IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CRI-2022-409-3
CRI-2022-409-4 [2022] NZHC 879	

BETWEEN	JOSHUA ADAM RAWLINGS
Appellant	
AND	THE QUEEN
Respondent	

Hearing:	28 April 2022	
Appearances:	K White for Appellant
G Alloway for Respondent	
Judgment:	28 April 2022	

ORAL JUDGMENT OF OSBORNE J

RAWLINGS v R [2022] NZHC 879 [28 April 2022]

Introduction

[1]	Mr Joshua Rawlings was sentenced1 by Judge Garland to 29 and a half months’ imprisonment on charges of wilful damage,2 common assault,3 unlawful possession of ammunition,4 contravening a protection order5 and failing to comply with a protection order.6

[2]	Mr Rawlings seeks leave to appeal the sentence on the basis it was manifestly excessive.

Leave to appeal

[3]	Leave to appeal out of time will be granted. The modest lateness of the filing of the appeal was caused partly by Mr Rawlings’ imprisonment and partly by the occurrence of the Christmas vacation. Leave is justified.

Facts — using a document charge

[4]	The police summary of facts stated the victim in relation to the use of a document for pecuniary advantage left their bag unattended at the Margaret Mahy Playground. It was subsequently taken. It contained the victim’s debit card. Between 1:32 pm and 1:50 pm on Wednesday 1 January 2020, Mr Rawlings used the card seven separate times at two service stations and at an ATM machine to obtain sundry items and cash totalling $1,558.50.

Ammunition and non-compliance charges

[5]	Mr Rawlings is the respondent to a final protection order issued in December 2012. His ex-partner is the victim and the protected person under that order. Under the order, he was not to possess or control any weapon.

1	Police v Rawlings [2021] NZDC 21606.
2	Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment.
3	Crimes Act 1961, s 196; maximum penalty one years’ imprisonment.
4	Arms Act 1983, s 45(1); maximum penalty four years’ imprisonment.
5	Family Violence Act 2018, ss 90(a), 9 and 112(1)(a); maximum penalty three years’ imprisonment.
6	Family Violence Act, ss 98, 9 and 112(1)(b); maximum penalty three years’ imprisonment.

[6]	The Crown summary of facts stated that, on 5 April 2020, Mr Rawlings left his home address in Aranui at approximately 11:00 am. Police attended the address at that time for an unrelated matter. They located a .177 calibre air pistol and eight .22 calibre bullets. Mr Rawlings did not possess a firearms licence. That meant that he was not complying with the protection order and that he was also unlawfully in possession of ammunition.

Assault damage and contravention charges

[7]	On 15 October 2020, at approximately 3:00 pm, Mr Rawlings was asleep on the victim’s couch at an address in Woolston. She woke him and asked him to leave. He became aggressive and refused. He pulled her to the ground by her hair then punched her with a closed fist in the back of her head, leaving her dizzy on the floor. He put his hand around her throat and held her back. She attempted to defend herself and was punched again by Mr Rawlings. He walked outside and continued to verbally abuse her. She asked him to leave the property. He continued to be aggressive and refused to leave, punching a window in the dining area and breaking it. He fell back against her car, causing some more damage. He then left the property.

[8]	The victim suffered a lump to the back of her head and scratches on her neck.

[9]	Mr Rawlings’ explanation that he swung his arm back to push the victim’s hand away from him, seemingly denying the punch, was recorded. He admitted breaking the window.

District Court decision

[10]	The Judge first assessed a starting point for the lead charges of assault, damage and contravention. As aggravating factors, the Judge took into account the attack on the head, the significant harm both emotional and financial to the victim, her vulnerability, the damage to property and the occurrence of the offending while a protection order was in place.

[11]	The Judge adopted a starting point of 18 months’ imprisonment for this offending.

[12]	Next, his Honour turned to the ammunition and non-compliance charges. The Judge did not, in starting with the 18 month imprisonment period, expressly refer to the fact that the offending occurred while the defendant was on bail for earlier matters. That is a matter that clearly the Judge was entitled to take into account and this Court should on appeal.

[13]	Next his Honour turned to the ammunition and non-compliance charges. The Judge considered as aggravating factors the fact that Mr Rawlings possessed an air pistol, the fact he possessed bullets and that those items were found in a bag in a child’s room in the house.

[14]	Bearing in mind the totality principle, the Judge adopted a starting point of six months’ imprisonment for these charges.

[15]	Finally, the Judge considered the representative charge of using a document dishonestly. The Judge found there was a moderately high level of premeditation and considered the amount stolen ($1,558.60). He considered in detail the substantial impact of the theft on the victim. The Judge considered a starting point of nine months’ imprisonment would be appropriate were this offence being considered alone but, having regard to the totality principle, reduced it to six months.

[16]	Overall, the Judge therefore adopted a starting point of two and a half years’ imprisonment. His Honour then turned to aggravating and mitigating factors personal to the defendant.

[17]	The Judge imposed an uplift of six months (20 per cent) for Mr Rawlings’ criminal history, including for family violence offending against the same partner, breaches of protection orders, damage to property and dishonesty offending.

[18]	The Judge adopted a discount of 20 per cent for Mr Rawlings’ guilty pleas as suggested by both counsel. The pleas had been entered early in relation to some of the charges and late in relation to others. The Judge however, in applying the 20 per cent discount, took into account also the uplift for criminal history resulting in fact in a discount of approximately 23 per cent on the starting point. Two and a half months

credit was also given by the Judge for the time Mr Rawlings spent on EM bail. A period of some six to seven months but interrupted by at least one breach.

[19]	The Judge also made orders for reparation totalling $3,632.15. Outstanding fines of $11,370.50 were remitted with three months’ imprisonment substituted, resulting in an end sentence of 29 and a half months’ imprisonment.

Principles on appeal

[20]	Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9

Submissions

Appellant’s submissions

[21]	Ms White submitted the starting point adopted on the lead offending was stern but accepted it was within range if it reflected Mr Rawlings’ previous offending but in her submission, the subsequent uplift of 20 per cent for previous criminal history became disproportionate and excessive. She submitted the starting point of 18 months could only be justified by taking into account Mr Rawlings’ previous convictions. The additional uplift of 20 per cent was therefore in her submission an error.

7	Criminal Procedure Act 2011, ss 250(2) and 250(3).
8	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9	Ripia v R [2011] NZCA 101 at [15].

[22]	Ms White also submitted the previous convictions were dated and this was not taken into account by the Judge, the last of Mr Rawlings’ previous convictions dating back to 2014.

[23]	Ms White also submitted that an additional discount was appropriate based on Mr Rawlings’ personal circumstances. She sought leave to file fresh evidence: a psychological report by Craig Prince dated 25 March 2022 and two items of correspondence from Mr Rawlings’ mother.

[24]	In her written submissions, Ms White submitted a further discount of an unspecified amount should be allowed on account of the state of Mr Rawlings’ mental health and other circumstances and having regard to the considerations under s 27 of the Sentencing Act.

[25]	In her oral submissions, Ms White suggested an appropriate discount would be in the order of 20 per cent or more. I granted leave to Ms White, the Crown not opposing, to adduce the evidence of the psychologist but refused leave to adduce the evidence of the communications from Mr Rawlings’ mother, on the basis that the latter did not constitute fresh evidence.

[26]	Ms White also submitted that the three-month cumulative uplift imposed for remittance of Mr Rawlings’ fines was excessive. She submitted fines were usually remitted in favour of community work and she had located only one decision where imprisonment had been imposed instead. She submitted a period in the realm of two weeks in custody would have been more appropriate. She provided calculations for Mr Rawlings that the three-month uplift was equivalent to an hour in custody for every
$5.15 of fines whereas community work often replaces fines in a range of $31 to $179 per hour.

[27]	Bringing together Ms White’s submissions, the appropriate end sentence would be significantly reduced from that arrived at by the Judge.

Respondent’s submissions

[28]	Mr Alloway, for the Crown, submitted the Judge had not erred in relation to the starting points and uplifts. He submitted that the sentence was not manifestly excessive. However, he accepted the information contained in the psychological report now before the Court was relevant and ought to be taken into account, particularly in relation to evidence as to Mr Rawlings’ ADHD condition and experiences as a child viewing adult abuse.

[29]	Mr Alloway submitted the Judge’s starting point for the lead offending did not take into account previous convictions and was appropriate without regard to that offending. The Judge had clearly identified the uplift on account of previous convictions. In relation to the uplift for personal aggravating factors, he submitted that if the offending on bail was taken into account, the 20 per cent uplift was not excessive.

[30]	Mr Alloway submitted the Court might consider a 10 per cent credit for the personal mitigating factors raised in the fresh evidence.

[31]	He referred also to several decisions where a sentence of imprisonment or home detention had been lengthened when fines were remitted and submitted the Judge’s uplift of three months was stern but within range.

Analysis

Starting point — the lead offences

[32]	The first issue is whether the cumulative starting point adopted for the common assault, breach of protection order and wilful damage charges was appropriate or whether, as Ms White submitted, it could be justified only if it took into account Mr Rawlings’ previous offending.

[33]	Where cumulative sentences are imposed, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the offending.10 If

10	Sentencing Act, s 85(2).

concurrent sentences are imposed, the most serious must receive the penalty that is appropriate for the totality of the offending.11 When sentencing for several offences the Court must assess the offender’s overall culpability and determine the appropriate sentence for the totality of the offending.12

[34]	The cases of Manuel v Police, Davies v Police, Hamilton v Police, Apineru v Police and Rikihana v Police were referred to by the Judge.13

[35]	In Manuel v Police, the defendant was sentenced on charges of male assaults female, breaching a protection order and intentional damage. They punched the victim on the arm, causing a large bruise. She then left the house and, when she returned, the defendant was smashing up her house. On appeal a starting point of 19 months’ imprisonment was upheld.14

[36]	In Davies v Police, the defendant argued with the victim at her home address, accompanied by his brother. He grabbed her cell phone and threw it against a concrete driveway five times repeatedly, causing the phone to smash. He grabbed the victim by the arm and started to pull her up the road against her will, before releasing her. She returned to the house and he followed her. She asked him to leave and he refused. She then locked herself inside the bathroom. From this Mr Davies was charged with breaching a protection order, assault and wilful damage. In a later incident, the victim and her new partner were asleep in the victim’s bedroom. Mr Davies arrived at the address at about 4:30 am, approached the victim’s bedroom window and punched it, causing glass to shatter through her bedroom. As he was leaving the address Mr Davies smashed the windscreen, driver side window and wing mirror of a motor vehicle belonging to the victim’s new partner. From this Mr Davies was charged with wilful damage and breaching a protection order.

11	Sentencing Act, s 85(4).
12	R v Bradley [1979] 2 NZLR 262 (CA).
13	Manuel v Police [2015] NZHC 66; Davies v Police [2019] NZHC 2984; Hamilton v Police [2014] NZHC 2698; Apineru v Police [2014] NZHC 1969; and Rikihana v Police [2013] NZHC 711;
14	Manuel v Police, above n 13.

[37]	An overall starting point of 19 months’ imprisonment was imposed for both sets of offending, taking the second set as the lead offence due to the fact it was committed while Mr Davies was on bail for the first set of offending.15

[38]	In Hamilton v Police, the defendant was at the victim’s property and was being verbally abusive. She asked him to leave and he refused. She attempted to call the police but he grabbed the cell phone out of her hands and pulled it apart. He then pushed the victim forcefully against the wall in the hallway with two hands on her shoulders. Her nine year old son ran across the road to call the police. The defendant then ran from the address. He was sentenced on charges of breaching a protection order, male assaults female and breaching release conditions. A starting point of 12 months’ imprisonment was adopted on appeal.16

[39]	In Apineru v Police, the victim was at a relative’s home socialising with family. The defendant arrived uninvited, abused the victim verbally, stood over her and told her she needed to leave with him. She did so. He grabbed her by the arm while they were outside the property and took her to a nearby empty state house. The pair then left and spent the night at Mr Apineru’s house. A starting point of 24 months’ imprisonment was adopted on a charge of breaching a protection order, though this starting point accounted for previous convictions and offending against the same victim, including three previous protection order breaches.17

[40]	In Rikihana v Police, the defendant and victim continued living together on and off notwithstanding the existence of a protection order. They had an argument while washing dishes. She scolded him and left the room. He followed her, pushed her onto a chair, held her by the neck and pushed his thumbs into her throat to a point where she felt like she was losing consciousness. She tried to leave the house and was blocked by him. After a time he relented, a neighbour intervened and police were called. Mr Rikihana pleaded guilty to one charge of male assaults female and one charge of breaching a protection order. A starting point of 15 months was adopted by the Judge and not challenged on appeal.18

15	Davies v Police, above n 13, at [41]–[43].
16	Hamilton v Police, above n 13.
17	Apineru v Police, above n 13.
18	Rikihana v Police, above n 13.

[41]	Having regard to those cases, I do not accept Ms White’s submission that the 18 month starting point adopted by the Judge on the lead offences was justified only if it took into account Mr Rawlings’ previous convictions. The level of physical violence in this case was higher than that in any of the cases I have referred to aside from Rikihana. It follows that I agree with the Judge’s assessment that the level of violence here was more serious than that in Davies. Manuel, to me, is the most analogous case given the level of violence and property damage in that case. Additionally, there is in this case the added element that the same victim was involved. Apineru is not of great assistance because of the different approach to sentencing. I find a starting point of 18 months to have been within range for the lead offending.

[42]	No issue was taken with the cumulative starting points for Mr Rawlings’ further offending, nor with the allowances for totality.

Uplift for personal aggravating factors

[43]	That this offending occurred while Mr Rawlings was on bail is not relevant to an uplift for personal factors. That is an aggravating factor of the offending which I find is part of the justification of the 18 months starting point. It follows that I reject Mr Alloway’s submission the uplift was appropriate as it accounted in part for the fact the offending occurred on bail.

[44]	Mr Rawlings’ previous convictions for three breaches of protection orders involved the same victim in 2013. He also had numerous assault convictions: male assaults female (2013), assaults police (2007) and common assault (1997, 1999, 2001, 2001). An uplift for previous convictions will not be imposed merely because previous convictions exist. It must be because they indicate a tendency by the offender to commit such offences, to be a recidivist or a need for particular deterrence or protection of the public.19

[45]	I do not consider the aged convictions for violence against different victims justify an uplift. I accept Ms White’s submissions that much of this offending occurred

19	Beckham v R [2012] NZCA 290 at [84].

when Mr Rawlings was between 17 and 21 and I accept, given the substantial gap in his criminal history, there is no pattern of consistent violent offending.

[46]	However, I agree with the Judge that the fact the previous breaches of protection orders (and it seems the male assaults female) related to the same victim justified an uplift. It demonstrated a propensity on the part of Mr Rawlings to offend including violently against this particular victim. But given the nature of these convictions and the length of time that has passed, a 20 per cent uplift in my judgement was excessive. In Rikihana v Police the previous offending against the same victim was closer in time and involved two convictions for violence rather than one. The uplift in that case was two months.20 I consider something similar here would be justified. I find a 10 per cent uplift appropriate.

Personal mitigating factors

[47]	Mr Alloway did not oppose the leave sought in relation to the psychological report, as I have said, and I have had close regard to it. I agree that Mr Prince’s material could have been obtained for sentencing and was therefore not “fresh” but it is important evidence and it is just that it be admitted.

[48]	The report details Mr Rawlings childhood. In particular, it identifies that he was subjected to physical violence by his mother and her partners and that, at times, he would hide and sleep in the dog kennel or clothing bins. He disclosed feelings of inadequacy and resentment as a result.

[49]	Mr Rawlings had considerable trouble at school. He was expelled after only four months at high school. Mr Prince finds a diagnosis of ADHD, while not formally diagnosed, to be likely to be appropriate. Mr Prince noted that Mr Rawlings had previously been prescribed medication for the condition but took it for only a week. He then ran away from home and went to live with a friend, feeling more loved and cared for there than he ever did at home.

20	Rikihana v Police, above n 13.

[50]	Mr Rawlings has also reported that his father abused alcohol and was not available emotionally. A theme of Mr Prince’s report is that Mr Rawlings’ suffered from a lack of positive male role models.

[51]	Mr Rawlings indicated and medical notes confirmed that he suffered considerable anxiety after the Christchurch Earthquakes, when he witnessed someone’s fatal injuries.

[52]	Mr Rawlings disclosed considerable substance abuse issues. He began consuming alcohol at 12 and from then into his 20’s he abused alcohol several days a week, often to the point of intoxication stupor. He appears to have controlled his alcohol abuse around age 30.

[53]	Mr Rawlings also used methamphetamine in his 20’s, but after appreciating he was addicted, he stopped using the drug. He broke away from the peers he was associating with. He stated that he did not use the drug for almost 10 years but lapsed into periods of binge use, especially after relationships ended. The report indicates that periods of substance abuse, especially methamphetamine, coincided with emotionally trying events such as the earthquakes, relationship breakdowns and, laterally, the COVID-19 lockdown. His previous offending against the victim occurred in the years immediately after the earthquakes. It also indicates he and the victim used methamphetamine together. Mr Prince noted, although Mr Rawlings denied using methamphetamine in the leadup to his offending (believing this would land him in more trouble), the contemporary medical notes stated he was using one gram every two days.

[54]	Mr Prince opined that there was enough evidence to conclude Mr Rawlings has struggled with ADHD throughout his life, was exposed to childhood adversity and failed to develop effective coping skills. He also indicated that the extensive substance use would have compounded those difficulties, though allocating proportionately between these factors is impossible. In his opinion, the ADHD condition and the use of methamphetamine are relevant to the index offending.

[55]	With this in mind I accept that aspects of Mr Rawlings’ background, particularly those relating to his ADHD condition and what he witnessed and was involved in as a child at the hands of adults, has had a causal relationship to the offending which is now the subject of this appeal. I accept Mr Alloway’s submission that those aspects of Mr Prince’s report which focus on alcohol and/or drug abuse are more difficult to link causatively if at all to the offending. But it is clear from Mr Prince’s report that the ADHD aspects and what may be called child abuse (albeit it not directly on this person) are relevant as causative issues in his offending. They speak volumes about the need for Mr Rawlings’ rehabilitation and reintegration into society.

[56]	I consider a discount of 15 per cent would have been appropriate to recognise these factors. That figure might be seen as comprising a 10 per cent discount for background disadvantage more generally but with a five per cent discount particularly for the ADHD condition. But it is a cumulative assessment involving a 15 per cent discount.

[57]	None of this discount would have been justified on the basis of the information before the District Court, it is only Mr Prince’s fresh evidence that brings it to bear.

[58]	Given the cases referred to by Mr Alloway, I consider a two-month uplift in remittance of Mr Rawlings’ fines would have been more appropriate. A two-month uplift for $13,824 of fines was imposed in Brand v The Registrar of Collections at New Plymouth21 and similarly two months was imposed for $9,152.83 in Herlund v Police.22

[59]	I then must turn to calculate the term of imprisonment which is indicated by the conclusions I have reached on the various factors. The starting point of 30 months’ imprisonment has to be reduced by 25 per cent to take into account three factors:

(a)	a discount of 20 per cent for guilty pleas;

21	Brand v The Registrar of Collections HC New Plymouth CRI-2008-443-25, 10 November 2008.
22	Herlund v Police [2013] NZHC 1531.

(b)	a discount of 15 per cent for personal factors; and

(c)	an uplift of 10 per cent for related criminal history.

[60]	That produces an end sentence of 22 months and two weeks imprisonment. That figure then has to be adjusted for two further elements:

(a)	an uplift of two months to represent cancelled fines; and

(b)	a reduction of two months and two weeks for time spent on EM bail.

[61]	The final term of imprisonment thereby indicated is one of 22 months. Standing back, I am satisfied that such was the appropriate term of imprisonment and that the sentence imposed (29 and a half months’ imprisonment) was, in light of the information now before the Court, manifestly excessive.

Orders

[62]	I order:

(a)	the appeal is allowed;

(b)	the sentences of imprisonment imposed in the District Court are quashed;

(c)	the appellant is in lieu sentenced to terms of imprisonment, each to be served concurrently as follows on the following charges:

(i)	contravening the protection order, 15 October 2020: 22 months’ imprisonment;

(ii)	not complying with the protection order, 5 April 2020: 12 months’ imprisonment;

(iii)	using a document: 6 months’ imprisonment;

(iv)	unlawful	possession	of	ammunition:	four	months’ imprisonment;

(v)	common assault: six months’ imprisonment; and

(vi)	wilful damage: one months’ imprisonment.

(d)	For the avoidance of doubt, it is confirmed that the reparation order and the forfeiture order, paragraphs [45]–[46] of the District Court judgment, stand.

Release conditions

[63]	Having delivered the foregoing judgment, counsel have addressed me on the release condition which ought to be imposed in relation to Mr Rawlings’ release. I impose the following release conditions which are to expire when Mr Rawlings’ sentence of imprisonment expires, namely:

(a)	Mr Rawlings is to attend and complete an appropriate programme to address family violence issues to the satisfaction of a Probation Officer. The specific details of the appropriate programme to be determined by a Probation Officer;

(b)	Mr Rawlings is to attend and complete any other intervention to address offending needs if so directed by a Probation Officer; and

(c)	Mr Rawlings is not to associate with or contact the victim of his offending without the prior written approval of a Probation Officer.

[64]	I direct the Deputy Registrar to ensure a copy of this judgment and a copy of Craig Prince’s report is forwarded to the Department of Corrections forthwith to

ensure that it is available to Corrections in the period that remains to be served by Mr Rawlings.

Osborne J

Solicitors:
Public Defence Service, Christchurch Crown Solicitor, Christchurch

ADDENDUM:

[65]	The release conditions at [63] above apply only to the sentences set out at [62](c)(i) and (ii) above.