STRETCH v POLICE [2016] NZHC 1713

STRETCH v POLICE [2016] NZHC 1713 [27 July 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000176[2016] NZHC 1713IN THE MATTER OF an appeal against sentenceBETWEEN WARREN RICHARD STRETCHAppellantAND NEW ZEALAND POLICERespondentHearing: 25 July 2016Counsel: T Massyn for the AppellantS A Wilson for the RespondentJudgment: 27 July 2016JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 27 July 2016 at 11.00 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Public Defence Service, AucklandMeredith Connell, AucklandIntroduction[1] Mr Stretch appeals against his sentence of three years and three months'imprisonment for charges primarily relating to violent offending against four childrenin his care.1 He appeals on the grounds that the end sentence was manifestly excessive;that cumulative sentences were inappropriately imposed; and the Judge failed to takeinto account mitigating factors.Background[2] Mr Stretch pleaded guilty to 18 charges relating to offending against fourchildren (T, C, A and D) aged between five and 13 at the time of the offending. Thecharges were:(a) Two charges of injuring with intent to injure, both against T;2(b) Nine charges of assault against a child: one against T, four against C;three against A and one against D;3(c) Four charges of assault with a weapon; two against C and two againstA;4(d) One charge of assault with intent to injure relating to D; and5(e) Two charges of supplying cannabis to T and C.6[3] The four victims were the children of a family member. Mr Stretch and hiswife took custody of them in May 2009, and the offending occurred betweenMay 2010 and August 2014.1 Police v Stretch [2016] NZDC 7864.2 Crimes Act 1961, s 189(2); maximum penalty five years' imprisonment.3 Crimes Act, s 194(a); maximum penalty two years' imprisonment.4 Crimes Act, s 202C; maximum penalty five years' imprisonment.5 Crimes Act, s 193; maximum penalty three years imprisonment.6 Misuse of Drugs Act 1975, s 6(1)(d); maximum penalty, eight years' imprisonment.Offending against T[4] The first charge of injuring with intent to injure occurred at some point between1 April 2014 and 1 June 2014. Mr Stretch started yelling at T after learning that shehad been missing school. T went to stand behind Mr Stretch's wife. Mr Stretchstepped towards T and punched her in the side of the head with a closed fist, causingher head to hit the wall. He then punched her in the nose with a closed fist, causingblood to splatter up the wall behind her. A family member intervened and took T intothe bathroom. The assault caused a bloody nose and bruising to T's lips.[5] The second charge of injuring with intent to injure occurred at some pointbetween 4 July 2014 and 21 July 2014. Mr Stretch threw T against the wall and thenpunched her twice in the nose with a closed fist, causing her to fall to the ground. Hestood over her, punching her approximately twice in the side of the head and threetimes to the chest. He also kicked her at least two times in the backside. The offendingcaused T a bleeding nose and bruising all over her body.[6] The charge of assaulting a child occurred between 1 January 2014 and31 March 2014. T had started going out with a male. Mr Stretch became angry aboutthis and punched T repeatedly on the arms with a closed fist, causing large bruises.Offending against C[7] Mr Stretch's first charge against C of assaulting a child occurred between1 August 2010 and 30 September 2013. On multiple occasions, Mr Stretch hit C onthe hand with a wooden spoon. This caused C's hands to turn pink and sting.[8] Mr Stretch's first assault with a weapon charge occurred between 1 May 2011and 28 August 2014. On multiple occasions Mr Stretch hit C with a belt. A black beltwith studs was most commonly used.[9] The second charge of assault of a child against C occurred over the periodbetween 1 January 2011 and 31 October 2013. On more than one occasion Mr Stretchpulled C's ears, sometimes lifting him off the ground. This caused C's ears to turn redand on some occasions to bleed.[10] The second assault with a weapon charge occurred between 1 January 2014and 28 August 2014. On multiple occasions the defendant hit C on the lower leg witha tree branch causing a red mark.[11] Another charge of assaulting a child arose from events occurring between1 March 2010 and 28 August 2014. On multiple occasions Mr Stretch slapped Cacross the back of the head, on the palms or back of his hands, and kicked him in thebuttocks or lower legs. The slaps caused his head to hurt, his hands to sting and hislegs to have red marks.[12] The final assault charge against C related to offending between 1 May 2010and 28 August 2014. Mr Stretch punched C on multiple occasions on the arm with aclosed fist. On other occasions he hit him with a jandal on the calf, palm or back ofthe hand.Offending against A[13] The first assault charge related to 26 May 2011 to 30 September 2013.Mr Stretch hit A multiple times. On one occasion this caused a small bruise on herback.[14] The second assault charge related to offending between 1 February 2014 and28 August 2014. On one occasion Mr Stretch kicked A a number of times on her thighsand calves. The third charge related to offending between 26 May 2011 and 28 August2014. On multiple occasions Mr Stretch hit A with a jandal.[15] Both charges of assaulting A with a weapon occurred between 1 February 2014and 26 May 2014. The first charge relates to an occasion when Mr Stretch asked oneof the other children to get the belt and he then hit A on the front of her thighs andback of the calves causing a bruise on her left thigh and a small bruise on her calf. Thesecond charge concerned two occasions when Mr Stretch hit A on the buttocks with atree branch.Offending against D[16] The charge of assaulting D with intent to injure occurred between 1 January2014 and 28 August 2014. Mr Stretch backhanded D in the eye and nose causing hisnose to bleed.[17] The charge of assaulting D occurred between 8 August 2014 and 28 August2014. On one occasion Mr Stretch hit D in the stomach.Supplying cannabis[18] The charges of supplying cannabis occurred at some point between 1 January2014 and 28 August 2014. T regularly smoked cigarettes in the company ofMr Stretch. Mr Stretch told C that he would give him some cannabis if he kept T'scigarette smoking quiet. He passed C and T a can which had been converted into abong, and told the children to inhale the smoke coming out of it. Both did this atMr Stretch's instruction.District Court sentencing[19] After referring to the conduct leading to the charges, the Judge then turned toconsider the aggravating features of the offending. He considered there were ninesuch features, including the pattern of violence, the vulnerability of the children, thefour and a quarter years over which the offending took place, the breach of trustinvolved, and nature of the violence involving attacks to the head in some instances.[20] The Judge then referred to Mr Stretch's personal circumstances. Mr Stretch is52 years old and was assessed as having a medium risk of reoffending, a high risk ofharm to others, and a low level of remorse and insight. The factors contributing tohis offending were his lifestyle, drug use, propensity for violence, attitudes and senseof entitlement.[21] The Judge also referred to the fact that Mr Stretch had completed aHigher Ground course and had made good progress. A letter from Care New Zealandset out Mr Stretch's family situation, in particular that his wife had significant surgeryand was then in convalescence, and his daughter was diagnosed with a serious illness.This saw Mr Stretch relapse into alcohol and cannabis use in 2014 which saw a spikein violence. The Judge observed that there was a pattern of intergenerational abuse,violence, and problematic substance use and that Mr Stretch had perpetrated a patternof substance abuse and anger in his life.[22] The Judge referred to the Court of Appeal's observations in R v Wilson thatsentencing in family violence related situations can be notoriously difficult but forpersistent and repeat offending little sympathy is held.7 Relying on the Court ofAppeal's decisions in R v P and R v Te Amo, the Judge noted the appropriateness ofcumulative sentences and undertook the sentencing exercise by setting a starting pointin relation to the offending against each victim.8[23] After going through that exercise, the Judge noted that the total starting pointfor all offenders was 95 months or 7.92 years. He stated:9Quite clearly that is way in excess of where it should be at the end of the day,but nonetheless, if I was dealing with each of those individually, that's whereI would arrive at.[24] The Judge then applied a 20 per cent discount to the starting point adopted foreach child for remorse and personal circumstances. The maximum discount of 25 percent for the guilty plea was also applied.[25] The final step in the sentencing exercise involved considering the totality ofthe sentence. The Judge was satisfied that he should adjust the end points reached totake into account totality and he did so in relation to each victim.7 R v Wilson [2004] 3 NZLR 606 (CA).8 R v P [2008] NZCA 476; R v Te Amo CA435/00, 29 March 2001.9 At [50].[26] Crown counsel helpfully provided a table summarising the methodology usedto determine the sentence reached in relation to the offending against each victim, andthe structure of the end sentence imposed. A copy of that table, with some minormodifications, is attached to this judgment.Approach on sentencing[27] Section 250(2) of the Criminal Procedure Act 2011 provides that the Courtmust allow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[28] In any other case, the Court must dismiss the appeal.10 An appeal court willnot intervene unless there is a material error, and if so, the appeal court will then goon to form its own view of an appropriate sentence.11[29] The Court of Appeal has also held that despite s 250 making no expressreference to "manifestly excessive", this principle is "well-engrained" in the Court'sapproach to sentence appeals.12 Whether a sentence is manifestly excessive is to beexamined in terms of the end sentence given, rather than the process by which thesentence is reached.13Starting point[30] On behalf of Mr Stretch, Ms Massyn submits that the starting point adopted bythe Judge of 95 months' imprisonment was excessive. Ms Massyn submits that ifcumulative sentences are to be imposed, they must not result in a total period ofimprisonment that is out of all proportion to the gravity of the offending. She also10 Criminal Procedure Act 2011, s 250(3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [35].13 Ripia v R [2011] NZCA 101 at [15].submits that the 12 months uplift for the other violent offending against T, and the fourmonth uplift for the cannabis offending in relation to T, was excessive.[31] I consider the Judge's approach by assessing the starting point for the offendingagainst each of the victims was appropriate in this case.[32] As noted by the Judge, the Court of Appeal has approved the imposition ofcumulative sentences in cases involving acts of family violence, occurring at differenttimes, against different family members. That approach reflects the importance ofrecognising that each victim should see that the offending against them has receivedthe appropriate separate penalty, and that a concurrent sentence is not interpreted as alicence to repeat domestic assaults.14[33] The cases cited on behalf of Mr Stretch do not warrant a departure from thisprinciple. In R v Mwai, the Court of Appeal accepted that a cumulative sentence wasappropriate given the offending was against multiple victims and despite the fact thatthe offending was of a similar nature.15 The Knox and Wilson cases cited do notdiscuss the question of whether cumulative sentences would have been appropriateand so do not bear upon the issue on appeal.16[34] The comparison of the total starting point of 95 months reached by the Judgewith other starting points in cases not involving multiple victims, and in which adifferent methodology has been followed, is not a fair comparison. As the Judgeexplicitly recognised, the 95 months adopted was excessive and it was for that reasonsignificant adjustments were later made to ensure the overall sentence wasproportionate to the gravity of the offending.[35] The starting point and uplift adopted for the offending against T was withinrange in my view. The offending against T involved a number of aggravating factors.The offending was against a child; it involved a breach of trust by Mr Stretch who wasin a parental role; the violence involved attacks to the head; the violence was such thaton one occasion it required the intervention of a third party; the physical injuries14 R v P, above n 8 at [31]; R v Te Amo, above n 8, at [8]; S v R [2011] NZCA 178.15 R v Mwai [1995] 3 NZLR 149 (CA).16 R v Knox HC Wellington CRI-2007-085-30, 3 June 2008; R v Wilson, above n 7.suffered included bleeding and bruising to such an extent that T was unable to attendschool; and the offending occurred on multiple occasions over a four year period.[36] Given those aggravating features, I agree with the Judge that the offendingdefinitely fell within band 2 and may also have extended into band 3 of Nuku v R.17[37] The uplift of four months for the cannabis offending was also appropriate giventhat the offending involved directing T to smoke cannabis and the drug was effectivelyused as a bribe.[38] Overall, I am not persuaded that the approach the Judge took in fixing a startingpoint for the offences against each victim was in error. In any respect, the approachon appeal is to consider the end sentence reached, rather than the methodology bywhich the end sentence was determined.Mitigating factors not taken into account[39] The second ground of appeal is that the District Court Judge failed to take intoaccount Mr Stretch's participation in the Family Violence Court in the WaitakereDistrict Court, that he was on strict bail conditions for a long period of time, and thathe indicated a desire to attend a restorative justice process.[40] In oral submissions, Ms Massyn submitted that a further seven monthsdeduction (one month credit for agreeing to attend a restorative justice conference, andsix months for the restrictive bail conditions and other factors) should have been madeover and above the 20 per cent allowed by the Judge.[41] The Judge was fully aware of the Family Violence Court programmes attendedby Mr Stretch and referred to his progress in his sentencing notes. The 20 per centdiscount took into account this factor. I reject Ms Massyn's suggestion that caseswithin the Family Violence Court result in a more lenient sentence which should alsoapply here. There is no basis upon which to depart from the standard methodology in17 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.sentencing where factors such as attendance at programmes are taken into account inadjustments for personal mitigating factors.[42] Nor am I persuaded that a further discount should have been granted forrestrictive bail conditions, or attendance at the counselling programmes for longperiods of time. Mr Stretch's bail conditions required him not to consume alcohol ornon-prescribed drugs and to submit to breath-testing. Those conditions are notonerous in my view, and certainly do not compare to restrictive curfew conditionswhich can sometimes justify a separate discount. A discount for attendance at thecounselling programmes was already incorporated into the sentence and furtherdiscount would risk double counting for that factor.[43] In terms of a restorative justice conference, I was informed from the bar thatsuch a conference was ordered, but ultimately declined by the conference provider.Reasons for declining the conference were not provided. A credit for a desire to attendsuch a conference in those circumstances is not appropriate in my view. It is also notappropriate to give a discount on the basis of what might have happened had such aconference been convened. I consider the 20 per cent discount for remorse and otherfactors, combined with the 25 per cent discount for the early guilty plea, adequatelyreflect Mr Stretch's remorse for the offending caused.[44] Although the loss of Mr Stretch's wife is not specifically referred to in theJudge's sentencing notes, there is reference to the difficult personal and familycircumstances faced by Mr Stretch which are included in the 20 per cent discount. Iam not persuaded that there is a material error in not specifically adjusting for therecent death of Mr Stretch's wife.[45] I am not satisfied therefore that the Judge erred in any significant way inapplying a 20 per cent discount for personal mitigating factors and there is no basis tointerfere with the end sentence.End sentence[46] Overall I am not persuaded that the end sentence imposed by the Judge wasmanifestly excessive. I consider the end point reached and the construction of thevarious sentences was within range and there is no basis upon which to disturb thatsentence.Result[47] The appeal is dismissed.Edwards JVictim Starting point for theoffending ([45]-[51])Discounts ([51]-[54])Guilty plea([51-54), Totality [56] End Sentences ImposedT Initial starting point oftwo years (lead chargeof injuring with intentto injure).Uplifted by 12 monthsfor other violentoffending against T.Uplifted by fourmonths for supply ofcannabis.Total starting point of40 months.20 per cent forremorse andpersonalcircumstances.Reduced to 32months.25 per centdiscount given.Reduced to 24months.Reduced bysix months(25 per cent)to 18months.Injuring with intent to injure T (x2 charges), 18 months'imprisonment (CRN2150-2161).Supplying cannabis, four months' imprisonment(CRN2152).Assaulting a child, six months' imprisonment(CRN2183).All sentences to be served concurrentlyC Initial starting point of14 months (leadcharge of assault witha weapon).Uplifted by 14 monthsfor other violentoffending against C.Uplifted by fourmonths for supply ofcannabis.Total starting point of32 months.20 per cent forremorse andpersonalcircumstances.Reduced to 25.6months25 per centdiscount given.Reduced to 19months (roundeddown from 19.2months).Reduced bysix months(31 per cent)to 13months.Supplying cannabis, four months' imprisonment(CRN2151)Assault with a weapon, 13 months' imprisonment(CRN2157)Second charge of assault with a weapon, 13 months'imprisonment (CRN2187)Assault on a child (x4), six months' imprisonment each(CRN2169-70, 2178-79)The first assault with a weapon charge is to be servedcumulatively on CRN2160All other sentences to be served concurrently.A Initial starting point of10 months (assaultwith a weapon).Uplifted by eightmonths for otherviolent offendingagainst A.Total starting point of18 months.20 per cent forremorse andpersonalcircumstances.Reduced to 14.4months.25 per centdiscount given.Reduced to 10months (roundeddown from 10.8).Reduced byfour months(40 per cent)to sixmonths.Assault with a weapon, six months' imprisonment(CRN2156).Assault with a weapon and assault on a child, six months'imprisonment (CRN2159, 2164-2165, 2172).Assault with a weapon is to be served cumulatively onCRN2157.All other sentences to be served concurrently.D Total starting point offive months.20 per cent forremorse andpersonalcircumstances.Reduced to fourmonths.25 percentdiscount given.Reduced to threemonths.Reduced byone month(33 per cent)to twomonths.Assault with intent to injure, two months' imprisonment.Assault on a child, two months' imprisonment(CRN2162).Assault with intent to injure is to be served cumulativelyon CRN2156All other sentences to be served concurrently.Total Global starting pointwould have been 95months, if dealing witheach of the victimsindividually.Total end sentence is 39 months' imprisonment,composed of:• 18 months for injuring with intent to injure(CRN2160) (as lead charge)• 13 months' imprisonment for assault with aweapon (CRN2157) (cumulative)• Six months' imprisonment for assault with aweapon (CRN2156) (cumulative)• Two months' imprisonment for assault withintent to injure (CRN2153) (cumulative)