BEHAN-KITTO v NEW ZEALAND POLICE [2017] NZHC 2101

BEHAN-KITTO v NEW ZEALAND POLICE [2017] NZHC 2101 [31 August 2017]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI-2017-443-17[2017] NZHC 2101BETWEEN SHAYNE EDWARD HETEKIA BEHAN-KITTOApplicantAND NEW ZEALAND POLICERespondentHearing: 15 August 2017Appearances: J Woodcock for the applicantR Kos and H Savage for the respondentJudgment: 31 August 2017JUDGMENT OF CULL J[1] This is an appeal against sentence, arising out of repeat domestic violence offending. Mr Behan-Kitto pleaded guilty to two charges of contravening a protection order,1 one charge of male assaults female,2 and one charge of burglary.3[2] On 16 May 2017, Judge Barkle sentenced Mr Behan-Kitto to two years and one months' (25 months) imprisonment.4 He now appeals this sentence on the basis that it was manifestly excessive.Factual background[3] Mr Behan-Kitto and his partner (the victim) had been in a relationship for approximately eight years and have four children together. At the time of the1 Domestic Violence Act 1995, ss 19(2)(c), 49(1)(a) and 49(3), maximum penalty of three years'imprisonment.2 Crimes Act 1961, s 194(b), maximum penalty of two years' imprisonment.3 Section 231(1)(a), maximum penalty of 10 years' imprisonment.4 R v Behan-Kitto [2017] NZDC 10140.offending, she was pregnant with their fourth child. She also has another child living with her, which Mr Behan-Kitto treats as his own.[4] A final protection order was issued on 12 May 2016. Although the couple had reconciled in July 2016, by 31 August 2016 they agreed they needed to separate. At this time, Mr Behan-Kitto was subject to supervision and community work in respect of previous domestic violent offending against her.[5] On 1 September 2016, the victim packed Mr Behan-Kitto's belongings and asked him to leave the house, which he refused to do. Over the course of that day, she asked him numerous times to leave, which he eventually did at 11 pm that night. He returned, however, to the same address on 2 September 2016 and remained, despite being asked numerous times to leave.[6] Later that evening, Mr Behan-Kitto lured the victim into the basement garage. He grabbed her from behind once she was in the basement and put both his hands over her mouth and nose, preventing her from talking and breathing for a short time. She managed to pull away and push Mr Behan-Kitto some distance in an attempt to escape. He grabbed her by the arm. One of the children came into the basement, saw what was going on and screamed, causing Mr Behan-Kitto to release the victim. Back inside the house, Mr Behan-Kitto would not let the victim leave. When he went outside at one point, the victim took the opportunity to leave and wentto her mother's house.[7] Two days following, on 4 September 2016 at approximately 8.30 pm, Mr Behan-Kitto arrived unannounced at the victim's mother's address. Mr Behan- Kitto yelled at the victim to come outside, which she did not. He sent text messages to her mother, and she remained inside. He then slept in his car at the address. At 6.00 am on 5 September 2016, Mr Behan-Kitto knocked on the window of where the victim was sleeping, before walking around to the back of the property, picking up a rake and smashing the glass in the door. He then reached through the broken window and walked into the house, having unlocked the door.[8] Mr Behan-Kitto remained in the house with the victim and children beforesurrendering to the police just after 8.30 am. The police were called by the victim'smother.[9] The defendant was arrested and charged. He pleaded guilty to two charges of contravening a protection order, one charge of male assaults female and one charge of burglary.[10] Mr Behan-Kitto is 27 years of age and has 21 previous convictions, including two convictions for contravening protection orders in 2016 and seven convictions for violent offending of low-moderate seriousness.District Court decision[11] On 16 May 2017, Judge Barkle sentenced Mr Behan-Kitto on these four charges.5 Of note, the Judge highlighted that he took into account Mr Behan-Kitto'sprevious four convictions in 2016 for domestic violence offences against the same victim as an aggravating factor for the current offending.6 The Judge said that taking into account Mr Behan-Kitto's recent similar offending was in accordance with theCourt of Appeal decision in Mitchell v R,7 and the sentiments expressed by Brewer J in Crean v Police.8 The Judge did note that there must not be double counting of previous convictions when aggravating personal circumstances are assessed.[12] The Judge considered the burglary charge as the lead offence and used this offence to reach a starting point. The Judge stated that this was not the most usual type of burglary offence. Rather than having an intent to steal property, Mr Behan-Kitto's intent was to make contact with the victim and his children. The Judgeconsidered the following were aggravating factors for the burglary:(a) it was a continuation of earlier intimidating and irrational conduct that commenced two days earlier;5 Behan-Kitto, above n 4.6 Two convictions for protection order contraventions, a male assaults female conviction and a conviction for threatening to kill or do grievous bodily harm.7 Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498.8 Crean v Police [2015] NZHC 3203 at [16].(b) his presence was frightening and intimidating immediately prior to the burglary;(c) the burglary event itself lasted for over two and a half hours until he surrendered to police;(d) property damage was caused by making entry, even though it was not significant it would have been of considerable concern to the occupants;(e) there were a number of victims of his offending, including his partner, her mother and the children; and(f) the offending occurred while under the influence of methamphetamine.[13] The Judge considered the breach of the protection order on the same day was not a minor breach, as it was part of a prolonged period of psychological abuse of his partner, which began the previous evening.[14] Weighing all of these factors, the Judge took a starting point of 21 months'imprisonment. This starting point reflected all of the conduct that occurred on 5 September 2016, namely, the burglary and first contravening protection order charge.[15] The Judge then considered the other two offences that took place on 2 September 2016; male assaults female and the second charge for contravening a protection order. The Judge noted the aggravating features of the male assaults female charge were:(a) it was the most frightening event of the offences for the victim;(b) the fact that the victim was pregnant;99 Citing Waitai v R [2014] NZHC 2116.(c) one of the children saw the event taking place and became extremelyupset (and, but for the child's intervention, the event might have been prolonged); and(d) there was a degree of premeditation and planning because Mr Behan- Kitto had to lure his partner downstairs.[16] In terms of the second protection order breach, Mr Behan-Kitto persisted in remaining on the property, even after being asked to leave on a number of occasions.The Judge considered "this was a prolonged period of intimidating behaviour resulting in psychological abuse of the victim over a considerable period."10[17] There were no mitigating factors for the offences on 2 September 2016. The Judge uplifted his original starting point by nine months to reflect the overall offending. This bought the final starting point to 30 months' imprisonment, or twoyears and six months.[18] The Judge considered the following were personal aggravating factors warranting a further four month uplift:(a) Mr Behan-Kitto's previous violent offending from 2008 to 2011, although the Judge noted he was not including the 2016 convictions for domestic violence related offending as he had already taken these into account in the aggravating factors of the offending; and(b) Mr Behan-Kitto was subject to a sentence of supervision and community work at the time this offending took place.[19] From this sentence of two years and ten months' imprisonment, the Judgethen gave a full 25 per cent discount for Mr Behan-Kitto's guilty pleas. Thisamounted to a discount of approximately eight and a half months, but the Judge increased this slightly and gave a nine month discount.10 Behan-Kitto, above n 4, at [29].[20] Mr Behan-Kitto's final sentence was, therefore, two years and one months'imprisonment. The sentences were to be served on a concurrent basis, allocated as follows:(a) In respect of the burglary charge, imprisonment for two years one month.(b) In respect of the first breach of a protection order charge, six months'imprisonment.(c) In respect of the male assaults female charge, eight months'imprisonment.(d) In respect of the second breach of protection order, four months'imprisonment.[21] The Judge also remitted Mr Behan-Kitto's outstanding fines and cancelledthe release conditions that were to expire on 27 October 2017.Approach to appeal[22] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.11 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.12Appellant's position[23] Mr Behan-Kitto appeals his sentence, as being manifestly excessive, on three grounds. They are:(a) the totality of the offending was too high;11 As confirmed in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.12 Ripia v R [2011] NZCA 101 at [15].(b) the Judge incorrectly uplifted the starting point for earlier offending involving the same victim; and(c) the Judge erred in finding that the fact the offending took place under the influence of methamphetamine was an additional aggravating feature.[24] Ms Woodcock, counsel for Mr Behan-Kitto, submits that the starting point of 21 months' imprisonment for the burglary and first breach of protection ordercharges was too high, in light of the circumstances. This was not a classic burglary in terms of unlawful entry into a building to take property. There was no violence directed to the victim and was only minor damage at the rear door. Entry was gained in an attempt to speak with the victim. Mr Behan-Kitto acted impulsively. The Judge accepted the damage was minor, no threats or intimidating conduct was used and Mr Behan-Kitto shared breakfast with his family before leaving.[25] Ms Woodcock relies on Rewita v Police to submit that a lower starting point was justified.13 In that case, Mr Rewita was sentenced to 20 months' imprisonmentfor charges of assault with intent to injure, burglary and two charges of breaching a protection order in relation to offending on three occasions. The burglary offending is acknowledged as less serious in Rewita, as Mr Rewita entered the victim's housethrough a window while she was out and turned the oven on. However, Mr Rewita'sviolent offending was more serious than Mr Behan-Kitto's. Counsel submits that thebreach of protection order charges in this case and Rewita are of a similar nature, involving arguments and refusals to leave.[26] Secondly, it is submitted that the Judge erred in referring to Mr Behan-Kitto'sprevious convictions for offending against the victim as an aggravating factor of this offending, relying on Mitchell v R.14[27] Finally, the appellant submits the Judge erred in regarding the offending as aggravated by Mr Behan-Kitto's methamphetamine use. Reference to such use was13 Rewita v Police [2013] NZHC 2175.14 Mitchell, above n 7.not in the summary of facts, although Mr Behan-Kitto did admit his offending was attributable to this. Counsel submits it is an error to rely on alcohol or drug dependency as an aggravating feature where offenders acknowledge issues they need assistance with to probation officers and should, instead, form part of rehabilitative sentences. Counsel relies on R v Finau, where the Court of Appeal said that it was not conventional to regard use of alcohol and illicit substances as an aggravating factor requiring an uplift from a properly determined starting point.15[28] Ms Woodcock submits that the sentence of 25 months' imprisonment shouldbe quashed and substituted with a sentence of 18 months' imprisonment.Crown's position[29] The Crown opposes the appeal, submitting that the overall end sentence was within the range available to the Judge, who appropriately took into account all of the relevant factors and reflected the totality of the offending.[30] First, the Crown submits that the Judge did not err in setting a starting pointof 30 months' imprisonment for the totality of the offending. The Crown comparesthe present case with a number of relevant cases to assess this.[31] Second, the Crown submits that, notwithstanding the shorter term of Mr Behan-Kitto's earlier 2016 domestic violence offences, his history with the victim is still relevant to assessing culpability in relation to an appropriate starting point. The Judge was careful not to double count the 2016 offences in setting the sentence; he included them as aggravating factors of the offending, but not as aggravating factors of the offender. This was the approach adopted in Crean v Police and Judge Barkle's uplift in this case was appropriate in light of this.16[32] Finally, the Crown submits that the Judge's approach to Mr Behan-Kitto'smethamphetamine use was not inappropriate. Although the Court of Appeal has held it is not conventional to regard illicit substance use as an aggravating feature of a starting point, the overall starting point the Judge adopted in the present case was15 R v Finau (2003) 20 CRNZ 333 (CA) at [16].16 Crean, above n 8, at [21].appropriate in light of the circumstances. It was only one of six aggravating features of the burglary offending and there was no error as a result of taking it into account.Analysis[33] I will deal with each of the three grounds of the sentence appeal under each of the respective headings.Starting point for totality of offending[34] In setting the starting point for the totality of offending, the Judge correctly took the burglary offence as the lead offence as it has the maximum statutory penalty. The burglary was not conventional, in the sense that Mr Behan-Kitto did not take any property. However, the relevant aggravating factors are:(a) the burglary event itself occurred early in the morning and Mr Behan- Kitto remained in the house for around two and a half hours;(b) some property damage was caused by smashing the glass in the back door; and(c) the burglary occurred in the context of intimidating behaviour towards the victim and her mother as well as being a continuation of earlier intimidating conduct.[35] In Arahanga v R, the Court of Appeal observed there was no tariff case for burglary offending due to the range of circumstances in which the offence can be committed.17 However, the Court noted that minor dwelling house burglaries tend toattract starting points between 18 to 30 months' imprisonment.[36] Ms Woodcock strongly contends that Mitchell is distinguishable on the facts in this case. In Mitchell, the offender had nine previous convictions for breaching a protection order at the time she committed the offending. She was sentenced for charges of intentional damage and breach of a protection order. The Judge uplifted a17 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].starting point of two and a half years' imprisonment by two months because theoffending was caused in breach of bail terms imposed and for a significant number of previous convictions. On appeal, the Court of Appeal said that while previous convictions are generally considered after the starting point, this is not the rule.18The Court upheld the Judge's approach as it was reflective of Ms Mitchell'sculpability, and her background of offending against the two victims.[37] Although Ms Mitchell had been subject to a protection order for five years and had nine previous convictions for breaching the order in circumstances where prior sentences of imprisonment were imposed and the victim impact was severe, Ms Mitchell was sentenced for one charge of intentional damage and one charge of contravening the protection order.[38] The offence of intentional damage carries a maximum penalty of seven years'imprisonment,19 whereas burglary, with which Mr Behan-Kitto is charged, carries amaximum penalty of 10 years' imprisonment.20 Further, at the time Ms Mitchell wassentenced, the maximum penalty for breaching a protection order was two years'imprisonment.21 Now it is three years' imprisonment.22[39] I consider that the Judge was correct to take into account the Court ofAppeal's decision in Mitchell, where the Court said the culpability of that offender'sconduct could not be fully assessed without taking into account the background history of offending against the two victims. The Mitchell decision is not limited to its facts and I deal with this further in the discussion on the second ground.[40] Similarly in Crean v Police, Brewer J held that concurrent sentences, eachwith a starting point of 15 months' imprisonment, were appropriate for twoprotection order breaches.23 Mr Crean had gone to the victim's house, refused to leave despite repeated requests, had two recent previous convictions for the same18 Mitchell, above n 7, at [12].19 Crimes Act 1961, s 269(2)(a).20 Section 231(1)(a).21 Ms Mitchell was first sentenced on 10 September 2013, prior to the Domestic Violence Amendment Act 2013 coming into effect on 25 September 2013. Section 11(1) of that Actamended the maximum penalty from two years' to three years' imprisonment.22 Domestic Violence Act 1995, s 49(4).23 Crean, above n 8, at [19].offending, was subject to a release condition not to associate with the victim and had offended on two occasions in close succession.[41] I consider the Judge's starting point of about three to six months is appropriate for this offending alone.24 In relation to the second protection order breach, a sentence of three to six months' imprisonment would also be warranted.For these two offences it is also appropriate to consider Mr Behan-Kitto's earlier domestic violence offending against the same victim in 2016 as an aggravating factor. This is addressed further in the next section in relation to the uplifts imposed.[42] I do not consider this case is comparable to Rewita v Police, as authority to adopt a lower starting point. I acknowledge the burglary in Rewita was less serious than the burglary committed by Mr Behan-Kitto, but Mr Rewita's actions were less serious in terms of breaching protection orders. Mr Rewita was told to go and refused to do on one occasion, and on the second occasion he sent a text to his partner to pick him up, which she did, and then when an argument broke out she complained to police of a breach.[43] By contrast, Mr Behan-Kitto repeatedly refused to leave the house, remained at the property for extended periods of time, returned to the address on two occasions (in relation to both breaches) and was threatening towards his partner and her mother. These breaches are significantly more serious than Mr Rewita's offending.It is worth noting, however, that Mr Rewita did commit a slightly more serious assault on his victim, by slapping, punching and kicking her, and was charged with assault with intent to injure.[44] I find that the starting point reached by the Judge was well within the range available to him. In light of the totality of Mr Behan-Kitto's offending, I do not consider a starting point of 30 months' imprisonment manifestly excessive.24 Compared with the sentences given for male assaults female charges in R v Coker CA421/04, 21 April 2005; R v Wereta [2017] NZHC 935; and Dockerty v Police [2012] NZHC 2500.Uplifts imposed[45] First, the Judge gave a nine month uplift for the 2 September charges of male assaults female and the second protection order breach, to reach a totality starting point. In doing do, the Judge recognised that there was an element of premeditation to this offending, as Mr Behan-Kitto lured the victim into the basement garage with the purpose of harming her. His assault also prevented her from talking and breathing for a short time, the victim was pregnant at the time, and the incident only ceased from becoming more violent because the victim struggled and one of the children interrupted.[46] The Judge took into account as a further aggravating factor, that the victim was pregnant. He considered that this was significant, because Mr Behan-Kitto prevented her from breathing for a short time and she found the grabbing of her face as the scariest part of the incident. The Judge specifically referred to Waitai v R, to reinforce the seriousness of the assault on a pregnant woman.25 In Waitai, Katz J said:26a physical attack against a pregnant woman by the father of her child isparticularly reprehensible. The victim's pregnancy made her particularlyvulnerable. Depriving a pregnant woman of oxygen risks harming not only her, but also the child.[47] I consider the Judge was correct to mark society's condemnation of such behaviour against a vulnerable victim.[48] The nature of the two offences on 2 September justified an uplift of ninemonths' imprisonment from the starting point, in order to appropriately reflect thetotality of the offending.[49] Second, in taking into account the gravity of the index offending, the Judge had regard to Mr Behan-Kitto's early 2016 offending against the victim. The Judgereferred to both the Mitchell and Crean decisions in support of the proposition that assessing the culpability of Mr Behan-Kitto's conduct includes the backgroundhistory of offending, particularly the previous breaches of protection orders.25 Waitai, above n 9.26 At [25].[50] In light of the decisions in Mitchell v R and Crean v Police, it was open to the Judge to take into account Mr Behan-Kitto's previous domestic violence offending against his partner in early 2016. These previous offences are very relevant to the current sentencing because the offences include two protection order breaches, a male assaults female charge and a charge of threatening to kill/do grievous bodily harm.[51] The current offending is similar and in fact more serious than the 2016 offending with the addition of the burglary charge, as Mr Behan-Kitto demonstratedhis ability to force entry into the victim's house. As the Judge identified, the early 2016 offences illustrate Mr Behan-Kitto's culpability and intention, as well as thegravity of his current offending.27[52] In Crean, further uplifts were made to account for other previous convictions, which were not included for the purpose of assessing the starting point. Brewer J said:28Although I have already taken into account Mr Crean's previous convictionsfor breaching protection orders in setting the starting point, I note that Mr Crean has a number of other relevant previous convictions It isappropriate to uplift Mr Crean's sentence to take into account theseconvictions because there is a particular need to deter him from violent offending [53] I consider the Judge's approach reflected the gravity of the previous pastviolent offending and the aggravating domestic violence convictions just months before.[54] Finally, the Judge was very careful not to double count the earlier 2016 domestic violence offences, when he made a further four month uplift to recognise Mr Behan-Kitto's other relevant violent offending in 2008, 2010 and 2011 and the fact this offending was committed while serving a previous sentence. I accept the Crown submission that the uplift of four months for Mr Behan-Kitto's other relevantprevious convictions and the fact that this current offending occurred while27 Behan-Kitto, above n 4, at [20].28 Crean, above n 8, at [21].Mr Behan-Kitto was subject to a sentence of supervision and community work was appropriate. I do not consider that the Judge's approach was in error.Methamphetamine use[55] The third ground of appeal is that the reference by the Judge to offending under the influence of methamphetamine as an aggravating factor was wrong. Ms Woodcock relies on Finau.29 The Judge included Mr Behan-Kitto'smethamphetamine use as one of six aggravating matters, in reaching his initialstarting point of 21 months' imprisonment for the 5 September offending.[56] The Judge referred to the pre-sentence report for the purposes of sentencing, in which the level of Mr Behan-Kitto's family violence offending is noted asescalating in seriousness and frequency. He told Corrections that his use of methamphetamine has escalated in the past two and a half years and that was the explanation for his offending. In addition Mr Behan-Kitto wrote to the Judge saying:I acknowledge that what I did was irresponsible and wrong. I now know it was all to do with my horrible previous drug addiction.[57] The Judge identified methamphetamine use as one of six aggravating features of the burglary offending in reaching his starting point, for the offending on 5 September 2016, as 21 months' imprisonment. The overall starting point adoptedtherefore took into account all of the circumstances of the offending.[58] In Finau, the Court of Appeal expressed difficulty with a reference by a sentencing Judge to alcohol and illicit substances being an aggravating factor. The passage is as follows:[16] There is also difficulty with a reference by the Judge to alcohol and illicit substances being an aggravating factor. Certainly these matters were not mitigating but it is not conventional to regard them as justifying an uplift from a properly determined starting point; albeit with respect, we are not sure on what basis the Judge reached his starting point for either of the two offences.29 Finau, above n 15, at [16].[59] It appears that in Finau the use of alcohol and illicit substances was not taken into account in reaching the starting point but was used to justify an uplift. In this case, the starting point included the influence of methamphetamine as an aggravating factor. It was one of six aggravating factors and no additional uplift was imposed for methamphetamine use specifically. In any event, s 9(4) of the Sentencing Act 2002 enables the Court to take into account any other aggravating or mitigating factor that the Court thinks fit.[60] I do not consider any error has resulted from the inclusion of this factor as an aggravating feature of the offending. It was appropriate in the circumstances of this case to identify methamphetamine use as one of the features of the offending, and a pattern of Mr Behan-Kitto's offending specifically, for which an appropriate starting point was reached.Result[61] There has been no error by the sentencing Judge.[62] The sentence of two years and one months' imprisonment is not manifestly excessive.[63] The appeal is dismissed.Cull J