H v Police HC Whangarei CRI 2008-488-75

[2009] NZHC 61

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2008-488-000075
CRI 2008-488-000076

CRI 2008-488-000077

BETWEEN  H

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 February 2009

Appearances: M J Powell for the Appellant

B M O'Connor for the Respondent

Judgment:      5 February 2009

ORAL JUDGMENT OF PRIESTLEY J (Appeal against sentence)

Counsel:

M J Powell, Barrister, P O Box 1483, Whangarei 0140. Fax: [phone]

B M O’Connor, Crown Solicitor, P O Box 146, Whangarei 0140 Email: [email protected]

H V NEW ZEALAND POLICE HC WHA CRI 2008-488-000075  5 February 2009

[1]      The  appellant  is  22  years  old.    During  his  relatively  short  life  he  has accumulated a large number of convictions.   These include offences of violence, escaping from police custody, resisting arrest, wilful damage, and various offences involving dishonesty.

[2]      The offending which lies behind this appeal  can be broken up into four discrete groups.

a)        Four offences of graffiti with a spray can in Kaitaia on or about 9

September 2008 which were prosecuted by four separate charges of wilful damage under s 11 of the Summary Offences Act 1981.  That offence carries a three month maximum term of imprisonment.

b)Three offences relating to graffiti and damage to police property in the police cells in Whangarei on 10 September 2008.  The wilful damage offences carry the same maximum penalty.   The third charge was defacing property in respect of which the appellant was convicted and discharged.  That charge does not permit a custodial sentence.

c)       Arising out of the  Kaitaia offending on  9  September  a  charge of resisting arrest (3 months imprisonment), being unlawfully on premises, and being in possession of a spray can.  The latter carries a non-custodial sentence.

d)Assault  on  a  female  in  June  2008.    This  charge  was  laid  under s 194(b) of the Crimes Act 1961 and carries a two year maximum.

[3]      The appellant pleaded guilty to all these charges in the Kaitaia District Court on 26 November.  Counsel then acting for him persuaded the Judge to remand for sentence in the Whangarei District Court without the need for a fresh presentence report.  Mr Powell, who did not appear in Kaitaia, appeared on sentence.

[4]      Judge D G Harvey sentenced the appellant in the Whangarei District Court on 28 November 2008.   The appellant appears to have been remanded in custody since the offending.   The total sentences imposed amounted to 10 months imprisonment.  The core of Mr Powell’s competent submission is that this end result is manifestly excessive.  Hence the appeal.

[5]      Although  (supra  [2])  I  have  categorised  the  various  charges  against  the appellant into four groups the Judge dealt with the offending in a slightly different fashion.  To some extent the Judge was misled by the fact that some of the dates on the Kaitaia offending appearing in the informations were incorrect.   Counsel are agreed, so far as my above categorisation is concerned.

[6]      The Judge approached his sentencing task this way:

a)       On three of the Kaitaia wilful damage charges which he probably incorrectly considered occurred on 8 September, all being graffiti charges, he adopted a three month start point and gave a credit of one- third for the guilty plea, arriving at an end sentence of two months imprisonment.

b)In respect of charges relating to possession of a spray can, being found  unlawfully  on  premises,  and  intentional  damage  (the  latter being the fourth of the Kaitaia graffiti charges), he again imposed a two month sentence, to be cumulative.

c)        In  respect  of  the  offending  in  the  Whangarei  Police  cells  on  10

September, he adopted a three month start point (again the maximum) and gave a one-third credit for the guilty plea and arrived at a two month sentence, again cumulative.

d)On the June 2008 charge of male assaults female, he adopted a six months start point giving a third credit for a guilty plea, arriving at a four month sentence, again cumulative.

Background

[7]      I briefly summarise the offending.  The appellant on the night in question had been found on the rear porch area of the Kaitaia Regional Council which was not at that time open to members of the public.   He was found in possession of a gold aerosol spraycan hidden under his armpit.  At the Kaitaia Police Station gold paint was noticed on his hands.  A subsequent check of commercial premises in Kaitaia revealed fresh gold graffiti on four premises being a hotel, a McDonald’s, a squash club, and the St John’s Ambulance building.

[8]      Prior  to  being  apprehended,  the  appellant  had  tried  to  resist  arrest.    He apparently ran some 600 metres before being pursued and, when a police officer was close on his heels, he turned around, shielded his face and charged the police officer.

[9]        Having been removed to Whangarei at that stage the appellant tagged the walls of his cell with a black marker pen.   (In respect of that offending he was discharged.)  He also ripped a blanket to pieces whilst in the police cell.  He pushed his hand up into a small hole in the police cell ceiling, enlarged it, and pulled ceiling material out of the ceiling hole.  His explanation for this was that he was bored.

[10]     In  respect  of  the  June  assault,  the  appellant  became  jealous  of  what  he perceived to be flirting by his girlfriend with another man.  Whilst the couple were lying down in a bedroom at a party, he punched her several times about the head and her body.  It caused swelling and bruising of her left eye.  He exited the bedroom in an agitated state and then stabbed a wall with three knives he had found in the kitchen.

[11]     I have already referred to the appellant’s criminal record.  He has previous offences for wilful damage.  As best as I can calculate it from his criminal record sheet, these amount to some 15 convictions.  This was the number used by the Judge. Counsel made the point there was no evidence as to whether or not these were all graffiti related (the offending in March 2007 clearly was).  There is no available

information on the nature of those offences.  Clearly, however, when one considers the sentencing methodology mandated by the Court of Appeal in R v Taueki [2005] 3

NZLR 372, there would on all these offences be aggravating features relating to the offender, which would amply justify an uplift given that with all the charges he was facing, the appellant had similarly offended before.

Submissions

[12]     Mr Powell’s submissions make the following points.   In thus abbreviating them I am not in any way discounting them.  They were, as I have said, careful and focussed submissions:

•   The Judge was wrong to have used the three month maximum sentence as the start point.

•    The Judge was wrong to impose a cumulative sentence in respect of the

10 September 2008 offending at Whangarei because in essence that offending was of the same anti-social type and could properly be regarded as a continuation of and connected to the offending which had occurred the previous day in Kaitaia.

•    By wrongly dealing with the Kaitaia graffiti offending in two clusters (the

8 September one rather than one, the Judge had incorrectly introduced an impermissible cumulative step into his sentencing techniques.

•   When looking at and comparing other High Court decisions involving the offence of graffiti (Randall v NZ Police CRI 2008-441-8 NAP 5 May

2008, Asher J;  Hill v Police CRI 2006-404-89 AK 31 March 2006, Lang

J), the culpability of graffiti offending had been visited too harshly.

•   When  taking the  necessary step  back,  as  s 85  of  the  Sentencing  Act requires, to examine totality, a ten month sentence, by whatever route, was manifestly excessive.

[13]     There is no challenge by counsel to the four month sentence imposed in respect of the assault on female charge, nor was this cumulative sentence challenged.

[14]     Mr Powell’s submission was that when one took into account the totality principle  and  particularly  if  one  accepted  that  the  Whangarei  offending  was connected to the Kaitaia offending, then the total sentence imposed should have been in the vicinity of six to six and a half months. The end result was thus manifestly excessive.

[15]     In her succinct and robust submissions, Ms O’Connor submitted that the appellant had been lucky.  Far from being manifestly excessive, in her submission, the final sentence imposed was light.

Result

[16]     I agree with Mr Powell that in the facts before him the Judge erred by adopting for the wilful damage charges the maximum penalty of three months as his start point.  It is also clear that the Judge, being misled as I have said by incorrectly amended informations, introduced an extra cumulative step.

[17]     However, graffiti are a social nuisance.   The offending is hard to detect. Private and public property is deliberately and needlessly defaced.  Property owners feel violated and incur needless expense.   I consider that courts need to meet offending of this type with sentences which properly reflect the s 7 purposes of denunciation and deterrence.

[18]     I reject  Mr  Powell’s  submission  that  the  Judge  erred  in  not  imposing  a concurrent sentence in respect of the 10 November offending in the Whangarei police cells.  This was separate offending of a cheeky and deliberate nature in totally different circumstances from the Kaitaia offending.

[19]     It is also apparent from the Judge’s sentencing notes that, although he has clearly, as R v Taueki requires, given a generous one-third discount in respect of all guilty pleas, he does not appear to have made any uplift before arriving at end

sentences to reflect the appellant’s significant criminal history in respect of all the charges with which he was dealing.

[20]     That  said,  there  is  clear  authority  that,  although  there  may  be  different judicial approaches to a particular sentencing methodology, the end result must focus on the principle of totality.  I uphold Mr Powell’s observations in that regard.  The central issue for me is whether this spate of offending, coupled with the appellant’s criminal history, would lead me to a conclusion that ten months was manifestly excessive.

[21]     It is not my function as an appellate Judge to re-sentence the appellant.  To test, however, the Judge’s approach, my own sentencing methodology, rooted as it has to be in R v Taueki, would have been along the following lines. I use the same categorisation of the offences outlined above (supra [2]):

a)       In respect of the Kaitaia wilful damage offending I would probably have used a one to one and a half month start point and added an extra month or thereabouts for the previous history, then discounted by one- third or somewhat less, to arrive at four concurrent sentences of one and a half months.

b)In my judgment, a cumulative sentence in respect of the Whangarei offending  was  amply  justified.     This  was  brazen  and  cheeky offending.  Part of it was similar in kind to the offending for which the appellant was in custody.  Police cells under no circumstances should be the target of wilful damage and destruction of property.  I would have  used  a  two  months  start  point  in  respect  of  the  two  wilful damages charges there, uplifted somewhat to reflect the previous history, and arrived at a two month end sentence after a discount for the guilty plea.   The culpability of the Whangarei offending, in my judgment, was significant.

c)       In  respect  of  the  resisting  arrest  (and  the  being  unlawfully  on premises), without specifying in this case the Taueki methodology, I

would have ended up with one and a half months imprisonment.   I regard resisting arrest, although closely related in time to the wilful damage offending, as justifying a cumulative sentence in the circumstances.   Being unlawfully on premises would properly have been met with a concurrent sentence.   Nonetheless, a cumulative sentence of one and a half months would have resulted.

d)Because  I have  not  been  asked  to  interfere  with  the  four months imposed on the assault on a female charge, I make no changes to that. I do, however, comment that, in my judgment, given the appellant’s history and given the nature of the assault on his victim, a six or eight months sentence would not have been untoward.

Those figures would have brought me to a total cumulative sentence of nine months. I have some sympathy with Ms O’Connor’s submission, however, that a sentencing Court could well have imposed a sterner sentence across the board.

[22]     By these various routes and for these obvious reasons, it follows that I do not consider the ten month term imposed on the appellant was manifestly excessive.  The appeal is thus dismissed.

[23]     I note Ms O’Connor, for some reason, considered this appeal to be so devoid of merit that she sought costs.  Mr Powell, however, informs me that the appellant is in receipt of a grant of legal aid.  Thus I decline to make any costs award against the appellant.

..........................................… Priestley J