Chok v Police

[2017] NZHC 1738

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CRI 2017-085-000019

[2017] NZHC 1738

BETWEEN

PANARETH CHOK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 July 2017
Appearances:	G Turkington for the Appellant R De Silva for the Respondent
Judgment:	27 July 2017

RESERVED JUDGMENT OF CHURCHMAN J

Introduction

[1]        Mr Chok was sentenced to 26 months’ imprisonment for charges of injuring with reckless disregard,¹ driving with excess breath alcohol² and driving while disqualified³ on 30 November 2016 in the Wellington District Court by Judge Davidson.⁴

[2]        Mr Chok applies for leave to appeal against that sentence on grounds there was disparity between Mr Chok’s sentence and that received by his co-offender,    Mr Ailao. Mr Turkington, counsel for Mr Chok confirmed that the sentence was not challenged on the basis that it was manifestly excessive.

1      Crimes Act 1961, s 189(2). Maximum penalty five years’ imprisonment.

2      Land Transport Act 1998, s 56(1). Maximum penalty two years’ imprisonment/$6,000 fine.

3      Sections 32(1)(a) and 32(4). Maximum penalty two years’ imprisonment/$6,000 fine.

4      Police v Chok [2016] NZDC 24344.

CHOK v NEW ZEALAND POLICE [2017] NZHC 1738 [27 July 2017]

Background

Mr Chok

[3]        Mr Chok was convicted of injuring with reckless disregard following a judge alone trial before Judge Davidson on 22 September 2016.⁵ That conviction arose from events on 8 February 2015.

[4]        At around 4.15pm, Mr Chok was walking down Courtenay Place, Wellington with Mr Ailao. Both had been consuming alcohol. Mr Ailao approached [female victim] from behind, smacked her bottom and acted in a crude manner when she and her husband turned around. As a result, [Male victim] contacted the police on his cellphone.

[5]        Mr Chok and Mr Ailao walked away and got into a car which was parked on the opposite side of the road. When [Male victim] approached the car to get its registration details for the police, Mr Chok and Mr Ailao attacked him. Both men approached the victim and punched him to the head and upper body. One grabbed him by his t-shirt, causing it to rip. [Male victim] was pulled to the ground and struck his head on a shop window as he attempted to back away. While on the ground both  men kicked [Male victim] to his upper body and he briefly lost consciousness.

[6]        [Male victim] was taken to hospital and had a broken clavicle, a cut and bruised right eye and concussion. At the time of trial, [Male victim] was still suffering  symptoms and was on a return to work plan. [Male victim]’s victim impact statement demonstrated he was badly affected financially, emotionally and psychologically. [Female victim] was also negatively impacted.

[7]        On 8 January 2016, Mr Chok was stopped driving by the police while on bail. He was at the time disqualified and driving with a high blood alcohol reading of nearly double the legal limit. Mr Chok was found guilty for this offending following another judge-alone trial before another judge.

5      Police v Chok [2016] NZDC 18650.

Mr Ailao

[8]        Mr Ailao pleaded guilty to a charge of injuring with intent to injure arising from the  events  on  8  February  2015.  He  was  sentenced  by  Judge  Hobbs  on  10 August 2015 for that offending and for an associated charge of male assaults female, breach of community work, breach of release conditions and a summary offences assault.⁶

[9]        In adopting the starting point for the lead charge of injuring with intent to injure, the Judge identified the aggravating features as two attackers; multiple blows to the head rendering [Male victim] unconscious; continuing to punch the victim when he was on the ground and unconscious; and injuries.⁷ The Judge also noted at the time Mr Ailao was subject to prison release conditions, including not to consume alcohol. The offending was placed within band 2 of Nuku v R⁸ and a two year starting point was adopted. An uplift of six months was imposed for the other charges.

[10]      The Judge allowed for a five per cent reduction for Mr Ailao’s expressions of remorse, desire to rehabilitate and the steps taken while he was on remand. His  guilty pleas were recognised by a further 20 per cent reduction and a final sentence of 22 months’ imprisonment was imposed.

District Court decision

[11]      Judge Davidson identified injuring with reckless disregard as Mr Chok’s lead charge. The Judge accepted “issues of parity [arose] to some extent”.⁹

[12]It setting a starting point of 21 months’ imprisonment, the Judge noted:¹⁰

Although the facts are essentially similar to those of your co-defendant, and although the maximum penalty is the same, there needs to be some adjustment to recognise the fact that you have not been found guilty of a charge requiring proof of a specific intent to injure. What is inescapable, however, is that you and your co-defendant acted together, outnumbered the victim, he was vulnerable on the ground, he was badly injured and has suffered very significant consequences.

6      Police v Ailao [2015] NZDC 15548.

7 At [5].

8      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

9      Police v Chok, above n 4, at [14]. See also [13].

10 At [17].

[13]      An uplift of four months was imposed for the driving with excess breath alcohol and driving while disqualified charges. Mr Chok’s previous drink driving conviction was taken into account in this respect. A further uplift of one month was imposed to recognise Mr Chok’s previous convictions for violence and the fact he offended while on bail. That led to a provisional sentence of 26 months’ imprisonment.

[14]      There was nothing in Judge Davidson’s view that would justify any downward adjustment of that sentence. In particular, the Judge noted Mr Chok’s  lack of remorse in his efforts to downplay his offending. Mr Chok’s indication to undertake drug and alcohol rehabilitation was a “last gasp willingness”.¹¹ The final sentence was one of 26 months’ imprisonment.

The appellant’s circumstances

[15]      Mr Chok is 33 years old. He is supported by his mother with whom he  resides and is currently unemployed. He has six previous violence convictions for common assault, one for assault with intent to injure, several breaches of community-based sentences, six previous convictions of driving with excess breath alcohol and two for driving while disqualified.

[16]      His pre-sentence report recommended a sentence of imprisonment despite a suitable electronically monitored (EM) address being available. The report writer noted Mr Chok’s poor compliance with community based sentences and his lack of understanding toward his violent offending. Mr Chok’s motivation to address his offending was assessed as low. It was considered he would benefit from attending  an alcohol and drug assessment.

Mr Ailao’s circumstances

[17]      Mr Ailao is 30 years old. He has previous violent offending convictions including two assault charges and one kidnapping charge. He has multiple breaches of community based sentences. Alcohol abuse and Mr Ailao’s propensity for violence were identified in his pre-sentence report as offending related factors. His

11     At [12] and [20].

likelihood of reoffending was assessed as high and a sentence of imprisonment was recommended. An alcohol and other drug residential rehabilitation programme was deemed appropriate.

Leave to appeal out of time

[18]      As the District Court sentencing decision was given on 30 November 2016 and the appeal was filed on 28 March 2017, the appeal is out of time.¹² Counsel for Mr Chok states the reason the appeal was filed late was because Mr Chok was initially unrepresented when he filed the notice of appeal and that it was filed to the wrong court. In a memorandum of counsel filed on 19 May 2017, counsel requested an adjournment of the appeal hearing pending a legal aid application being assessed, and to receive the District Court file for Mr Ailao. That application was granted.

[19]      In Mikus v R, the Court of Appeal outlined the circumstances of when an extension of time should be granted:¹³

For an application for an extension of time to appeal to be granted, it must be in the interests of justice to do so.¹⁴ As this Court recently said in R v Slavich, extension of time applications will invariably reduce to two questions. First, why the appeal was filed late. Second, what merit, if any,  the prospective appeal point appears to have.¹⁵

[20]      Ms De Silva for the Crown accepted that this was an appropriate case for the grant of leave. I am satisfied Mr Chok’s inability to get legal representation is a sufficient reason for the delay in filing the notice of appeal and grant leave accordingly.

Approach on appeal

[21]      I am to allow Mr Chok’s appeal if I am satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.¹⁶

12     Criminal Procedure Act 2011, s 248(2).

13     Mikus v R [2011] NZCA 298 at [26].

14     R v Knight [1998] 1 NZLR 503 (CA) at 587; R v Lee [2006] 3 NZLR 42 (CA) at [96].

15     R v Slavich [2008] NZCA 116 at [14].

16     Criminal Procedure Act 2011, s 250.

Grounds of appeal

[22]      Mr Turkington, counsel for Mr Chok submitted the disparity in sentence between Mr Ailao and Mr Chok is “gross and unjustifiable”. He submitted the difference of a 26 month final sentence for Mr Chok and a 22 month sentence for  Mr Ailao was significant. He notes that despite the similar backgrounds and  previous convictions of the two offenders, Mr Ailao attracted a shorter term sentence of imprisonment which meant he was eligible for statutory release at one half of the sentence and was not barred by a parole gateway.¹⁷ Mr Chok, by contrast is not eligible for parole until one third of his sentence has been served.¹⁸ He says the proper result for Mr Chok is a sentence of 24 months’ imprisonment.

[23]      In his oral submissions, Mr Turkington sought to distinguish the cases like    R v Stockdale¹⁹ which establish that matters such as eligibility for parole are not matters which a sentencing judge should have regard to in setting the sentence, by referring me firstly to s 86 of the Parole Act and, secondly, to comments by Elias CJ in a dissenting judgment in Morgan v Superintendent, Rimutaka Prison²⁰.

[24]      His argument based on s 86 was that, because of the differing release provisions mandated in s 86 as between short term sentences and long term determinate sentences, the 26 months Mr Chok was sentenced to was a sentence of a different type to the sentence of 22 months that Mr Ailao was sentenced to. He submitted that s 86 had nothing to do with the operation of parole and therefore this case could be distinguished from those cases which have said that eligibility for parole was a matter of the administration of the sentence rather than the penalty itself. He acknowledged that there was no authority supporting this proposition.

[25]      He referred me to [10] in Morgan where the Chief Justice had suggested the removal of an entitlement to release on completion of two thirds of a sentence and the substitution of an obligation to serve the full sentence until expiry date (with an entitlement to apply for parole after one third of the sentence) was a “penalty”.

17     Parole Act 2002, s 86.

18     Section 84(1).

19     R v Stockdale [1981] 2 NZLR 189 (CA).

20    Morgan v Superintendent, Rimutaka Prison [2005] NZSC 26, [2005] 3 NZLR 1.

Analysis

[26]      The Court must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar  offenders   committing   similar   offences   in   similar   circumstances.²¹   Mr Turkington urged upon me the relevance of the Court of Appeal decision in R v Lawson. This case described the test that should be applied when assessing whether to intervene on the grounds of disparity between co-defendant’s:²²

… the test is objective; not subjective. It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

[27]      Judge Davidson twice acknowledged that issues of parity arose in Mr Chok’s case.²³ The Judge noted the facts were essentially similar to those of Mr Ailao and the charges attracted the same maximum penalty. He recorded Mr Ailao had been sentenced on the basis of a two years’ starting point for the injuring with intent to injure charge, which requires proof of a more specific intent.²⁴  In  adopting  a starting point three months less than Mr Ailao’s to account for the differences in charge, the Judge clearly had regard to issues of parity and did not err in this respect.

[28]      Mr Chok’s grievance appears to be with the differences in the final sentences reached. But as noted in Stone v R:²⁵

… when considering parity between two co-offenders’ sentences, it is more important to consider parity of starting points rather than end sentences because as the Court of Appeal observed in R v Mako, “fixing the starting point is the mechanism for seeking consistency in sentencing”.²⁶

[29]      

The difference in final sentence is largely due to Mr Ailao entering guilty pleas, which entitled him to a 20 per cent discount. Mr Ailao’s remorse and rehabilitation steps further entitled him to a slight discount. By contrast, Mr Chok

21     Sentencing Act 2002, s 8(e).

22     R v Lawson [1982] 2 NZLR 219 (CA) at 223.

23     Police v Chok, above n 4, at [13] and [14].

24     At [13] and [17].

25     Stone v R [2016] NZHC 1289 at [23].

26     R v Mako [2000] 2 NZLR 170 (CA).

was clearly not remorseful and his willingness to undertake drug and alcohol rehabilitation  involved   mere   assertion   rather   than   action.   In   that   sense,   Mr Turkington’s submission that there was no meaningful difference between the two offenders is incorrect. The disparity in the end results was wholly justified.

[30]      Mr Turkington’s point on the difference in practical terms of the two sentences adds no weight to Mr Chok’s appeal.

[31]      Mr Turkington’s observations in oral submissions do not support his contention that the two sentences were of such different types that the penalties were different.²⁷ In any event the Chief Justice’s views in Morgan on this point were not shared by the majority.

[32]      It has been a longstanding principle that the statutory regime for parole or other earlier release is not a matter which a sentencing judge should take into account when fixing the length of the nominal sentence. There are no special qualifications in Mr Chok’s case that would warrant the Judge to have taken a different approach.²⁸ There is no substance to Mr Turkington’s argument that, under s 86 of the Parole Act, short term sentences are of a different type to long term determinate sentences. If Mr Chok had pleaded guilty and shown remorse, he would have received the same discount Mr Ailao did.

Decision

[33]For these reasons, I recommend the appeal is dismissed.

Churchman J

Solicitors:

G Turkington, Wellington

Luke Cunningham & Clere, Wellington

27 Refer to [23] to [25] of this judgment.

28 R v Stockdale [1981] 2 NZLR 189 (CA) and Adams on Criminal Law (online looseleaf ed,  Thomson Reuters) at [SA81.04]; Palalagi v Police [2015] NZHC 1832 at [57] and Parole Act 2002, ss 82 and 90.