Freer v New Zealand Police

[2019] NZHC 337

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-041

[2019] NZHC 337

BETWEEN

SOUL FREER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	4 March 2019
Appearances:	G Vear and V Veikune for Appellant S Teppett for Respondent
Judgment:	4 March 2019

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

FREER v NEW ZEALAND POLICE [2019] NZHC 337 [4 March 2019]

[1]                 Mr Freer pleaded guilty in the District Court to charges of intentional damage,1 breaching District Court bail,2 shoplifting,3 resisting arrest4 and assaulting a police constable with intent to obstruct him.5

[2]                 On 30 January 2019, Judge Roberts sentenced Mr Freer to eight months imprisonment.6 Mr Freer appeals against sentence. He contends the Judge adopted a starting point that was too high, and that he erred in imposing a custodial sentence rather than a lesser sentence in the hierarchy of sentences. He contends the Judge ought to have imposed a sentence of community detention, coupled with a sentence of intensive supervision. This would enable him to obtain treatment and counselling for several underlying issues that are likely to affect his ability to abstain from offending in the future.

The offences

[3]                 The charge of intentional damage arose out of an incident that occurred on    3 February 2018. On that occasion Mr Freer was at his home with his partner when he opened a window. The wind then caused the window to break. An argument ensued, and Mr Freer responded by breaking two further windows. This caused damage valued at several hundred dollars.

[4]                 Mr Freer was arrested shortly after this incident, but released on bail. He was due to appear in Court on 6 March 2018, but failed to appear and a warrant for his arrest was issued.

[5]                 On 4 April 2018, Mr Freer drove to a service station with his partner. His partner put approximately $100 worth of petrol into the vehicle. Mr Freer then drove off without making any attempt to pay for the petrol.

1      Summary Offences Act 1981, s 11(1)(a).

2      Bail Act 2000, s 38.

3      Crimes Act 1961, ss 219 & 223(d).

4      Summary Offences Act 1981, s 23(a).

5      Crimes Act 1961, s 192(2).

6      New Zealand Police v Freer [2019] NZDC 1692.

[6]                 The final and most serious charges arise out of an incident that occurred on 15 May 2018. On that date passers-by heard a commotion occurring at Mr Freer’s address. The police were called and entered the address. Mr Freer then walked out of the address and ignored their entreaties for him to stop.   The police then pursued   Mr Freer down the street. They were obliged to tackle him and to subdue him. In the ensuing struggle, Mr Freer bit one of the constables on the hand. This left three distinct puncture marks. Further struggles occurred before he could be finally subdued. During the course of these, Mr Freer endeavoured to bite the same constable in the leg. Fortunately, he was unable to accomplish his object. There was, however, a final violent struggle before the police could subdue Mr Freer and lodge him in custody. This led to the charges of assault with intent to obstruct and resisting arrest.

The Judge’s decision

[7]                 The Judge adopted a starting point of six months imprisonment on the lead charges of assault with intent to obstruct and resisting arrest. He then added an uplift of two months to reflect the remaining charges. He added a further uplift of two months to reflect the fact that Mr Freer has previous convictions for violent offending, two of which have already led to him spending time in prison. From the resulting sentence of ten months imprisonment, the Judge deducted two months, or 20 per cent, to reflect guilty pleas.

[8]Turning to the issue of home detention, the Judge had this to say:7

[17]      My reasons for declining to transpose sentence can be summarised. Any attack on a police officer is to be condemned. Any attack on a police officer must be met with a sentence that literally serves to remind others of the consequence and sheet home the consequences of misbehaviour to the offender. This was a serious assault, the police officer was bitten.

[18]      Looking at the time span of all this man’s offending, and that is why I engaged in that recital at the outset. As between February 2018 and May 2018, he exhibits behaviour ill-disciplined, violent and dishonest. He has previously been imprisoned for violence. The Court can have no confidence at all in any submission to suggest responsibilities have served to settle him. He has convictions for breaching his release conditions. I do not consider the sentencing principles of denunciation and deterrence would otherwise properly be met.

7      New Zealand Police v Freer, above n 6.

Argument on appeal

[9]                 On Mr Freer’s behalf, Mr Veikune submits that the Judge selected a starting point that was too high on the lead charges. He refers me to Kumar v R.8 In that case the Judge had adopted a starting point of ten months imprisonment on two charges of aggravated assault, one charge of breaching a sentence of home detention and one charge of resisting police. These were laid after two police officers had gone to the appellant’s home and endeavoured to speak to him. He resisted them, and a struggle ensued. The appellant lunged towards one of the officers and attempted to strike him in the head. He also charged at both constables by lowering his head. He then endeavoured to take control of a taser device on the belt of one of the constables. The sentencing Judge had adopted a starting point of ten months imprisonment, but this Court held that a starting point of four months imprisonment was appropriate.

[10]              Mr Veikune submits that the offending in the present case was at approximately the same level of culpability of that in Kumar, although he acknowledged that the bite was more serious than the assaults that occurred in Kumar. He submits, however, that the Judge should not have adopted a starting point beyond four months. Mr Veikune does not take issue with the uplifts that the Judge applied to reflect the remaining charges and Mr Freer’s previous convictions. He submits, however, that the end sentence ought to have been commuted to one of home detention to reflect several factors. These include the fact that Mr Freer has an obvious need for treatment and rehabilitative intervention to deal with issues relating to excessive alcohol consumption and a tendency to react violently to perceived slights from others. In addition, he was diagnosed in 2014 with bipolar disorder. This has resulted in him receiving a benefit in recent years because it affects his ability to obtain employment.

[11]              Mr Veikune submits that Mr Freer’s rehabilitative needs outweigh the need for a deterrent sentence in this case. He also points out that a sentence of home detention is in itself a recognised form of deterrent sentence. More importantly, however, he submits that a sentence of intensive supervision was necessary here in order to ensure Mr Freer received the therapeutic intervention he needs. If that does not occur, he will be released in three  months time  without  any effective  rehabilitative efforts having

8      Kumar v Police [2014] NZHC 1659.

been undertaken. He points out that the special release conditions imposed by the Judge will only last for six months and contends this will not be sufficient to ensure Mr Freer receives the intervention he requires.

Decision

[12]              Having  reviewed  the  authorities  relied  on  by  both  counsel,  I  accept   Mr Veikune’s submission that the starting point of six months imprisonment in the present case was outside the available range.

[13]              I set out below a range of sentences that the courts have imposed on offending similar to that in the present case.9 I consider these demonstrate that a sentence of around four months imprisonment was justified on the lead charges. Applying the same uplifts, however, the end sentence would be one of eight months imprisonment. A discount to reflect guilty pleas would reduce it to around six months imprisonment.

[14]              The real issue, however, is whether or not the sentence should be altered to one of home detention to address the concerns Mr Veikune has raised. On reflection, I think that it should. I acknowledge the need for deterrent sentences in offending such as this. Nevertheless, Mr Freer has now served a month in prison and this will no doubt have had some salutary effect on him. I consider, however, that the interests of the community in the present case lie firmly in the favour of further rehabilitative efforts being undertaken to address the risk that Mr Freer obviously poses. He has provided an address that is suitable for an electronically monitored sentence. I therefore consider that a sentence of community detention, coupled with a lengthy sentence of intensive supervision is necessary to address the concerns that are apparent in Mr Freer’s case.

9      R v Taurere HC Whangarei CRI-2011-488-000030, 7 July 2011 citing at fn 4 Taiapa v R [2011] NZCA 48 (three months for assaulting a Police Officer); R v Chiyabi [2008] NZCA 10 (three months for head butting a Police Officer); Cooper v Police HC Auckland CRI 2009-404-261, 9 November 2009 (one month imprisonment for kicking an officer in the chest and lower body); Einan v Police HC Hamilton CRI 2005-419-20, 23 February 2005 (seven days’ imprisonment for spitting at a Police Officer); Gurney v Police HC Auckland AP116/96, 26 November 1996 (three months’ periodic detention for kneeing a Police Officer in the groin and two months’ periodic detention for biting a Police Officer’s hand); Wall v R [2010] NZCA 494 (12 months’ intensive supervision for spitting at a Police Officer); Rameka v Police HC Whangarei CRI 2010-488-050, 3 December 2010 (150 hours’ community work for assault Charge, no details given); Waata v Police HC Nelson AP10/02, 27 June 2002 ($400 fine for pushing a Police Officer).

Result

[15]              The appeal is accordingly allowed, and the sentence of imprisonment is quashed as from tomorrow. In its place, Mr Freer is sentenced to four months community detention. This reflects the fact that he has already spent one month in prison. In addition, I direct that Mr Freer is to be subject to intensive supervision for a period of 18 months. Both sentences are to be subject to the conditions contained in the pre-sentence report dated 23 January 2019 under the headings “Community Detention” and “Intensive Supervision”.

[16]              The new sentence is to take effect at a time convenient to the prison authorities on 5 March 2019.

Lang J

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Auckland