Carrick v Police

[2017] NZHC 1188

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-062

[2017] NZHC 1188

BETWEEN

STEPHEN JOHN CARRICK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 May 2017
Appearances:	N Soondram for Appellant J Bull for Respondent
Judgment:	1 June 2017

JUDGMENT (No 2) OF PAUL DAVISON J

This judgment was delivered by me on 1 June 2017 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland

CARRICK v NEW ZEALAND POLICE JUDGMENT No 2 [2017] NZHC 1188 [1 June 2017]

Summary

[1]     Mr Steven Carrick appeals the sentence of 25 months’ imprisonment imposed on him by Judge Collins in the Auckland District Court on 24 February 2017. His appeal focuses on the disproportionality of the sentence and the uplift imposed for his previous convictions.

[2]     In the circumstances here, even though I consider it would have been more appropriate for the Judge to have adopted a cumulative approach rather than a concurrent approach en route to determining the final sentence, Judge Collins’ sentence of 25 months’ imprisonment nevertheless reflects Mr Carrick’s total criminality. The end sentence is not manifestly excessive and should not be interfered with on appeal.

[3]This judgment replaces my earlier judgment of 23 May 2017.

The offending

[4]     The offending in respect of which Mr Carrick was sentenced occurred on three distinct occasions.

[5]     He was released from Mount Eden Correctional Facility on 10 November 2016. He was subject to release conditions including the standard condition requiring him to report to a Probation Officer as and when directed to do so. In breach of written instructions regarding his reporting obligations, which he had signed, Mr Carrick failed to report on 29 December 2016. By 17 January Mr Carrick had still not contacted his Probation Officer and his whereabouts were unknown. The charge of failing to report to a probation officer on 29 December 2016 as directed was laid.

[6]     The second sequence of offending occurred at about 10.00 pm on 10 January 2017. Mr Carrick was travelling on a bus from Glendene to Te Atatu. He sat behind the victim and intentionally sprayed deodorant towards the victim and then, using a lighter, he ignited the deodorant spray, setting fire to the victim’s shirt. The flames from the ignited deodorant can were then waved about and seen by other passengers causing them to fear for their safety and to shout at the bus driver to stop so they could

get off. The bus was stopped and evacuated while the flame was extinguished. Mr Carrick first appeared in Court in relation to this offending on 16 January 2017 charged with assault. He was remanded to 2 February 2017 and released on bail.

[7]     The third sequence of offending occurred at about 6.00 pm on 1 February 2017. Mr Carrick was intoxicated, contrary to bail conditions prohibiting him from consuming alcohol. He approached a car stopped at a red light and said to the male driver, “You look like a pig nark”. After a brief altercation Mr Carrick walked away pointing his fingers at the driver and gesturing as if he was holding a gun. Soon after, Mr Carrick approached a second man (the victim) who was seated outside the Point Chevalier library. Mr Carrick challenged him to a fight, suggesting that they go “one on one”. The victim asked Mr Carrick to leave him alone and, after another brief altercation, Mr Carrick wandered off.

[8]     A few minutes later the victim went to a nearby bus stop and sat down. He was approached again by the defendant, who sat down next to him and again challenged him to a fight. Mr Carrick produced what the victim thought was a knife. He asked the victim a number of times if he wanted to get “shanked”. The victim later explained that he only saw the blade of what Mr Carrick was holding, and it appeared to him to be a knife blade about 15 cm long. Mr Carrick then stood up and commenced walking around in the middle of the road, holding up traffic and obstructing buses that were coming and going. When Police arrived they found Mr Carrick staggering across the road near the bus stop. A search of Mr Carrick revealed that he had a pair of scissors in his back pocket, along with two other pairs of scissors and a monkey wrench in his bag. He was too drunk to offer a coherent explanation of his actions.

[9]     At the time of Mr Carrick’s offending on 10 January and 1 February 2017 he was still subject to his prison release conditions, and as at 1 February 2017 he was, in addition, subject to bail conditions.

The charges

[10]    Mr Carrick was charged with breaching release conditions for failing to report to a probation officer on 29 December 2016. This offence carries a maximum penalty

of one year imprisonment.1

[11]In relation to the 10 January 2017 incident, Mr Carrick was charged with:

(a)common    assault,    carrying    a    maximum    penalty    of   one    year imprisonment;2 and

(b)disorderly behaviour, carrying a maximum penalty of a $1,000 fine.

The sentence on that charge is not appealed.3

[12]In relation to the 1 February 2017 incident, Mr Carrick was charged with:

(a)possession of an offensive weapon, carrying a maximum penalty of three years’ imprisonment;4

(b)disorderly behaviour likely to cause violence, carrying a maximum penalty of three months’ imprisonment or a $2,000 fine;5 and

(c)threatening to injure with intent to intimidate, carrying a maximum penalty of three months’ imprisonment.6

District Court decision

[13]    Judge Collins adopted a starting point of 12 months’ imprisonment on the assault charge, which involved Mr Carrick setting the victim’s shirt on fire on the bus. He noted Mr Carrick was “fortunate” he was not charged with arson instead,7 and pointed to the need for people to feel safe when using public transport.8 He then turned to the charge of possession of an offensive weapon. The maximum penalty for that offence being three years’ imprisonment, the Judge held the offending here warranted

1      Sentencing Act 2002, ss 93 and 96.

2      Crimes Act 1961, s 196.

3      Summary Offences Act 1981, s 4(1)(a).

4      Crimes Act 1961, s 202A(4)(a).

5      Summary Offences Act 1981, s 3.

6      Summary Offences Act 1981, s 21(a).

7      Police v Carrick [2017] NZDC 4003 at [7].

8 At [15].

an uplift of six months (“on a totality basis”).9 From there he uplifted by two months on account of the threatening charges and one month for the breach of release conditions.10 That approach took him to 21 months’ imprisonment in respect of the offending itself.

[14]    Judge Collins then applied an uplift for what he termed Mr Carrick’s “smorgasbord” of previous offences.11 The Judge noted 14 previous convictions for assault, not including related types of offending such as aggravated robbery. The Judge commented that he was alive to the risk of “double jeopardy” for imposing an uplift in respect of previous offending, noting that any uplift must have some link to the protection of the public where a person’s extensive history presents an ongoing risk.12 Judge Collins considered Mr Carrick’s criminal history did indicate such a risk. Accordingly, he applied an uplift of 11 months, equivalent to approximately 50 per cent of the 21 months he had determined in relation to the offending. That took him to a total of 32 months’ imprisonment.

[15]    The Judge gave a seven month discount for Mr Carrick’s early guilty plea, which he said was the “true worth” of the plea.13

[16]    The sentence of two years, one month imprisonment was then imposed on the possession of an offensive weapon charge, with nine months concurrently on the assault charge. In respect of all other imprisonable offences the Judge imposed one month imprisonment, also to be served concurrently. On the disorderly behaviour charge, Mr Carrick was convicted and discharged.

[17]    On this basis, the final sentence imposed was two years, one month imprisonment.

9 At [16].

10 At [16].

11 At [13].

12     Citing R v Columbus [2008] NZCA 192.

13     At [21], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

Submissions

Appellant’s submissions

[18]    Ms Soondram, for Mr Carrick, submits that the sentence was manifestly excessive. She makes two general submissions in support of that proposition:

(a)The sentence was disproportionate: Ms Soondram says that while the initial 12 month starting point on the common assault charge was appropriate, the end sentence was reached cumulatively despite the Judge purporting to impose the sentences for the other offences concurrently.

Ms Soondram submits that a sentence of two years, one month imprisonment on the charge of possession of an offensive weapon was excessive. To reach such a sentence (taking into account the seven month guilty plea discount), a two year, eight month starting point would have been required, which would have been out of proportion to the offensive weapon offending. She says possession of scissors in a public place falls at the lower end of the spectrum for this type of offending.

Additionally, she says Judge Collins failed to adequately consider the least restrictive sentence open to the Court, and the need for rehabilitation and reintegration, both of which called for consideration of a non-custodial sentence such as community work.

(b)The uplift for previous offending was excessive: Ms Soondram says an 11 month uplift for Mr Carrick’s previous convictions was excessive, and that the Judge placed too much weight on the risk the appellant posed to the public.

Ms Soondram submits that the uplift was not proportionate to the circumstances, having regard to the length of the previous sentences of

imprisonment Mr Carrick has served, and further, that the uplift did not bear a reasonable relationship to the starting point. She refers to a number of authorities in support of this submission.14

[19]    Developing the above submissions, Ms Soondram refers to Brewer v Police, where the appellant faced charges of threatening to kill and possession of an offensive weapon. He appealed unsuccessfully against a sentence of two years, two months’ imprisonment. Mr Brewer had some 42 previous convictions, 23 of them involving violence including convictions for intimidating, threatening behaviour, threatening to kill, kidnapping, possession of an offensive weapon, assault with a stabbing/cutting instrument and aggravated robbery. Fourteen of the previous convictions had resulted in terms of imprisonment.

[20]    The sentencing Judge took a starting point of two years for the threatening to kill charge, and then added an uplift of eight months on account of his previous convictions for violence. The Judge then reduced the sentence by six months on account of guilty pleas. The sentencing Judge considered that the primary objective was to hold the offender accountable and at least to protect the community for a time, noting that he was not sure that imprisonment had any deterrent effect because of Mr Brewer’s continued offending. Dismissing the appeal, French J said:

[17] I am also satisfied that the uplift on account of previous convictions  was fully justified. That is particularly so when one has regard to the further aggravating personal factor, namely that this offending occurred while Mr Brewer was on parole. The record is alarming, and the interests of protecting members of the public was certainly something the Judge was entitled to emphasise in the circumstances of this case.

[21]    Another case relied on by Ms Soondram is the Court of Appeal decision in Heke v R where Mr Heke was found guilty of one charge of kidnapping and one charge of threatening to kill.15 On the morning of his trial he pleaded guilty to charges of male assaults female and breaching a protection order. The sentencing Judge took the kidnapping and threatening to kill charges together as lead charges, adopted a starting point of two years and four months’ imprisonment, and added an uplift of eight months

14     Brewer v Police HC Dunedin CRI-2011-412-25, 28 September 2011; Heke v R [2016] NZCA 38;

Paraone v Police [2016] NZHC 2549.

15     Heke v R, above n 14.

for his previous convictions. Dismissing the appeal, the Court of Appeal commented on the uplift to reflect Me Heke’s previous offending:

[12] Similarly, we consider the Judge was right to apply an uplift of eight months to reflect the appellant’s history of offending. It is Mr Heke’s repeat offending since 2010 against the same victim that particularly warrants such an uplift, rather than the mere existence of an extensive list of previous convictions.¹⁶

[22]    Ms Soondram submits that the 66 percent uplift applied in R v Columbus, the authority referred to by Judge Collins, should be distinguished on the basis that greater uplifts are to be imposed in cases involving recidivist burglars, as was the case with Mr Columbus.

Crown submissions

[23]    Ms Bull, for the Crown, agrees the starting point adopted by Judge Collins for the assault charge was appropriate. She says, in terms of the uplifts for Mr Carrick’s additional offences, the “unusually threatening and callous nature of the assault, together with the unprovoked threats of violence” justified the final starting point of 21 months.

[24]    Ms Bull refers to the High Court decision in Mataa v R in relation to the uplifts to the assault charge for the additional offences.17 In that case the offending involved a sequence of events during a single night and the early hours of the following morning. The defendant, who had been drunk and aggressive, was arrested for behaving in a disorderly manner and for damaging property in a shop. Later that morning, after being bailed and released, he returned to the hostel where he was living and used a kitchen knife to threaten two security staff who had been called to the hostel because of his aggressive behaviour. He was charged with possession of an offensive weapon in circumstances which prima facie showed an intention to use it to commit an offence involving bodily injury.18

16     In Heke, the convictions relating to the victim included two for breaching protection orders, six for male assaults female and one of threatening to kill.

17     Mataa v Police HC Wellington AP/77/98, 29 April 1998.

18     Crimes Act 1961, s 202A(4)(b).

[25]    On appeal against a sentence of nine months’ imprisonment on the possession of an offensive weapon charge, Gendall J held that a sentence of six months’ imprisonment was appropriate, with one month for each charge of wilful damage, threatening behaviour and disorderly behaviour. Ms Bull submits that although here the offensive weapon was a pair of scissors, the facts of the present case are comparable to the facts of Mataa as Mr Carrick had possession of what appeared to be a knife with a 15 centimetre blade, and by asking the victim if he wanted to be “shanked” he deliberately gave his victim the impression that he was holding a knife. Ms Bull submits that the six month penalty imposed in Mataa provides support for Judge Collins adopting a six month uplift in respect of the possession of an offensive weapon charge.

[26]    Ms Bull submits that, having regard to what she terms the unusually threatening and callous nature of the assault, together with the other unprovoked threats of violence against strangers, a total starting point of 21 months’ imprisonment was not manifestly excessive.

[27]    As to the 11 month uplift for Mr Carrick’s previous offences, Ms Bull concedes this was “stern” but not excessive. Ms Bull notes that previous convictions must be taken into account pursuant to s 9(1)(j) of the Sentencing Act 2002, and refers to the Court of Appeal decision in Beckham v R as providing support for Judge Collins’ comment that previous convictions that indicate a tendency to commit the particular type of offence for which the offender is convicted may require an uplift in the interests of public protection and deterrence.19

[28]    Ms Bull also refers to a number of cases where, on appeal, uplifts for previous convictions of around 50 per cent were substituted.20 She notes Mr Carrick has served a number of sentences of imprisonment, including 10 for assaults. She also points to 12 other violence-related offences on his criminal record. The present offending, which involved unprovoked and random violence or threats in public places within three months of Mr Carrick’s most recent release from prison, must be seen in the

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

20     Kushell v Police [2012] NZHC 2380; Wiringi v Police [2013] NZHC 3212; R v Columbus [2008] NZCA 192; Ripia v R [2011] NZCA 101.

context of his extended history of criminal offending. Ms Bull submits that, against that background, his ongoing risk to the community is particularly high. The Crown therefore submits that the end sentence of 25 months’ imprisonment imposed by Judge Collins was within the available range, and was appropriate in the circumstances.

[29]    Responding to Ms Soondram’s submission that the sentence of 25 months’ imprisonment on the possession of an offensive weapon charge was too close to the three year maximum for that offence, Ms Bull notes that the Judge expressly stated that a six month uplift was imposed for that offence, and that uplift was appropriate in the circumstances. She says that although it would have been open to the Judge to adopt a cumulative approach to determining the overall sentence, he did not err by adopting a concurrent approach. Ms Bull accepts that a concurrent sentence would not have been appropriate had the final starting point exceeded the maximum penalty for the most serious offence,21 but says that was not the case here.

Appeals against sentence

[30]    Section 250(2) of the Criminal Procedure Act 2011 states that the 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.

[31]In any other case, the Court must dismiss the appeal.22

[32]    The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.23

21     Citing R v Xie [2007] NZLR 240 (CA).

22     Criminal Procedure Act 2011, s 250(3).

23     Ripia v R, above n 19, at [15].

[33]    The Court of Appeal’s explanations as to the need for an appeal court to assess a sentence appeal primarily by reference to the final sentence rather than the sentencing judge’s methodology (especially where questions of uplifts and percentages are involved) is particularly relevant:24

Finally, in terms of the point of principle initially raised, we note that many judges might well have treated the identity of the victim, and the fact of persistent offending against the same victim, as matters to be included in the starting point. If that were done, then obviously the size of the uplift would decrease correspondingly, and the percentage figure that troubles the appellant would be smaller. It is for this reason that this Court has consistently observed that sentence appeals will almost always turn on a consideration of whether the final outcome is manifestly excessive. The route by which the judge reached that outcome will be relevant to the analysis, but seldom in itself pivotal.

Was there an error in the sentence imposed on conviction?

(a)The uplift for previous offending

[34]    Mr Carrick’s extensive history of relevant offending meant that an uplift was clearly required in the interests of public protection and deterrence. The issue is whether the 11 month uplift from the 21 month starting point adopted by Judge Collins was excessive and disproportionate to Mr Carrick’s previous sentences, and whether the uplift effectively punished him again for offending for which he had already been punished, in many cases with a sentence of imprisonment – but never one equivalent to the 11 month uplift imposed by the Judge.

[35]    At the outset I note the Crown’s acceptance that this was a stern uplift, but that it does not amount to an error that requires the intervention of this Court on appeal.

[36]    Judge Collins specifically referred to the need for care when considering uplifting for previous offending, to avoid punishing people twice or imposing double jeopardy on them. The Judge quite correctly observed that the rationale for an uplift for previous offending must be the protection of the public. Where an offender, because of an extensive list of previous violence offences, is shown to represent an ongoing risk of violence, that risk is appropriately recognised and addressed by way

24 At [15].

of an uplift as a further component of the sentence, and that is directed towards the protection of the public. The quantum of an uplift must be both proportionate and not such as to effectively punish the offender over again for the past offending for which the sentence has been served. There is no reliable formula or yardstick that would enable the assessment of such an uplift to be undertaken with any arithmetic precision. It is a matter of assessment and judgment that will be informed by the particular features and circumstances of each case.

[37]    That is supported by the relevant Court of Appeal authorities. The rationale for previous convictions uplifts was explained by the Court of Appeal in Beckham v R:25

The rationale for uplifting a prisoner’s sentence to take into account prior criminal history has been explained by this Court in R v Casey and in R v Ward. As Sir Michael Myers CJ explained in Casey, the Court must be careful to see that a sentence of a person who has been previously convicted is not increased merely by reason of those previous convictions. If this occurred, it would result in the prisoner being sentenced again for an offence which he had already expiated. This does not mean that previous convictions must be ignored, particularly if the previous convictions indicate a tendency to commit the particular type of offence for which the offender is convicted. Issues of deterrence and, in some cases, protection of the public may require an uplift for previous offending. Similarly, previous convictions may bear on the issue of character.

[38]    And in Ripia v R, in relation to the available size of uplift for previous convictions, the Court of Appeal said:26

We do not agree there is a rule that should be laid down. Section 9(1)(j) of the Sentencing Act 2002 says that previous convictions must be taken into account, having regard to their seriousness and their relevance to the present sentencing exercise. The extent then to which such convictions are taken into account, and the manner in which they are taken into account, is a matter initially for the sentencing judge. On appeal, an assessment of the judge’s evaluation will inevitably take place within the context of an inquiry into whether the final sentence is of an available type, and if so whether it has been shown to be manifestly excessive. No specific rules can or should be prescribed.

25     Beckham v R, above n 19, at [84], citing R v Casey [1931] NZLR 594 (CA) at 597 and R v Ward

[1976] 1 NZLR 588 (CA) at 591.

26     Ripia v R, above n 20, at [10].

[39]    Examples of uplifts adopted in other comparable cases, while of some assistance, cannot provide any clear guidance because of the vast variety of circumstances that will present themselves in this context. While accepting that the uplift adopted here amounted to a higher proportion of the starting point than that often imposed, the Crown has referred to and relied on several cases to support the submission that an uplift of around 50 per cent of the starting point was available to the sentencing Judge.

[40]    In addition to the cases referred to by the parties, another broadly comparable and recent High Court case in which the quantum of an uplift was considered on appeal is Omar v Police.27 There, where a starting point of six months had been adopted and a three month or 50 per cent uplift added for previous violent convictions, Gendall J found the uplift to be excessive, and reduced the uplift to one month two weeks, equivalent to 25 per cent of the starting point. The defendant had nine previous “violence-related” convictions, but there was a nine year gap between them. Comparatively, Mr Carrick has committed 11 directly violent offences, including common assault, assaulting police, male assaults female and assault with intent to injure, in the past decade alone. That does not include his “violence-related” offences. On that comparison, a significantly greater uplift than the 25 per cent adopted in Omar would appear justified, although 50 per cent may be at the upper end of the appropriate range

[41]    In the end these cases are of limited relevance and assistance because of their differing circumstances and factual details, all of which are relevant to the assessments of the uplifts applied in those cases.

[42]    The previous convictions here are directly relevant to the assessment of Mr Carrick’s culpability within the gravity of this offending, and to the purposes of deterrence and community protection.28 As well as the violence convictions, Mr Carrick’s history reveals additional offending patterns that create cause for concern, including:

27     Omar v Police [2017] NZHC 288.

28     Sentencing Act 2002, ss 8(a) and 9(1)(j), and ss 7(f) and (g).

(a)a consistent disregard for court orders and other legal obligations (including 22 such offences in the past decade);

(b)five convictions for disorderly conduct in the past decade;

(c)four convictions for threatening behaviour in the past decade; and

(d)three convictions for possession of various weapons.

[43]   I am satisfied there is a sufficient nexus between the nature of Mr Carrick’s persistent serious violent (and other) offending and the offences for which Mr Carrick was being sentenced to warrant a solid uplift. The drivers contributing to his offending appear to remain unaddressed so that the risks, as evident by virtue of his previous offending and the current offending, are directly relevant to the sentencing purpose of protection of the public.

[44]    Given what is clearly a compelling case for the addition of an uplift to meet the sentencing objectives and purposes, I do not consider that it can be said that the Judge specifically erred in imposing a 50 per cent uplift in this case. However, rather than assessing the appropriate uplift by reference to all of the offending for which Mr Carrick was being sentenced, as I shall explain, I consider it would have been preferable if the Judge had related the uplift more specifically to the offences.

(b)25 months for possession of an offensive weapon?

[45]    Ms Soondram says that a 25 month sentence on the possession of an offensive weapon charge is too high. But nevertheless accepts that when sentencing concurrently, it would be correct in this case to impose the sentence for the totality of the offending on the offensive weapon charge.

[46]    The Judge was dealing with multiple offending. In cases where only concurrent sentences are to be imposed, which was what the Judge did in this case,   s 85 of the Act requires:

(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)each of the lesser offences must receive the penalty appropriate to that offence.

[47]    Judge Collins took the most serious offence (being in possession of an offensive weapon) and imposed on that offence the penalty he considered appropriate for the totality of the offending, being 25 months’ imprisonment. He reached that penalty by considering the offending in the round.29 In isolation 25 months’ imprisonment for possession of scissors and a wrench would be excessive and out of step with comparable cases, but here, where only concurrent sentences were imposed, a sentence reflecting the totality of the offending was required to be imposed on that charge. That is what the 25 months reflected. On that basis I do not accept Ms Soondram’s submission.30

(c)A cumulative or concurrent approach?

[48]    Rather than the concurrent approach adopted by Judge Collins, and notwithstanding the Judge’s approach in accordance with the requirements of s 85, I consider, having regard to the three discrete instances of offending by Mr Carrick for which he was sentenced, a cumulative approach would have been preferable.

[49]    When dealing with multiple offences there is no requirement that the Judge approach the total sentence in any particular way.31 As the Court of Appeal has said:32

Sometimes there is an advantage in imposing cumulative sentences on some or all of the charges, whereas others are more appropriately dealt with by one major sentence which subsumes all matters, with concurrent sentences imposed.

29 At [16].

30 I note, despite the fact the sentence was handed down in accordance with s 85(4)(a), the penalties for the lesser offences were arguably not appropriate to the offence (e.g. nine months for the assault, when the Judge already concluded the assault was sufficiently serious to warrant 12 months), so the methodology may not accord with s 84(4)(b).

31     R v Xie, above n 21, at [17], citing R v Barker CA57/01, 30 July 2001 at [10].

32     R v Williams CA 91/00, 31 May 2000.

[50]    Nevertheless, s 84 of the Sentencing Act does provide guidance for when cumulative and concurrent approaches are “generally appropriate”. Concurrent sentences are generally appropriate if the offences for which an offender is being sentenced are “of a similar kind and are a connected series of offences.”33

[51]    I do not consider Mr Carrick’s offending was suited to, or adequately dealt with by, Judge Collins’ concurrent approach. While broadly speaking Mr Carrick’s offending on 10 January and 1 February is comparable (being random violence or threats of violence while Mr Carrick is in public places), a closer look shows each incident was really quite distinct. The first sequence of offending was a breach of release conditions. The second involved setting fire to someone and causing disorder on the bus by doing so. The third involved verbal threats of violence, harassing of the victim, and presentation of a weapon and possession of weapons. The two most serious events occurred several weeks apart. They are entirely separate sets of offending; they are not “one transaction”.34 In my view, there is insufficient similarity and connection between the offences to justify a concurrent sentencing approach.

[52]    The cases referred to by the Crown support this conclusion. In Mataa, while the offences were varied, they were connected in that they could be seen as a continuous course of conduct albeit separated by the period when the offender was arrested and in custody before being released and offending again.35 That is obviously distinguishable from the present case. Further, it is not clear that a concurrent approach was actually taken in that case, as the Crown seems to suggest, because the sentences for the summary offending that occurred earlier in the sequence of events were imposed cumulatively on the nine months for the offensive weapon charge.

[53]    I consider the Judge should have approached the sentencing exercise in accordance with the methodology endorsed by the Court of Appeal in Ward v Police.36 In Ward, four separate incidents were assigned their own self-contained concurrent sentences which were then imposed cumulatively on one another and, lastly, assessed

33     Sentencing Act 2002, s 84(2).

34     R v Turnbull CA 85/78, 4 December 1978.

35     Mataa v Police, above n 17.

36     Ward v Police [2011] NZCA 44.

for totality. While such an approach could be regarded as somewhat tortuous, I consider that it is a principled and indeed correct approach for those cases involving distinct and discrete incidents of offending wherein multiple offences were committed. In another case, the Court of Appeal has indeed said that individual sentences fashioned to reflect the seriousness of each offence is an “overarching requirement”.37 In my view, Judge Collins’ sentencing approach did not meet this requirement.

[54]    Thus, with respect, I consider Judge Collins made an error in principle by sentencing Mr Carrick on a concurrent basis.

Should a new sentence be imposed?

[55]    Despite what I have found above, I consider that it would not be appropriate to undertake what would essentially amount to tinkering with Judge Collins’ sentence. The Judge accurately assessed Mr Carrick’s overall criminality and the overall end sentence is not manifestly excessive. On appeal, the concern is with the total effective sentence rather than the mechanics by which it was reached.38

[56]    Nevertheless, for completeness, I include the approach I would have taken as the sentencing Judge, consistent with that taken in Ward discussed above:

(a)The first incident: For the breach of release conditions, I would start with two months, and uplift that by one month for Mr Carrick’s extensive and persistent history of failing to comply with release conditions and other such obligations on him. The breach involved in his failure to meet with a probation officer is more than minor, and was yet another instance of him showing total disregard for his obligations. I consider a 50 per cent uplift to be appropriate and proportionate to the starting point on this charge because of the heightened need for deterrence in this instance. That means the appropriate sentence for the first incident is three months’ imprisonment.

37     R v O CA258/05, 3 March 2006 at [19].

38     R v Swain CA 158/92, 8 July 1992.

(b)The second incident: I agree with Judge Collins and both parties that the assault warrants 12 months’ imprisonment. That is the maximum penalty and incorporates recognition for Mr Carrick’s previous violence offences and the fact this offending occurred while Mr Carrick was subject to release conditions following a previous sentence of imprisonment for assault.

(c)The third incident: The offending that occurred on this occasion, on the other hand, does call for the adoption of a concurrent approach. Taking possession of an offensive weapon as the lead charge, I am assisted by Mataa, to which the Crown referred. In that case Gendall J imposed a six month sentence for possession of a knife in circumstances which indicated an intention to use it to commit an offence involving bodily injury.39 I consider a starting point of six months would be appropriate here, along with a three month uplift for the threatening and disorderly behaviour likely to cause violence, those offences, the threatening in particular, being aggravated by its repeated nature, Mr Carrick’s persistent harassment of the victim, and the seriousness of the threat he made by deliberately appearing to be holding a blade. This latter factor relates to his conduct as opposed to his possession of the weapon.

Considering Mr Carrick’s extensive previous convictions for possession of various weapons, disorderly behaviour, and intimidation- related offences, as well as the fact that this incident occurred while Mr Carrick was on bail and subject to release conditions, I consider that a five month uplift would be appropriate. That comes to a total of 14 months’ imprisonment on the third incident.

[57]   I consider the adoption of a cumulative approach has the added advantage of allowing greater precision for uplifts for previous offending by directly relating the index offending to specific prior offending that justifies the imposition of an uplift,

39     That six month end point was reached following a guilty plea discount, so the starting point appears to have been higher than six months.

avoiding the risk of global and potentially excessive uplifts for generally negative criminal histories.

[58]   Cumulatively, and including the respective uplifts for previous offending as they relate directly to the offending at issue, the sentence I would have imposed using that method comes to 29 months’ imprisonment. That, I consider, is reflective of the totality of the offending.

[59]    I have limited information before me as to the circumstances relating to the guilty plea. However, on a full 25 per cent discount (which is more generous than the 20 per cent given by Judge Collins), I would come to an end sentence of 22 months’ imprisonment. Using Judge Collins’ discount for the guilty pleas would produce an end sentence of around 23 months. Irrespective of which discount is used, the final sentence would be either two or three months’ variance from that imposed by Judge Collins.

[60]    Having regard to the 25 month sentence imposed by the Judge, I do not consider that the variance produced by the assessment I have undertaken would indicate that the sentence imposed by the Judge was manifestly excessive.

[61]    For those reasons I am not satisfied that it is necessary or appropriate to intervene on appeal. An end sentence of 25 months’ imprisonment is within the available range and not manifestly excessive. It is reflective of the overall criminality of Mr Carrick’s offending.

Conclusion

[62]    While I consider the Judge’s methodology was in error, as observed by the Court of Appeal in Ripia, the route by which the Judge reached that outcome will be relevant to the analysis, but seldom, in itself, pivotal. The focus is appropriately on the sentence imposed rather than the process by which the sentence is reached.

[63]     I find that the final sentence imposed on Mr Carrick of two years, one month imprisonment is not manifestly excessive. His appeal is dismissed.

Paul Davison J