Anderson v Police

[2019] NZHC 3355

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-412-000036

[2019] NZHC 3355

BETWEEN

SAMUEL ANDERSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 December 2019
Appearances:	B P Kilkelly for Appellant R P Bates for Respondent
Judgment:	17 December 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1]    On 18 September 2019  Judge  Phillips  sentenced  Samuel  Anderson  to  four years and five months’ imprisonment on one charge  of  threatening  to  kill, four charges of assault with intent to injure, a charge of supplying MDMA, and a charge of driving on a suspended licence.

[2]    He now appeals that sentence on the sole ground that the uplift of six months for previous convictions was too high.

Facts

[3]    On 9 February 2018 Mr Anderson and the victim were at their home in Dunedin. An argument occurred and Mr Anderson headbutted the victim, knocking her out. He picked her up and elbowed her in the head, knocking her to the ground

ANDERSON v NEW ZEALAND POLICE [2019] NZHC 3355 [17 December 2019]

again. He then splashed water on her face to revive her before punching her in the face. The victim suffered a black and swollen eye, swollen nose and chipped tooth as a result.

[4]    On 23 March 2018 he met with a person with whom he was communicating by text message. He supplied that person with an unknown quantity of MDMA.

[5]    On 3 April 2018 he and the victim were at home. He took her cell-phone and went to leave the house with it. She protested because she did not want him to take it. He became angry with her and got on top of her. He pulled her fingers back, grabbed her by the arms, attempted to gouge her eye, elbowed her in the eye, kneed her tailbone, slammed a knee or fist in her face, pressed the pressure points behind her ears, put a foot on her head and placed a pillow over her face. The victim suffered multiple bruises to her arm, hand and legs, abrasions to her head, neck, chest and back. She suffered a swollen black eye, a broken capillary behind her ear, and pain in her sternum and back.

[6]    On 9 May 2018 he and the victim were at home together. He was upset at her so he jumped on top of her on the bed and tried to grab her around the neck. As the victim struggled, she fell off the bed and ended up on the floor between the bed and the wardrobe. He then jumped on her shins and got on top of her, forcefully putting his knee into the area of her ovaries. He tried to put his hands around her throat. She wriggled onto her side and hit him on the arm attempting to stop the attack. He got off her and kicked her in the thigh. The victim suffered bruising and tenderness to her shins and thigh.

[7]    On 16 May 2018, after they had broken up, Mr Anderson badgered the victim to meet with him. He intimidated her by sending her messages through Facebook Messenger stating that if they were over, he would burn her books and photos. He then picked her up in his vehicle in South Dunedin. Mr Anderson was angry as he believed the victim had cheated on him. He abused her and stated he was going to kill her and the man she had been with. He punched her multiple times while she was sitting in the car. He then stopped the vehicle, got out, grabbed a hammer from the boot and returned to the driver’s seat. He raised the hammer as if he was going to hit

the victim. She fled the vehicle. The victim suffered a bleeding and tender nose, black eye and bruising to her arms and body.

[8]    On 11 March  2019  Mr  Anderson’s  driver  licence  was  suspended  for three months because he had incurred excess demerit points. On 21 March 2019 he was stopped by police and found to be driving while suspended.

District Court decision

[9]    Judge Phillips took the 16 May 2018 threatening to kill and assault with intent to injure charges as the lead offences, noting that the assault was extremely serious and he was “lucky to have been charged at the level [he was]”. The Judge adopted a starting point of 18 months for the threatening to kill charge and 15 months for the charge of assault with intent to injure.  This led to a provisional starting point of   two years and nine months for that set of offending. The Judge then made an adjustment for totality, reducing the starting point for that offending to two years and six months.

[10]   The Judge then considered the starting points for each of the other charges of assault and intent to injure, and considered they would have ordinarily attracted a sentence of between 18 to 20 months each. However, again, having regard to totality, he made an uplift to the initial starting point of two years’ imprisonment for these charges. On the charge of supplying MDMA he made a final uplift of three months, leading to a global starting point of four years and nine months.

[11]   The Crown had urged the  Judge  to  impose  an  uplift  of  12  months  for  Mr Anderson’s relevant convictions from 2015, being injuring with intent to injure (family violence), assault with intent to injure, two charges of male assaults female, two charges of common assault and a charge of speaking threateningly. The Judge, however, declined to uplift the sentence by 12 months for these previous convictions, saying there “need[ed] to be some mercy with [the] uplift and I am not here to re-sentence you in relation to the 2015 matters”. However, he did uplift the sentence by six months, to reach an overall starting point of five years and three months’ imprisonment, noting this was to recognise that the previous sentence had not had the intended impact on Mr Anderson by stopping him reoffending.

[12]   The Judge finally allowed a discount of 10 months (about 15 per cent)  for Mr Anderson’s late guilty pleas. Thus, the end sentence imposed was four years and five months.

Principles on appeal

[13]   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.1 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.2 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.3 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.4

Submissions

Appellant’s submissions

[14]   Mr Kilkelly makes it clear he takes no issue with the starting point arrived at by the Judge. His only issue was with the uplift for previous convictions, which he submits should have been no more than three months. An uplift of six months for convictions that only attracted a sentence of two years six months is, in his submission, excessive and amounts to a form of re-sentencing. He notes, too, that the Judge appeared to understand that all the current offences were committed while he was on parole for the previous offending, when in fact only the first of the current offences was committed while on parole.

1      Criminal Procedure Act 2011, ss 250(2) and 250(3).

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

3      Ripia v R [2011] NZCA 101 at [15].

4      Skipper v R [2011] NZCA 250 at [28].

[15]   In support of that submission he refers to Tiplady-Koroheke v R where the Court of Appeal reduced an uplift for previous  offending  from  six  months  to  three months.5 The Court there cited Beckham v R, where it had referred to the following statement of Myers CJ in R v Casey:6

The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he was already expiated.

Mr Kilkelly says that to impose an uplift equivalent to 20 per cent of the previous sentence is to offend that principle.

Respondent’s submissions

[16]   Mr Bates for the Crown submits an uplift of six months was available to the Judge. He notes that in Tiplady-Koroheke the Court of Appeal considered an uplift for previous convictions of no more than 12.5 per cent of the starting point would be appropriate.7 In this case, the Judge made an uplift equating to about 10.5 per cent of the starting point. Thus, the uplift was appropriate, the end sentence was well within range and the appeal should be dismissed.

Analysis

[17]   An uplift for previous convictions is not, as the Judge correctly pointed out, imposed for the purpose of re-sentencing. It is imposed to reflect the offender’s increased culpability for the current offending when he or she has been found guilty and sentenced for the same or similar behaviour on previous occasions. As I said in Reedy v New Zealand Police:8

… a criminal history in and of itself does not justify an uplift. It must have some relevance to the current sentencing process, for example, by bearing on the blameworthiness of the present offending or on the increased need for further deterrence.

5      Tiplady-Koroheke v R [2012] NZCA 477.

6      At [23] citing Beckham v R [2012] NZCA 290 at [84] citing R v Casey [1931] NZLR 594 (CA) at 597.

7      Tiplady-Koroheke, above n 5, at [24].

8      Reedy v New Zealand Police [2015] NZHC 1069 at [18].

[18]   Seen in this light, the proportion of the uplift to the sentence previously imposed is not particularly relevant. It is more important to consider whether the uplift on the sentence being imposed is a proportionate reflection of the defendant’s increased culpability given his earlier offending.

[19]   In this case, the offending was precisely the same type of offending as his previous  convictions.  That  is,   violent   offending   against   domestic   partners. Mr Anderson was still on parole when he embarked on the current sequence of offending (although I accept not all the offending was committed while on parole), and if anything, the present offending was more serious than the previous offending. This demonstrated that Mr Anderson had not been deterred by, nor had he learnt from, the previous sentence imposed. In those circumstances, I consider that an uplift of around 10 per cent from the starting point was well within the range available to the sentencing Judge.

Conclusion

[20]   The six-month uplift for Mr Anderson’s previous convictions was appropriate and the end sentence of four years and five months’ imprisonment was not manifestly excessive.

[21]The appeal is dismissed.

Solicitors:

RPB Law, Dunedin

B P Kilkelly, Barrister, Dunedin