WHIU v POLICE [2020] NZHC 298

WHIU v POLICE [2020] NZHC 298 [26 February 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2019-488-47[2020] NZHC 298BETWEEN WINDSOR ION WHIUAppellantAND NEW ZEALAND POLICERespondentHearing: 26 February 2020Appearances: M A Littlefair for the AppellantC Taylor For the RespondentJudgment: 26 February 2020ORAL JUDGMENT OF GORDON JSolicitors: Crown Solicitor, WhangareiRune Law, KaikoheIntroduction[1] The appellant, Windsor Ion Whiu, was sentenced to two years and threemonths' imprisonment on one charge of breach of release conditions,1 one charge ofbreach of protection order,2 and one charge of wilful damage3 after pleading guilty tothose charges. He now appeals against that sentence on the basis that the starting pointadopted was manifestly excessive.[2] Mr Whiu's notice of appeal is out of time but the respondent takes no issuewith that.Background facts[3] On 27 September 2019, at around 2.15 am, Mr Whiu went to the address of thevictim, who is the protected person under the protection order to which he is subject.Mr Whiu and Ms G are former partners and have three children together who are underthe care of Oranga Tamariki.[4] Mr Whiu entered the property while the victim was sleeping, yelling outsideher window and waking her. In response to the victim questioning why he was at theaddress, Mr Whiu said "I'm here to see if you are with another man." The victimclosed her window, telling Mr Whiu she did not wish to talk to him. When Mr Whiuadvised he wanted to talk to her about their children she went to the front door to speakto him. The conversation went on to other matters so the victim closed the front doorand contacted the police. Mr Whiu then kicked a rubbish bin, breaking it in half, ashe left the address. The police located Mr Whiu nearby soon after.[5] He admitted breaching the protection order and release conditions but said hewas invited into the address after arriving there. He told the police he got angry whenthe victim said she was going to call the police so he kicked the rubbish bin beforeleaving.1 Sentencing Act 2002, s 96(1). Maximum penalty: one year's imprisonment or a fine not exceeding$2000.2 Family Violence Act 2018, ss 90(b) and 112(1)(a). Section 112(1)(a) carries a maximum penaltyof three years' imprisonment.3 Summary Offences Act 1981, s 11(1)(a). Maximum penalty: 3 months' imprisonment or fine notexceeding $2,000.The District Court Decision[6] On 13 November 2019 Mr Whiu was sentenced in the Kaikohe District Court.4[7] Taking into account the repeated prior offences against the victim from 2014to 2019 (including assaults, threats to kill, and a burglary), and the psychological harmto the victim from the contact, the Judge adopted a starting point of two years for thebreach of protection order and wilful damage. Turning to the breach of releaseconditions, the Judge adopted a starting point of eight months on the basis thatMr Whiu has a history of eight convictions for breach of release conditions.[8] Overall, the Judge selected a starting point of two years and eight months.Setting aside Mr Whiu's previous violence against the victim and breach of releaseconditions as already assessed in the starting point, the Judge applied an uplift of threemonths for other convictions, taking the sentence to two years and 11 months'imprisonment.[9] The Judge then deducted the full 25 per cent discount for Mr Whiu's guiltypleas. This resulted in a final sentence of two years and two months.[10] However, the way in which the Judge constructed the final sentence was toimpose a sentence of nine months' imprisonment for the breach of release conditions,with a cumulative sentence of 18 months' imprisonment for the breach of theprotection order which made an end sentence of two years and three months.Two months' imprisonment on the wilful damage charge was to be servedconcurrently.[11] The Judge thus arrived at a final sentence of two years and three months, whichwas one month more than the two years and two months arrived at after deducting thediscount for a guilty plea.4 Police v Whiu [2019] NZDC 22688.Principles on appeal[12] Appeals against sentence are allowed as of right under s 244 CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied there hasbeen an error in the sentence and that a different sentence should be imposed.5 As theCourt of Appeal said in Tutakangahau v R, quoting the lower court's decision, a "courtwill not intervene where the sentence is within the range that can properly be justifiedby accepted sentencing principles".6 It is only appropriate for this Court to interveneand substitute its own views if the sentence being appealed is "manifestly excessive"and not justified by the relevant sentencing principles.7SubmissionsAppellant's submissions[13] Mr Littlefair for Mr Whiu submits that the total starting point for an overallsentence on all charges after all aggravating features and uplifts, should have been aslittle as six to seven months and no more than nine to 11 months maximum beforeproper discounts for matters such as an early guilty plea.[14] Mr Littlefair then submits that the total end sentence for all three charges withuplifts for aggravating features and after a full 25 per cent discount is applied, shouldaccordingly have been as low as/in the region of four to five months, and no more thanseven to eight months at its highest.Respondent's submissions[15] Mr Taylor for the respondent submits that the starting point of two years forthe breach of protection order and wilful damage, although stern, was within range.As to the breach of release conditions, Mr Taylor submits that having regard toMr Whiu's eight convictions for similar breaches, a starting point of eight months was5 Criminal Procedure Act 2011, ss 250(2) and 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].7 Ripia v R [2011] NZCA 101 at [15].appropriate. There was no error in imposing a cumulative sentence as the offendingwas different in nature and time.AnalysisBreach of a protection order: the starting point[16] There is no tariff case for this kind of offending. There is a helpful review ofa number of cases involving breaches of protection orders in the recent case ofThompson v Police. There Cull J said:8[19] As noted by this Court in Prince v New Zealand Police, the offencepotentially involves a wide range of conduct. In setting an appropriate startingpoint, the Court must identify the aggravating and mitigating factors of theoffending. This requires the Court to ask how serious the offending iscompared to other offending of that type and provides for consistency insentencing. Section 9 of the Sentencing Act provides a non-exhaustive list ofsuch aggravating and mitigating factors. For non-violent breaches of aprotection order the starting point may begin at around four months'imprisonment, with that starting point increasing depending on othercircumstances or aggravating factors.[17] While there was no physical violence involved in this case, there is the previousoffending against the victim. It is therefore necessary to stand back and view theoffending as a whole. As Lang J said in Reid v NZ Police,9 in those circumstances itis inherently difficult to adopt a R v Taueki based approach.10 Similar comments weremade by the Court of Appeal in Mitchell v R.11 Although in both those cases theprevious offending involved previous breaches of the protection order, I consider asimilar approach can be followed where the previous offending is for violence againstthe same victim.[18] The Judge referred to that offending as follows:[11] I take into account your previous offences, they are appalling againstthe same victim. You have assaulted her, threatened her, harassed her. In2014, three assaults, threaten to kill, you were jailed, 2015, a threat to kill,male assaults female, intentional damage, you were jailed, 2018, you burgledher house and assaulted her, you were given 18 months. 2019, you threatened8 Thompson v Police [2020] NZHC 20.9 Reid v NZ Police [2015] NZHC 299 at [9].10 R v Taueki [2005] 3 NZLR 372 (CA).11 Mitchell v R [2013] NZCA 583.to kill her, and you were given seven months and 14 days, all with releaseconditions. Now, here you are again.[12] Mr Littlefair says that what you did on this occasion was not to hit heror anything like that, but it is a cumulative effect on a victim of family violencewhich is so traumatic. She is terrified of you. You do not respect her, you donot respect the protection order. Her protection, in my view, in this sentencingis paramount.[19] In my view even taking into account the previous offending, the starting pointof two years is too high. There was no physical violence. The kicking of the rubbishbin occurred after Mr Whiu left the house. In my view a starting point of six months'imprisonment would be consistent with the cases discussed in Thompson bearing inmind that there is a history of violence against the victim. This offending is thereforemore serious than a first non-violent breach of a protection order.[20] I should add, in fairness to the District Court Judge, Mr Littlefair responsiblyacknowledged that he did not refer the Judge to any authorities to assist the Judge withsetting a starting point.Breach of Release Conditions[21] Again, there is no tariff case for this kind of offending. Examples of previouscases are as follows:(a) Rota v R:12 Mr Rota committed burglary and additionally failed toreport repeatedly. Rather than adding on a cumulative sentence ofsix months for the convictions, an uplift of four months was given tothe primary sentence for all three.(b) R v Wharepapa:13 Two breaches of release conditions by failure toreport were each given a month, concurrent with each other butcumulatively overall.12 Rota v R [2012] NZCA 49.13 R v Wharepapa [2009] NZCA 544.(c) R v Aramiz:14 A number of breaches of release conditions were dealt byway of an uplift of four months on the original charge.(d) Currie v Police:15 An independent starting point of three months'imprisonment was adopted by the Judge, for a large number of breachesand a long history of breaches.(e) Manuel v Police:16 Unusually, this regarded an independent case ofbreaching release conditions in a premeditated fashion. Three months'imprisonment was imposed.(f) Mason v Police:17 A case of total refusal to comply with releaseconditions. A two month uplift was adopted.[22] Sentences are around one to four months, with figures at the higher end of thatrange being given exclusively as uplifts on other crimes when a substantial discountcan be expected. Repeated breaches of release conditions by failing to report areunsurprisingly the only cases prosecuted, and there they are generally treated asconcurrent with one another.[23] The failure to report was described by the Judge as follows:[2] The release conditions continued for one year, three months and threedays after your release.[3] On 4 April 2019, you were sentenced to imprisonment again and on 8May you were released on nine months, three weeks and one day conditions.Sentenced to be served concurrently.[4] On 7 May 2019, you were fully told what was required of you. Yousigned the induction checklist confirming you understood the rules and therequirements of your sentence including the requirement to report to yourprobation officer when instructed.[5] On 14 June, you reported, and you were instructed to report again on18 June. On 18 June you did not turn up and you have not been back, so youreported once.14 R v Aramiz [2020] NZHC 78.15 Currie v Police [2019] NZHC 1946.16 Manuel v Police [2019] NZHC 816.17 Mason v Police [2018] NZHC 3387.[24] I consider the starting point of eight months was too high. I consider a sentenceof two months appropriate. That would bring the sentence to one of eight months'imprisonment.Aggravating and Mitigating Factors Personal to the Offender[25] Mr Whiu's prior offending (excluding the history of violence against the victimas already counted) includes a breach of community work (representative), intentionaldamage, breaches of conditions of intensive supervision and wilful damage. TheJudge imposed an uplift of a little less than 10 per cent. Considering Prince v Police,where only a minor uplift was applied, I consider a similar uplift of one month isappropriate.18 That would bring the sentence to one of nine months' imprisonmentbefore taking into account the guilty plea to which I now turn.Guilty Plea[26] Both counsel submit that a full 25 per cent discount is appropriate in this case.I agree.[27] This would bring the final sentence to six months, (rounded down from six andthree-quarter months).Result[28] The appeal is allowed and a final sentence of six months' imprisonment issubstituted. That is made up of four months' imprisonment on the breach of protectionorder and two months' imprisonment (cumulative) for the breach of release conditions,together with a concurrent sentence of one month's imprisonment on the wilfuldamage charge.___________________________________Gordon J18 Prince v Police [2019] NZHC 1742.