IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2015-442-000005 [2015] NZHC 194

BETWEEN	DAVID JOHN CHARLESWORTH
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	17 February 2015 (via AVL at Wellington)	

Counsel:	
C P Stevenson for Appellant
S K O'Donoghue for Respondent	

Judgment:	
17 February 2015	

JUDGMENT OF COLLINS J

Introduction

[1]       This  judgment  explains  why  I  am  dismissing  Mr  Charlesworth’s  appeal against a sentence of imprisonment imposed upon him by Judge Barry in the Nelson District Court on 26 January 2015.

[2]       Mr Charlesworth was sentenced to three months’ imprisonment in relation to two breaches of protection orders which prohibit him from having unsupervised contact with his two daughters.1

Background

[3]       On 30 April 2010 Mr Charlesworth was served with a protection order, which prohibited him having unsupervised contact with his daughters.

1	Domestic Violence Act 1995, ss19 and 49(1)(a). Maximum penalty three years’ imprisonment.

CHARLESWORTH v NEW ZEALAND POLICE [2015] NZHC 194 [17 February 2015]

[4]       On 3 July 2014, Mr Charlesworth rode his bicycle to the school attended by one of his daughters.  He spoke to her briefly.   Mr Charlesworth then walked and rode his bicycle alongside his daughter, stopping close to the house occupied by his former wife.   Mr Charlesworth’s daughters live with his former wife.   On this occasion Mr Charlesworth spoke to one of his daughters for approximately 15 to 20 minutes.

[5]       On 13 January 2015, whilst on bail in relation to the incident of 3 July 2014, Mr Charlesworth called one of his daughters on her cellphone.  He ascertained both of his daughters were at home alone.   He then arranged to meet them outside his former wife’s property. They spoke for several minutes.

[6]       Mr Charlesworth has previous convictions for offending of this nature:

(1)	On 21 June 2010 Mr Charlesworth was convicted and sentenced to

100 hours’ community work for breaching a protection order.

(2)       On 13 June 2011 Mr Charlesworth was convicted and sentenced to 80 hours’ community  work  in  relation  to  one  charge  of  breaching  a protection order, and required to come up for sentence if called upon in relation to another charge of breaching a protection order.

(3)       On 6 March 2012 Mr Charlesworth was convicted and called upon to come up for sentence in relation to his fourth charge of breaching a protection order.

[7]       The  pre-sentence  report  says  Mr  Charlesworth  was  at  a  high  risk  of reoffending  but  at  a  low  risk  of  harming  others.     The  report  writer  said Mr Charlesworth  showed  no  remorse  and  apparently  did  not  consent  to  an electronically monitored sentence because it would interfere with his work.

District Court decision

[8]       Mr Charlesworth defended the charge relating to the incident on 3 July 2014. He was found guilty by Judge Barry on 12 December 2014.   Mr Charlesworth

pleaded guilty to the charge relating to the events of 13 January 2015.   He was sentenced by Judge Barry to three months’ imprisonment in relation to each conviction. The sentences are concurrent.

[9]       Judge Barry adopted a starting point of four months’ imprisonment after taking into account the deliberate nature of Mr Charlesworth’s offending, the impact of his offending on his daughters, and his history of previous offending.

[10]     A  one   month   deduction   was   made   to   the   starting   point   to   reflect Mr Charlesworth’s guilty plea to the second charge.  This produced the end sentence of three months’ imprisonment.

Grounds of appeal

[11]     Mr Stevenson, counsel for Mr Charlesworth, submitted that the offending involved no physical threats, was non-confrontational and was at the lower end of the scale of offending of this kind.

[12]     Mr Stevenson submitted that a sentence of community work would achieve the aims and purposes of the Sentencing Act 2002 and that the sentence imposed by Judge Barry was manifestly excessive.

Legal principles governing an appeal

[13]     Prior to the commencement of the Criminal Procedure Act 2011, appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 250 of the Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court.  Section 250(2) of the Criminal Procedure Act
2011 provides:

(2)	The first appeal court must allow the appeal if satisfied that—

(a)	for any reason, there is an error in the sentence imposed on conviction; and

(b)	a different sentence should be imposed.

[14]     The Court of Appeal has since confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.  Not every error in a sentence will provide the foundations for a successful appeal.  The types of error that are contemplated by s  250(2)(a) of the Criminal Procedure Act 2011
include:2

(1)       Section 250(2) reflects a synthesis or rationalisation of the previous Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.

(2)       The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed.

(3)       The practical effect of preserving the previous approach is that the appeal  court  does  not  start  afresh  nor  simply  substitute  its  own opinion for that of the original sentencer.  Rather, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.3     If there is an error of the requisite character, the court will then form its own view of the appropriate sentence.

(4)       In assessing whether an alleged error is of the requisite character, it will be helpful to consider whether the error is material.

(5)       Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence, those concepts are long- standing  and  should  continue  to  be  utilised  when  considering s 250(2).

(6)       The  focus  in  sentence  appeals  remains  on  whether  the  sentence imposed is within range rather than the process by which the sentence

2	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[36].
3	R v Shipton [2007] 2 NZLR 218 (CA) at [139].

was reached.  In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has
been an arithmetical error).

Analysis

[15]     There is no tariff decision for breaching a protection order.  It is to be noted, that the maximum penalty for offending of this kind has been increased significantly in  recent  years.     Initially  there  was  a  maximum  sentence  of  six  months’ imprisonment unless the offender had been convicted on two occasions in the last three  years.    Parliament  has  increased  the  maximum  penalty  for  breaches  of protection  orders  to  three  years’ imprisonment.    This  reflects  the  community’s concerns about offending of this kind.

[16]     I accept that Mr Charlesworth’s offending in relation to both matters was at the lower end of the range of possible offending.   His breaches were non- confrontational and involved no physical harm to any person.

[17]     As  Judge  Barry  pointed  out  however,  there  were  significant  aggravating features  present  in  this  case.    The  breaches  were  both  deliberate  and  had  an emotional toll on Mr Charlesworth’s daughters.  His offending is compounded by the fact that it involved a breach of his position of trust as the father of the two victims.

[18]     It is significant that the second incident occurred whilst Mr Charlesworth was on  bail  in  relation  to  the first  charge.    Mr Charlesworth’s  history of  breaching protection orders is obviously a matter of concern.

[19]     In my assessment the sentence imposed by Judge Barry was within the range of sentences that were available in this instance.

[20]     I am also satisfied that the sentence imposed by Judge Barry was necessary in order to:

(1)	hold Mr Charlesworth accountable for the harm done to his daughters and the community by his offending;4

(2)	promote	in	Mr	Charlesworth	a	sense	of	responsibility	and acknowledgement of the harm that he has done;5

(3)	to denounce Mr Charlesworth’s conduct;6 and

(4)	to deter Mr Charlesworth or other persons from committing the same or similar offending.7

[21]     I am also satisfied that the sentence imposed by Judge Barry was the least restrictive outcome that was appropriate in the circumstances and was in accordance with the hierarchy of sentences and orders set out in the Sentencing Act 2002.8

Conclusion

[22]     I am bound to dismiss Mr Charlesworth’s appeal.

[23]     The sentences imposed by Judge Barry on 26 January 2015 are upheld.

D B Collins J

Solicitors:
Crown Solicitor, Nelson for Respondent

4	Sentencing Act 2002, s 7(1)(a).
5	Section 7(1)(b).
6	Section 7(1)(e).
7	Section 7(1)(f).
8	Section 8(g).