Gray v Police HC Dunedin CRI 2011-412-33

[2011] NZHC 1913

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2011-412-33

DAVID TAA-KEREI GRAY

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         25 November 2011

Appearances: L Herbke for the Appellant

M J Grills for the Respondent

Judgment:      25 November 2011

ORAL JUDGMENT OF WHITE J

Solicitors:           Aspinall Joel, Dunedin:   [email protected]

Crown Solicitors, Dunedin:  [email protected]

GRAY V POLICE HC DUN CRI 2011-412-33 25 November 2011

[1]      Mr Gray appeals against his sentence of 19 months’ imprisonment imposed in

the District Court at Dunedin on 29 September 2011 on the following charges:

(a)      two charges of possession of an offensive weapon under s 202A(4)(b) of the Crimes Act 1961 for which the maximum penalty is two years’ imprisonment;

(b)one charge of obstructing the Police under s 23(a) of the Summary Offences Act 1981 for which the maximum penalty is three months’ imprisonment or a $2,000 fine;

(c)      one charge of disorderly behaviour (likely to cause violence) under s 3 of the Summary Offences Act 1981 for which the maximum penalty is three months’ imprisonment or a $2,000 fine;

(d)      one charge of offensive behaviour under s 4(1)(a) of the Summary

Offences Act 1981 for which the maximum penalty is a $1,000 fine;

(e)      one  charge  of  wilful  damage  under  s  11(1)(a)  of  the  Summary Offences Act 1981 for which the maximum penalty is three months’ imprisonment or a $2,000 fine;

(f)      one charge of behaving threateningly under s 21(1)(a) of the Summary Offences Act 1981 for which the maximum penalty is three months’ imprisonment or a $2,000 fine; and

(g)one charge of possession of cannabis under s 7(1)(a) of the Misuse of Drugs Act 1981 for which the maximum penalty is three months’ imprisonment or a $500 fine.

[2]      Mr Gray appeals against his sentence on  the  grounds that  a sentence of intensive supervision was the appropriate sentence, the offending resulting in the charges of threatening behaviour and wilful damage was not the most serious of its kind and that the imposition of cumulative sentences for each charge without a reduction for the totality principle resulted in a manifestly excessive end sentence.

Background

[3]      Around 8.00 pm on 22 December 2010 Mr Gray was seen holding a large long-handled sledge hammer with two hands above his head and verbally assaulting a man at an intersection near the University area in North Dunedin.  Mr Gray then advanced towards a female Campus Watch Officer and swore at her.   Mr Gray discarded the sledge hammer and the Campus Watch Officer phoned the Police.  Mr Gray was  arrested.    He  was  charged  with  possessing  an  offensive  weapon  and subsequently granted bail on 24 December 2010.

[4]      Around 8.00 pm on 27 December 2010 the Police visited Mr Gray at his home at 529 North Road, Dunedin, to do a curfew check.  Mr Gray began verbally abusing the officers, picked up a wooden broom and threatened to hit one officer with the broom.   He eventually put the broom down.   However, when the officer went back inside his marked patrol car Mr Gray kicked the front driver’s door window.   Mr Gray was extremely intoxicated at the time.   He was again charged with possessing an offensive weapon and granted bail on 28 December 2010.

[5]      On 2 January 2011 on Lower Stuart Street, Mr Gray challenged a man to a fist fight.  The same man called the Police when he later saw Mr Gray behaving in a similar threatening way to other members of the public.  When the Police arrived Mr Gray verbally abused  this  man.    Mr  Gray  was  charged  with  behaving  in  a disorderly manner and behaving in an offensive manner.   He was granted bail on

3 January 2011.

[6]      Around 7.20 pm on 29 June 2011 Mr Gray was drinking a bottle of wine in a liquor ban area.  He denied to the Police that the wine was his, but then proceeded to drink out of the bottle.  While speaking to the Police, a small plastic bag containing cannabis fell out of his pocket.  Mr Gray said that someone gave him the cannabis. He was charged with breaching the liquor ban and possession of cannabis and was granted bail again.

[7]      On 28 July 2011 a 60 year old man known to Mr Gray was working on a

building near Mr Gray’s home.   Mr Gray approached the man yelling angrily and

with a clenched fist.  The man believed Mr Gray was going to hit him.  The owner of the property found Mr Gray standing over the man with a clenched fist and grabbed him by the arm before leading him out of the building.  The owner called the Police. Mr Gray said he was angry because the man was charging the owner too much for the repairs.  Mr Gray was charged with threatening behaviour and granted bail.

[8]      Around 1.30 pm on 31 July 2011 Mr Gray expressed interest in helping his landlord with some building work on a cottage near to his residence.  His landlord told him that he was too drunk to help.  Mr Gray then broke two panes of glass in the cottage’s front door.   Mr Gray said he did so out of stress.   He was charged with wilful damage.

[9]      Alcohol addiction was at the heart of all of Mr Gray’s offending.

Previous convictions

[10]     Mr Gray had 58 previous convictions covering the period 1982 to 2010 for a range  of  offences,  including  28  offences  involving  violence,  one  drug-related offence, three for breach of liquor bans and four for breach of community work and escaping lawful custody.

[11]     Mr Gray was sentenced to supervision in 2008 and to a term of six months’ imprisonment in 2009.   He subsequently re-offended on two occasions and was given a suspended sentence and fine.

Personal background

[12]     Mr Gray, who is aged 47, lived in Dunedin on his own.  He was on a sickness benefit for alcohol addiction.

[13]     The Probation Officer in the Pre-Sentence Report identified the key factors contributing to Mr Gray’s offending as “violence propensity, alcohol consumption leading up to the offending and an unhelpful life style balance”.   The Report acknowledged that Mr Gray was now focused on rehabilitation after detoxing in the prison At Risk Unit.

[14]     Mr Gray was assessed as at a medium risk of re-offending, exacerbated if he failed to remain abstinent.  Sentences of home detention and community work were not  recommended.     Instead  a  sentence  of  intensive  supervision  with  special conditions relating to attendance at rehabilitation and alcohol treatment programmes was recommended.

District Court decision

[15]     In sentencing Mr Gray, District Court Judge O’Driscoll, after referring to the offending, the Pre-Sentence Report and the submissions of counsel for Mr Gray, said:

[10]     The issue of whether or not I impose intensive supervision depends really on what I see as the purposes of sentencing. If the purpose of sentencing  today  was  your  needs  and  your  rehabilitation,  then  I  would impose a sentence of intensive supervision.

[11]     I do not regard the primary purpose of sentencing today as your rehabilitation. You  are  aged  47,  you  have  an  extensive  list  of  previous convictions, you have offended while on bail, and you have offended on six separate and discrete times. There is the serious nature of the charges involving weapons and you have previously been sentenced to supervision in

2008.

[12]     Any rehabilitative needs can in my view be met by standard and special conditions of release. I think that the prime purpose of sentencing today is to hold you accountable for your offending, to attempt to deter you from offending, although imprisonment has not done that previously.

[13]      When there are six separate and discrete sets of offending I also think that the protection of the community is also a purpose of sentencing. I do not think that any other sentence or any sentence other than imprisonment would achieve the purposes and principles of sentencing. I therefore intend to sentence you to imprisonment and it will be this way:

(a)       On  the  charge  involving the  sledge  hammer,  I take  as  a starting point 9 months’ imprisonment, I reduce that by three months to take into account your plea of guilty. On that charge   the   sentence   will   be   one   of   six   months’ imprisonment.

(b)       On  the  charge  involving  an  offensive  weapon  with  the broom, I take as a starting point 10 months’ imprisonment. I reduce that by three months, meaning a sentence of seven months’ imprisonment. That will be cumulative and in addition to the six months because it was offending of a

similar  nature  involving  violence,  committed  while  you were on bail.

(c)      On the charge of behaving in a disorderly manner, under s 3

Summary  Offences  Act  1981,  you  will  be  sentenced  to imprisonment for one month. That will be cumulative and in

addition to the 13 months.

(d)       On the charge involving behaving in an offensive manner, that not being imprisonable, you are convicted and discharged.

(e)       On the charge involving cannabis, you are sentenced to one month imprisonment, that is cumulative and in addition to the other sentences.

(f)       On  the charge  of intimidation,  you  are sentenced to two months’ imprisonment, that is cumulative and in addition to the other sentences.

(g)       On the charge of intentional damage, you are also sentenced to  two  months’ imprisonment,  that  is  cumulative  and  in addition to the other sentences I have imposed.

[14]     The effective sentence when those are all added up and all made cumulative  is  one  of  19  months’ imprisonment.  I  impose  standard  and special conditions of release. The standard and special conditions of release will be until six months after the sentence expiry date.

...

[18]      I have considered the issue of the totality principle and I am satisfied that 19 months’ imprisonment and the cumulative [sentences] do not offend against the totality principle when looking at the separate and discrete offending which has occurred and the offending which has occurred while on bail.

Submissions for Mr Gray

[16]     For Mr Gray, Mr Herbke submitted that the purposes and principles of the Sentencing Act 2002 would have been met by a sentence of intensive supervision as that would have been the least restrictive sentence available.  It would have allowed Mr Gray to be regularly monitored and to receive regular counselling.  This would have been appropriate given Mr Gray’s motivation to address his rehabilitative needs which, Mr Herbke submitted, did not lessen with his age.

[17]     Mr Herbke also submitted that the sentences of two months’ imprisonment

for the offences of threatening behaviour and wilful damage, both of which carry

maximum penalties of three months’ imprisonment, meant that the District Court Judge must  have taken  a starting point  near the maximum in each  case before allowing a significant discount for the guilty pleas entered at the earliest possible opportunity.  When the factors relevant to assessing the seriousness of these offences were taken into account, the end sentences for each offence should have been around one  month’s  imprisonment.    As  the  offending  was  closely  related  in  time  and involved the same parties,  the sentences should have been concurrent.

[18]     Mr Herbke then submitted that, in terms of s 85 of the Sentencing Act and the decision of the Court of Appeal in R v Xie,[1] the District Court Judge failed to apply the totality principle correctly because:

[1] R v Xie [2007] 2 NZLR 240.

(a)      The long cumulative sentences of imprisonment for nuisance type offending showed that the District Court Judge failed to reflect on the overall criminality of the offending;

(b)The cumulative sentences of six and seven months’ imprisonment for the two charges of possession of offensive weapons, which occurred within a short period of time and were of similar kind, should have been imposed concurrently; and

(c)      The  sentence  of  19  months’  imprisonment  was  wholly  out  of proportion to the gravity of the overall offending.   Reference was made to the decisions Grafton v Police, Patten v Police and Parker v Police.[2]

[2] Grafton v Police HC Christchurch CRI-2009-409-000056, 25 June 2009; Patten v Police HC Christchurch CRI-2009-409-000074, 28 May 2009; and Parker v Police HC Wellington CRI-2007-485-16, 14 May 2007.

[19]     In his oral submissions this morning, Mr Herbke also relied on the decision in

Excell v Police,[3] particularly at [22], [24] and [25], and the decision of the Court of

Appeal in R v Tait,[4] particularly at [8].

Submissions for the Crown

[3] Excell v Police HC Palmerston North CRI-2009-454-49, 17 February 2010.

[4] R v Tait CA163/04, 29 September 2004.

[20]     For the Crown, Mrs Grills submitted that:

(a)      The District Court Judge approached sentencing in a principled way and in accordance with the provisions of the Sentencing Act.

(b)Cumulative sentences of imprisonment were appropriately adopted in light of s 84(1) as the offences were essentially different in kind.

(c)      The  two  most  serious  charges,  being  possession  of  an  offensive weapon,   were   distinct   in   time   and   circumstance   and   were appropriately dealt with by way of cumulative sentences.

(d)In  assessing  the  level  of  criminality  in  each  case  the  Court  was entitled to regard as an aggravating feature that individual offences were committed while on bail.

(e)      The majority of the offending while on bail had particular significance as an aggravating feature, as it occurred after the accused had made an appearance in Court and been given the further indulgence of being bailed.

(f)      In  determining  the  purposes  of  sentencing  under  s  7,  the  Court correctly identified the following factors:

Aged 47 years;

Extensive list of previous convictions;         Offended while on bail;

Offended on six separate and discreet occasions;         Serious nature of charges involving weapons;

Previously had been sentenced to supervision in 2008.

(g)The District Court Judge specifically considered the appellant’s needs with respect to rehabilitation, but in the circumstances decided that it could not be given primary emphasis over the need for accountability, deterrence and protection of the community.    The appellant’s rehabilitative needs were then met by way of combining the term of imprisonment with standard and special conditions of release.

(h)The combination  of imprisonment  and  conditions  on  release  gave effect to the identified purposes and principles of sentencing and in the circumstances of this case that a sentence of intensive supervision was not appropriate.

(i)The District Court Judge specifically considered the issue of totality and concluded that the total term of imprisonment comprising the imposition of cumulative sentences did not offend against the totality principle.

(j)The presence of a weapon in threatening circumstances on two occasions and the fear or threat of violence present in the remaining incidents (apart from the Misuse of Drugs Act charge) were aggravating features that took this offending beyond that of mere nuisance.

(k)The  term  of  19  months  imprisonment  represented  the  overall criminality of  the  offending  and  the  offender,  was  not  manifestly excessive nor did it offend the totality principle.

Discussion

[21]     As the Court of Appeal made clear in R v Xie,[5] there is no particular way in which total sentences must be put together in respect of multiple offending.   The issue is what is an appropriate total sentence for the various offences.  How that is constructed in the particular circumstances is a matter of individual discretion and

assessment.  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.

[5] R v Xie [2007] 2 NZLR 240.

[22]     In the present case, as Mrs Grills submitted, there are a number of relevant factors to be taken into account when assessing the end sentence of 19 months’ imprisonment for these eight offences.  Those factors include: the offender was aged

47 years; he has an extensive list of previous convictions; all but one of the offences were committed while on bail; he offended on six separate and discrete occasions; the offences involving weapons were serious in their nature; and he had previously been sentenced to supervision in 2008.

[23]     When these factors are taken into account, I do not consider that the end sentence can be described as manifestly excessive for any of the reasons suggested by Mr Herbke for Mr Gray.

[24]     First,  these  factors  meant  that  a  sentence  of  imprisonment  rather  than  a sentence  of intensive  supervision  was  appropriate.   Mr Gray’s  offending in  the period December 2010 to July 2011, mostly while on bail, and his extensive record, including his previous  sentence of supervision, clearly pointed  to a sentence of imprisonment on this occasion.

[25]     Second, the sentences for the offences of threatening behaviour and wilful damage did not necessarily involve starting points near the maximum.  As I pointed out to Mr Herbke in the course of argument, the discounts for the guilty pleas for these offences, in respect of which it was reasonable to assume Mr Gray really had no defences, may well have been at a minimum level on the basis of the Supreme

Court decision in Hessell v R.[6]

[6] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [60] and [74].

[26]     Third, the District Court Judge did consider the issue of totality, and, as Mrs Grills submitted, the presence of a weapon, threatening circumstances on two occasions and the fear or threat of violence present in the remaining incidents, apart from the misuse of drugs charge, were aggravating factors that took this offending

beyond that of mere nuisance.   In my view the term of 19 months’ imprisonment represents the overall criminality of the offending and the offender and is not manifestly excessive.  Nor does it offend the totality principle.

[27]     In reaching this conclusion I have not overlooked Mr Herbke’s references to the decision in Excell v Police and R v Tait.[7]     In respect of Excell v Police, the offender suffered from Asperger’s syndrome and one accepts, as the Judge did in that case, that there may well have been difficulties in a term of imprisonment which do not apply in the present case.  As Mrs Grills submitted, here a term of imprisonment leading  to  total  abstinence,  followed  by  the  special  conditions  imposed  by  the District Court Judge, were likely to lead to rehabilitation.

[7] Excell v Police HC Palmerston North CRI-2009-454-49, 17 February 2010; and R v Tait CA163/04,

29 September 2004.

[28]     In respect of the decision of the Court of Appeal in R v Tait, it is to be noted that the Court said at [8]:

Cumulative  sentences  are  not  generally  appropriate  where  offences  are similar in kind and represent a continuing course of conduct.

While the two offences to which Mr Herbke referred may have been similar in kind, he was right to accept that they were not part of a continuing course of conduct.

[29]     My final reason for accepting that the sentence imposed by the District Court Judge was appropriate is that it is important to recognise that Mr Gray’s intoxication at the time of his offending is not a mitigating factor: s 9(3) of the Sentencing Act.  It is necessary for Mr Gray to address his alcohol addiction.  A term of imprisonment followed by the special conditions imposed by the District Court Judge is more likely to achieve that outcome.

Result

[30]     I am not satisfied that the end sentence imposed by the District Court Judge was manifestly excessive. The appeal is therefore dismissed.

D J White J