an intoxicated state. He again began verbally abusing the victim. Over a two hour period things escalated to the point where Mr Bolton picked up the victim's microwave and threw it across the kitchen breaking it. The victim attempted to escape into the longue, hiding behind her friend who was present. However, Mr Bolton pushed the friend aside and kicked the victim four times on the left side of her body as she crouched down to protect herself. Mr Bolton walked out of the longue kicking a glass tank in the kitchen, smashing it.Judge Mabey's sentencing[4] Judge Mabey noted the appellant's serious list of previous convictionsinvolving relevant violent offences, some against females and some in a domestic scenario. It was accepted by everyone involved that the only available sentence here was one of imprisonment.[5] On the first charge of male assaults female, Judge Mabey took a starting pointof 15 months' imprisonment, taking account of the level of violence, and the victim'svulnerability. The Judge increased that by three months to reflect the previous similar offending. The Judge then gave a four month discount for the guilty plea reducing the sentence to one of 14 months.[6] On the second charge, Judge Mabey took a starting point of 18 months given that the offending was shortly after the first lot of offending and was against the same woman. This was increased to 20 months given the offending was while the appellant was on bail. A full guilty plea credit reduced this to 15 months'imprisonment.[7] In considering whether to impose the sentences cumulatively or concurrently, the Judge considered the offending was separate in time and quite distinct even though it was against the same person. For that reason His Honour decided that a cumulative sentence was the most appropriate. In order to not offend the totalityprinciple the sentence was reduced from 29 to 26 months' imprisonment. A onemonth concurrent sentence was entered on the wilful damage charge.SubmissionsSubmissions for the appellant[8] Counsel for the appellant submits that the end sentence was manifestly excessive. Counsel says that:(a) a global starting point in the region of up to 20 months' imprisonmentwas appropriate for the totality of the offending here;(b) an overall uplift of up to six months to reflect the appellant's previoushistory and the fact that he reoffended on bail against the same victim could be justified; and(c) after 25 per cent credit is allowed for the appellant's guilty pleas, an end sentence in the region of 20 months' imprisonment was theappropriate outcome.Submissions for the respondent[9] In response, the respondent contends that the end sentence of 26 months'imprisonment was available to Judge Mabey and cannot be described as manifestly excessive. The fact that the victim did not sustain serious or permanent injuries is reflected in the level of the charge.[10] It is also submitted that the seriousness of the offending is further aggravated by the close temporal proximity of the two incidents and the fact that the appellant was on bail at the time of the second offence for the earlier offending.Jurisdiction[11] The appellant may appeal the imposed sentence as of right.3 As the first appeal Court,4 this Court must only allow the appeal if satisfied that:5(a) For any reason, there is an error in the sentence imposed on conviction; and(b) A different sentence should be imposed.[12] In the recent judgement of Tutakangahau v R, the Court of Appeal confirmed that the Criminal Procedure Act 2011 sentence appeal regime was not intended to signify a departure from the position under the previous Crimes Act 1961, s 385(3), and the Summary Proceedings Act 1957, s 121(3), regimes.6 In specifically considering the pre-Criminal Procedure Act concept of manifestly excessive, the Court of Appeal stated:[33] Plainly, s 250(2) makes no express reference to a "manifestly excessive" sentence. However, this concept has been part and parcel of theapproach to sentencing appeals for a considerable time and we can discernno intention to change the approach[13] The appeal proceeds on this basis.Discussion[14] There is no submission advanced here for Mr Bolton that Judge Mabey was not entitled to sentence on a cumulative basis. Section 84 of the Sentencing Act 2002 provides that concurrent sentences are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.7 That is not the case here. Although the offences are similar in kind, and the victim was in fact the same person on both occasions, the incidents took place some weeks apart so it could not be said they were a connected series of offences. However, given that cumulative sentences of imprisonment were being3 Criminal Procedure Act 2011, s 244.4 Section 247.5 Section 250.6 Tutakangahau v R [2014] NZCA 297, [2014] 3 NZLR 482.7 Section 84(2).imposed, an adjustment for totality was likely to be necessary.8 Judge Mabey did reduce the sentence by three months to account for this totality.[15] In R v Reihana it was noted that there is no tariff for the offence of male assaults female. The circumstances of its commission and offenders can vary greatly.9[16] In Wallace v R the offender pleaded guilty to two counts of male assaults female, two counts of common assault and one count of intentional damage.10 The victim was attacked by the offender a number of times using both fists about the upper and lower legs. As she tried to protect herself the offender punched her in her arms, stomach and back. The victim ended up on the floor in the foetal position where she lay crying. The victim suffered severe bruising covering her legs, back, stomach, arms and shoulder.[17] The following day the victim was again at the house. The offender entered the room racially abusing her. When the victim tried to escape the appellant chased her, throwing her into another room where he pushed her into an upstanding heater causing it to fall over and the victim on top of it. After running to the door she was pushed to the ground. This gave rise to a charge of common assault. On that same day the offender threw the victim's friend out the door when she tried to help thevictim. She suffered a bruised arm and a sore head from her hair being pulled. This gave rise to a further charge.[18] One week later the first victim was at her home with the offender. They argued and she left the address. The offender approached her from behind grabbing her leg. He then punched her once to the right side of her head. This resulted in a further charge of male assaults female.[19] The Court of Appeal held that the starting point of 15 months' imprisonmentfor all of the offending was within the available range, stating:118 Sentencing Act 2002, s 85.9 R v Reihana CA 143-03, 3 July 2003.10 Wallace v R [2012] NZCA 546.11 At [14].The first assault on Ms K was quite serious. Although it did not involve any attack to the head it was sustained. The final attack in which Ms K was punched in the head, while not as serious, was such as to require an uplift. Further, the seriousness of the offending was aggravated by the gratuitous assault on Ms J.[20] However, the Court did consider the final sentence to be "stern".12[21] In Soper v Police the offender appealed his sentence of 21 months'imprisonment for one charge of common assault and one charge of male assaults female, both committed against his former partner. The victim was recovering from injuries she received as a result of a car accident. She was on crutches and had a metal plate installed to remedy a broken eye socket.[22] The first assault occurred after the victim and the offender had been drinking heavily. The offender became angry, straddled the victim and pushed down hard on her chest causing her pain. He also clenched his fist and threatened to punch the victim. Two days later the victim arrived home to find the offender intoxicated. She threatened to call the police and he became angry, again straddling her and punching her in the face three times. This resulted in the male assaults female charge.[23] On appeal Dunningham J considered that a sentence of 12 months'imprisonment was an appropriate starting point for sentencing on a charge of male assaults female alone. However, to reflect the totality of the overall offending, Her Honour considered a 15 month starting point to be appropriate in that case.[24] The appellant in Nixon v R was convicted of one charge of male assaults female and sentenced to 12 months' imprisonment.13 The offending was described as follows:[4]The Crown case was that early in the morning of 17 August 2000 Mr Nixon was at his flat A female flatmate, H, arrived at the flat. An argumentdeveloped between these two persons regarding the tidiness of the house. Mr Nixon told H to leave. She refused to do so. She said it was her house also. Mr Nixon then grabbed H by her top and pushed her out of the door, thereby causing her to fall onto a concrete area outside; and Mr Nixon then approached her, and kicked her three times in the back across the tailbone. This caused some bruising to the back of her thigh and her right hip12 At [23].13 Nixon v R CA87/01, 19 June 2001.areaUndoubtedly H was bruised, and she had to have an x-ray. She was provided with crutches for six days. After the alleged assault, H left the address. She kicked the side of Mr Nixon's car as she did so.[25] The sentence was described by the Court of Appeal in that case as "firm" butit was upheld.14[26] In the Court of Appeal decision in Luff-Pycroft v R15 three discrete instances of offending against the same victim occurred over a period of three months. The first incident involved the offender choking the victim, leaving marks on her neck, then fetching a knife and threatening to kill her. The second incident involved the appellant pushing the victim to the ground, kicking her about the body and then producing a knife and threatening to kill her, and the final incident involved the offender strangling the victim, biting her in the face and other areas multiple times and then placing his hand over her mouth with such force that it broke the enamel on three of her front teeth.[27] The charges in this case were more serious, two of assault with intent to injure and one injuring with intent to injure. A starting point in this case of two years was taken for the injuring with intent offending with a further four month uplift for the other offending and to reflect the continued nature of the offending. Thisresulted in an overall starting point of 28 months' imprisonment.[28] Finally, in the decision in this Court Leacock-Johnson v NZ Police16 the appellant committed two separate violent attacks on his partner, the first of which gave rise to charges of male assaults female and intentional damage, and the second gave rise to charges of male assaults female, intentional damage, breach of a protection order and refusing to permit a specimen of blood to be taken. The appellant had numerous previous convictions, including two for male assaults female, and one for assault on a child. He had been subject to a community based sentence at the time of the first offending and on bail at the time of the second.14 At [26].15 Luff-Pycroft v R [2012] NZCA 107.16 Leacock-Johnson v NZ Police (HC) Invercargill CRI-2010-412-15, 12 May 2010.[29] There are, in my view, a number of significant similarities between theLeacock-Johnson case and the present case.[30] In Leacock-Johnson the sentencing Judge adopted a starting point of 18 months' imprisonment in respect of the first incident for which the lead offencewas the charge of male assaults female. This was uplifted by three months to reflectthe appellant's previous convictions and reduced by six months to reflect his guiltyplea. The sentencing Judge then imposed a sentence of nine months' imprisonmenton the second charge of male assaults female. No starting point was identified,however, the nine months was imposed cumulatively on the 15 months' sentence forthe first incident. A further six months' imprisonment was then imposed in respectof a separate drinking and driving charge, although this of course differs from the case before me. All of this resulted in an effective sentence of 24 months for the assault type charges.[31] On appeal to this Court His Honour Justice Miller concluded that the sentencing Judge was entitled to employ cumulative sentences despite the fact that the same victim was involved. He said that because the incidents were separate intime and the second incident occurred while the appellant was on bail "concurrent sentences would not have adequately reflected the appellant's culpability". Miller J further noted that the first male assaults female charge was a "nasty case of domestic violence" and that the Courts could not display leniency towards such offending.Finally, he concluded that the accumulation of aggravating factors (previous assault against the same victim, other relevant previous convictions and offending against the victim whilst on bail) meant that the sentence imposed did not breach the totality principle, and he dismissed the appeal.Result[32] With all these decisions in mind, I am satisfied that the final sentence of 26 months' imprisonment imposed by Judge Mabey in the present case was one available to him. The offending here clearly involved a serious combination of aggravating features. This was a case of serious domestic violence. Aggravating features included multiple incidents of violence, attacks to the head, a vulnerablevictim, offending in the victim's home where she was entitled to feel safe, damage toproperty, offending whilst on bail, and a significant history of previous violent convictions.[33] In considering the gravity of the offending the sentence in this case was one clearly available to the District Court Judge and in terms of overall totality the 26 months' imprisonment imposed was appropriate here.[34] For all the reasons outlined above, this appeal is dismissed....................................................Gendall JSolicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co, Christchurch